This article has been written by Diva Rai, 1st year student, Symbiosis Law School, Noida. In this article, she discusses the tort of passing off, its elements, essentials, goodwill, deceptive similarity and remedies.

Meaning of passing off

Passing off means that the defendant-

a- by making a false representation,

b- sells goods,

c- with the intention to deceive the purchaser, and,

d- the plaintiff believes that the goods being sold by are of the defendant.

The protection of commercial goodwill is the objective of the tort of passing off. It ensures that exploitation of the people’s business reputation does not take place. “No man can have any right to present his goods as the goods of someone else” is the underlying philosophy of the tort of passing off.

In countries like the UK, New Zealand and Australia where common law is practiced, the tort of passing off is a common law tort that is used for the enforcement of unregistered trademark rights. A trader’s goodwill is protected by the tort of passing off from misrepresentation. It not only prevents misrepresentation by a trader of his goods or the services being provided but also holds out some connection or association with another when it is false.

Law of Passing off in India

Actionable under common law, the law of passing off in India is mainly to protect the goodwill that is attached to unregistered trademarks. One should not get benefit from the labor of another person is founded in the basic principle of law.

In the Trademarks Act, passing off is defined in section 27 (2), 134 (1) (c) and Section 135. The jurisdiction or power of the district courts in the matter of passing off suits, to try the suit or issue injunction is referred in section 134(1)(c). Establishment of the case and the irreparable injury or loss causes is done by the plaintiff.

No person is entitled to represent the goods of another person as his own. Using of any signs, symbols, marks, devices or some other means wherein a direct false representation to a person is permitted.

Passing off through deception, was a kind of unfair trade or actionable unfair trade through the means of which a person obtains economic benefit of the established reputation by another person. And thus uses in a particular business or trade to be benefitted by it. Such action is regarded as an action for deceit. In Wockhardt Ltd. Vs. Torrent Pharmaceuticals [1], it was passed in a judgement that intention to defraud or deceive, should not be considered to analyze misrepresentation.

Passing Off and Trademark Law

For passing off is a cause of action in a form of intellectual property enforcement which is against the unauthorized use of a get-up. The term get up means the look-and-feel or the external appearance of a product which may include some marks used. These are considered similar to the products of another party and includes unregistered or registered trademarks.

An action for a trademark in passing off where infringement based on a registered trademark is of a particular significance as it is unlikely to be successful. This is as a result of the differences arising between registered mark and the unregistered trademarks.

A statutory law such as the United Kingdom Trade Marks Act 1994 in passing off and is a common law cause of action, providing for the enforcement of registered trademarks through infringement proceedings.

Passing off does not give any names, marks, get-ups or other indices monopoly rights. It does not recognize them as a property in its own right. Passing off and trademark law manage overlapping factual circumstances, but deal with them in different ways. Instead, the passing-off law is designed to avoid misrepresentation in the course of public trade. Example- as in the case of some sort of association between the businesses of two traders.

In the trade mark decision of Trade Mark Opposition Decision in 2001, two brands of confectionery both named “Refreshers”, one made by Swizzels Matlow and the other by Trebor Bassett that had existed since the 1930s. It was held that it would deceive a purchaser as to certain things like their source for some items but not for others. Both coexist in the marketplace.

Essentials of Passing Off

To make one liable for the tort of passing off, the plaintiff must prove the following-

• His goods were known to the public by some mark, distinctive name, appearance, get up,  or badge.
• The defendant made a spoken or written representation by the conduct of others or by word of mouth.
• The use or initiation of the name by the defendant misleads the public and made them believie that the goods by the defendant were of the plaintiff.
• In the ordinary course of business, the defendant’s conduct is likely to mislead or deceive the public at least in case of unwary or incautious, if not the intelligent or careful purchaser.

The three fundamental elements often referred to as the Classic Trinity as restated by the House of Lords in the case of Reckitt & Colman Products Ltd v Borden Inc [2]. It stated the three elements-

1- Goodwill owned by a trader: Firstly the plaintiff must establish reputation or goodwill attached to his services or goods in a suit for passing off.

2- Misrepresentation: The plaintiff must prove a misrepresentation to the public by the defendant. That means that it must be likely to lead the public into believing that the plaintiff has offered the goods and services.

3- Damage to goodwill: The plaintiff needs to demonstrate that a loss has been suffered due to a belief that the services and goods by the defendant are those of the plaintiff.

Modern Elements of Passing off

Lord Diplock in the case of Erven Warnink Vs. Townend [3], gave the modern characteristics of a passing off action. The essential characteristics are-

• Misrepresentation.
• Made in the course of trade by a person.
• The ultimate consumers of goods or services or to prospective customers of his or supplied by him.
• That is calculated as such to injure the goodwill or business  of another trader.
• That causes actual damage to the goodwill or business of the trader by whom the action is brought.

The concept of passing off as stated above  can be explained as in the case of Honda Motors Co. Ltd V Charanjit Singh & Others [4],

Facts of the case: The plaintiff had been using the trademark “HONDA” with respect to the automobiles and power equipment. The defendants for its pressure cookers had started using the mark “HONDA”. The plaintiff brought an action of suit against the defendants for passing of the business of the plaintiff.

Held: The judgment held that the defendant’s use of the mark “Honda” could not be said an honest adoption. The usage of the mark by the defendant was likely to cause confusion in the minds of the public. The application of the plaintiff was therefore allowed.

Goodwill

The action of passing off would lie where a real possibility of the damage to goodwill to trading or a business activity takes place. The plaintiff thus needs to establish goodwill in the goods or services in his business with which the public or the trade associated with the defendant’s activities. It need not be established in the minds of each and every member of the relevant public but must be in a significant section of it.

Deceptive Similarity

Pertinent judgments on the meaning of deceptive similarity and the facts that need to be considered that suggest whether there is a deception in the products or services of the parties concerned are:

(a)- When placed together, two marks may exhibit different differences, but both of them may have the same main idea on the mind, could be deceived a person who is familiar with one mark and does not have the two side by side for comparison. If the goods were permitted to be impressed with the second mark, in the belief that he was dealing with goods bearing the same mark as he was familiar with.

(b)- In the case of Cadila Health Care Ltd. v. Cadila Pharmaceuticals [5], it was stated that in an action on the basis of unregistered trade mark for passing off, to identify the deceptive similarity, the factors to be considered are-

(i)- Nature of the marks that means whether the marks are label marks, word marks or composite marks (both label and word).

(ii)- Degree of resemblance between the marks. If it is phonetically similar then the idea is similar.

(iii)- Nature of goods with respect to their usage as a trademark.

(iv)- The similarity in the character, nature, and performance of the goods of the competitors.

(v)- Class of the purchasers who are to likely buy the goods or services with the marks they require. Their intelligence or education as a degree of care that they are likely to exercise in purchasing those goods.

Loss Due to Passing off

It is of utmost importance that the party that is claiming the benefit under passing off might have incurred a loss due to the opposite party’s action of the passing of their goods or the services as that of the former party. It is essentially important to be observant and vigilant about one’s right as a service provider or as a trader.  Initiation of an appropriate action against illegitimate users to save one’s identity of the business, the money, effort and time involved into creating a law is for those who are aware of their rights and have the means for its enforcement.

Importance of Passing off

Trademarks provide protection to registered goods and services whereas the action of passing off provides protection to the unregistered goods and services. The most important factor is that in both cases, the remedy is the same. But the distinction lies on the fact that trademarks are available only for registered goods whereas passing off is available for unregistered goods. In the case of Durga Dutt vs. Navaratna Pharmaceutical [6], the distinction between passing off and infringement was set by the Supreme Court.

Difference between Passing off and Infringement

Remedies for Passing Off

The remedies granted in case of the tort of passing off are-

1- Injunction:

In B K Engineering Co. v. Ubhi Enterprises [7],

Facts- The appellants manufactured bicycle bells using their house mark B.K. with their name stamped on the product as B K Engineering Co. Under the trademarks of venus and crown, these products were manufactured. The respondents had started manufacturing bicycle bells marked as B.K.-81 which was also stamped on the product U.B.H.I. Enterprises Regd. An application for an interim injunction was made by the appellants, seeking to restrain the opposite party from marketing their products under the said trademark.

Held- Interim relief was declined by a single judge. In allowance to the appeal in contrast to the refusal of the injunction the Court held that:

(i)- the adoption by the defendants of B.K.-81 would lead a person to think that it is a product of either a business associate or an affiliation of B.K. Engineering Co.

(ii)-  there is a risk that some consumers would perceive the connection between the defendant and the plaintiff.

(iii)- the defendants cannot be allowed of the plaintiff’s popularity in cash of their goodwill.

(iv)- if it is not prevented then it would harm the plaintiffʼs business.

(v)- sufficient grounds for the granting of a temporary injunction is present.

2- Damages or Compensation:

In Bengal Waterproof Ltd. v. Bombay Waterproof Mfg. co. [8],  it was stated that:

(i)-  Under the Law of Torts, a common law remedy being an action in substance of deceit is an action for passing off .

(ii)- When a deceitful act is committed, then the person deceived would have a cause of action in his favor.

(iii)- When a person passes off his goods or services as that of another person then he commits the act of such deceit.

3- Account of profits:

(i)- The purpose of the profit account is not to punish the defendant but to avoid unjust enrichment resulting from passing off.

(ii)- An account shall be limited to the actual profits made and attributable to the infringement.

(iii)- The plaintiff shall take the business of the defendant as it is.

References

1. CIVIL APPEAL NO. 9844 OF 2018
2. HL 1990
3. HL 1979
4. 101 (2002) DLT 359, 2003 (26) PTC 1 Del
5. 2001 PTC 541 (SC)
6. AIR 1962 Ker 156
7. AIR 1985 Delhi 210, 27 (1985) DLT 120
8. 1997 (17) PTC 98 (SC)

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This article has been written by Namrata Kandankovi, student of Symbiosis Law School, Pune. The author of this article has discussed the importance of yoga and meditation in a law students’ life, and how would this practice further helps in a legal profession and the concept of sound of silence and has finally discussed the personal experience with respect to yoga as a part of her curriculum.

Introduction

The present-day lifestyle among students’ calls for the need for yoga and meditation, and these two should indeed be placed on an upper pedestal, in order to achieve the overall development of a student. As these two play an important role, they should be inculcated in the student curriculum. Meditation and yoga can contribute directly to improve mental focus and concentration among students. It involves long, deep, slow breathing, as well as the coordination of mental concentration. Yoga combines strength and flexibility exercises with relaxation and meditation. Studies have revealed that yoga has helped cure a wide range of mental and physical health problems, mainly among teens and children. If the present trend of lifestyle as mentioned above is again taken into consideration, it can be said that, in contrary to the olden times, Children these days, rarely involve themselves in sports and other similar aspects and are rather busy with smartphones, videogames and other static entertainment. Hence, Yoga and Meditation becomes a matter of Paramount importance in student life.

Yoga

What is Yoga? Yoga in simple terms can be defined as a spiritual science of self-realization. The origin of Yoga dates back to over five thousand years in the Indian subcontinent. The Indian Sage ‘Patanjali’ defined Yoga as the process of Spiritual Development. In addition to this, he even came up with the different Postures, known as asanas and various Breathing Exercises, which are known as pranayama. He also defined the four limbs of meditative stages, as follows

1. Control of Sense – Pratyahara
2. Concentration – Dharana
3. Meditation – Dhyana
4. Enlightenment – Samadhi

If the present day situation is taken into account, it can be said that the concept of yoga has gained popularity in the western world due to the increasing awarness among peopel around the world and a need for balanced lifestyle. Another vital phenomenon to be taken into consideration is hatha yoga; hatha yoga has become quite popular among the westerns, it seeks to promote health and well-being through physical exercise. The regular practice of asanas and breathing exercises (pranayama) makes the body strong, supple and healthy.

Meditation

Meditation can be defined as a practice where an individual uses a technique, such as focusing their mind on a particular object, thought or activity, to achieve a mentally clear and emotionally calm state, it basically means transforming the mind. Even the origin of meditation has a thing with India, as the sages here were profoundly known for their meditating skills. Various Hindu religions like Jainism, Buddhism, Sikhism give significance to yoga and follow it as a part of their religious practice. It encourages developing concentration, clarity, emotional positivity, and a calm seeing of the true nature of things. By engaging with a particular meditation practice you learn the patterns and habits of your mind, and the practice offers a means to cultivate new, more positive ways of being.

Significant Role of Yoga and Meditation in Student Life

Yoga and meditation if practised regularly may yield very good results among the student community, which can be fighting depression, anxiety etc. which would prove to be beneficial to the students in a long run. Yoga improves physical as well as mental health of an individual while meditation provides peace of mind and control over the body.

1.   Improved concentration– It leads to better grades, balanced blood pressure, decreased absenteeism and tardiness, improved interpersonal relations, and enhanced confidence level, sleep, relief from a headache, improved calmness and a sharper mind.
2.   Weight management– There are lots of problems like obesity and uneasiness in breathing that are related to weight and very common among students. Such children are usually the targets of bullying. Practising yoga daily can help in weight management.
3.   Flexibility– Yet another advantage of practising yoga regularly is the flexibility of the body. Stretching the muscles through yoga poses releases the lactic acid that builds up within your body preventing stiffness, pain, fatigue and tension that can really be painful at times. Stretching increases joint lubrication and stretches the soft tissues of your body. For students playing sports, yoga can decrease the risk of injury through increased range of motion and less fatigue.
4.   Strength– Strength and endurance are very important, especially for young people who have to toggle between various activities all through the week. It increases muscle strength and endurance if practised regularly. It also tends to give a great deal of strength and calmness of mind.
5.   Concentration and sharpness– Meditation and yoga have proved to be of great importance in increasing concentration and sharpness of the brain. Balanced blood pressure, arthritis and asthma can also be controlled through yoga.

How can yoga work wonders for a Lawyer?

Whenever one tries to picture a lawyer, one is sure to imagine a person stiff-backed, wearing a suit and with a briefcase, and further, it is an accepted notion in the society that these are not the easy going people. But according to certain critics, yoga and law are said to make a tremendous combination and go hand in hand. The critics further add that yoga not only helps a person while pursuing law in terms of its studies but also during his professional life if the practice is continued, it would help that person develop professional skills and ethics which again acts as an added advantage and works in favour of the person’s professional lifestyle. Amongst the numerous benefits yoga offers a lawyer, a few of the significant ones are discussed under

• Yoga helps a lawyer understand his clients better

In order to strive for excellence in the profession of law, it is extremely important for a lawyer to understand his clients better, and this sometimes requires a lawyer to read between the lines, and according to the critics’ yoga can provide and develop the sensitivity required for this. For example- If a client while communicating to his lawyer is sounding very emotional and is being deviated from the facts. It is very important for a lawyer to catch this at that moment and to be able to get the required facts from his client and this can be attained by the way of yoga.

• Yoga helps in creating a balance between the right and left side of the brain

The type of training a person undergoes as a lawyer requires both analytical thinking and problem-solving techniques at the same time. Yoga gives a boost to both these techniques by adding mindfulness to them. It finally allows a law student to engage in both aspects with a creative openness.

• Yoga helps to filter out the thoughts which do not need a lawyers attention

In the attainment of this particular feature, meditation helps a person better when compared to yoga. In order to accomplish this, a person is required to spend time meditating on a regular basis and involve himself in mindful practices. In addition to this, a person is also required to practice certain breathing techniques like that of deep breathe in, inhale and exhale, and all of them help in the overall development of a lawyer and his professional life.

• Yoga slows down everything

This particular tactic of yoga comes in handy while there arises a problem, which can be anything related to a  legal professional. While a lawyer is approaching a problem, yoga helps to create a space and instead of rushing at things it enables a lawyer to sit back analyse a problem and further arrive at a solution in a judicious way.

• Yoga helps a lawyer listen mindfully

The most important concept which yoga tries to instil in a person is mindfulness. It helps the person to be focussed in the work which he is doing at that time. This mindfulness helps a lawyer in building a serene environment around him and also to have a good interaction with judges, clients and co-workers. In a legal stream, it becomes very essential for one to think of the plans ahead of him and act accordingly and not to dwell on the past work and in order to ensure this is achieved in a lawyer, the concept of mindfulness becomes important for him to master.

The Sound of Silence

The concept of sound of silence was originally put forth by Buddha, by the way of introduction of the concept of ‘divine eye theory’. It was stated by Buddha that it is always easier to hear the sound during the night time when the surrounding is calm. Once, the person identifies the sound, he is required to give his complete attention to the sound and should continuously listen to it by giving all his concentration to the sound and keep his awareness there and he should further keep going into the sound.

Sound of silence is a concept which is associated with the silent meditation. While a person is meditating, as and when he calms down he experiences the sound of silence in his mind. Many who have experienced it try to explain that it is the sound of high frequency which is the sound of ringing bells. This sound is normally never noticed and a person can acknowledge this only after practising it for quite a lot of time. When the person begins to hear the sound, it is the sign of emptiness. The sound can further be said to be something that is engrossing, drags the attention of the person who is meditating. This sound additionally makes the person turn to it and makes the surroundings around him peaceful and blissful.

How important is the sound of silence among law students?

This practice can be remarkably helpful for the law students, as it helps in enhancing their skills and the onus of inculcating such aspects among the students at a very young age can prove to be greatly helpful as and how they grow up. Law students are considered to be the ones who are required to address the needs of the society in the future and are hence very much essential for the sake of smooth functioning of the society. For this very purpose imbibing the right values in them during their initial years in their courses becomes extremely significant.

A lawyer is required to have the right ethics while dealing with his clients as they are the ones who approach a lawyer for the sake of addressing their grievances and a lawyer is further expected to uphold the concept of equity. Collectively taking all this into consideration it can be said that by inculcating the concept of sound of silence among the students it would further add to their proper working in their profession and this would in a larger perspective add to the well-being of the society in large.

Personal Experience

Throwing light on the Yoga Session conducted as a curriculum in the college, sharing my opinion about the same, I would like to say that the yoga nidra which was conducted as a part of the yoga session was extremely soothing and gave a very positive and good vibe. Further even the various other asanas and meditation practised during the session proved very helpful and it rather seemed like a good break from the academic pressure and a correct alternative or a correct measure to overcome the academic stress and anxiety as one would really feel content and peaceful after the conclusion of each session and in addition to it there was even ample of opportunity to gain the knowledge about various Meditative Practices, Asanas which can be used in the life even further. In Addition to all this the numerous simple exercises taught in the session if practised regularly would keep the body aches away, which are commonly seen amongst students because of their lifestyle, which can be like that of back pain in students as they tend to sit in the same place for longer period of time. And would hence prove to be healthy practices if inculcated in day to day life.

Conclusion

The Yogic and the Meditative practices are the ones which originated in India and they have proved to be of immense importance for the overall well-being of any individual, hence we as Indians have been blessed with such a gem of knowledge and should make use of it in the right way. Thus, it becomes a duty on our part to take this forward with us and make complete use of the same and not let it go. Numerous educational Institutions are these days becoming aware of the importance of Yoga and have started including them under their curriculum. These can be considered a great initiative and should be appreciated and carried forward.

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This article has been written by Namrata Kandankovi, student of Symbiosis Law School, Pune. The author of the article has discussed the emergence of juvenile justice in India, the existing laws in juvenile justice, changes brought in it due to the recent developments and the existence of juvenile justice systems in other countries, ways to give effect to the rehabilitation of juvenile offenders and the changes to be brought in the same.

Introduction – Emergence  of Juvenile Justice Act in India

In the past few decades, there has been an unprecedented increase in the crimes by children who are below the age of 16 years. And the reasons advocated for the development of such behaviour among children are- The upbringing environment of the child, economic conditions, lack of education and parental care. An even more astonishing part of this aspect is that the children are being used as tools for the commission of a crime, and this age group includes especially children aged between 6-12 years, as at this point of time, the minds of innocent children can be manipulated in an easier way.

Under the law – Child is someone who has not attained the age of 18 years and is also not capable of understanding wrong and right or arriving at a reasonable conclusion. In the modern age of law, most of the countries dealing with juvenile acts have adopted the principle of “Doli Incapax” which by the very definition means that the person incapable of understanding the commission of a crime.

Emergence in India

The development of the Juvenile Justice Act in India can be dated back to the British Era. This is because it was during the British period when certain laws were enacted to address the issue of Juvenile delinquency. An example of this can be that of the introduction of the Whipping Act of 1864. This law was passed to punish the juveniles by the way of whipping them for the wrong committed by them and further creating a deterrence in the minds of juveniles in order to bring an end to such acts. The Indian Penal Code, 1860 and the Criminal Procedure Code, 1861, further took this forth by treating the child differently throughout their numerous provisions. The juvenile justice system is considered to be a direct consequence of reforms and developments in western countries.

Existing Juvenile Justice System in India

Juvenile Justice Act was enacted by India in the year 1986. Following this, the general assembly of the United Nations adopted the convention which dealt with the rights of a child, and it was in 1992 when India ratified the UNCRC. The main concern of the convention was to uphold and cherish the right of the child to reintegrate with the society without any judicial proceedings initiated or running against him and in order to attain this the government felt, there was a need to rewrite the existing law. And therefore in the year 2000, the old law was replaced by the new – Juvenile Justice(Care and Protection of Children) Act. And there existed wide differences between the old and the new law. And the changes were made in order to secure the interest of the Juveniles. One of the important changes to be taken into consideration was regarding the role of NGOs.

Section 8, 9, 34, 37 and 45 of the Juvenile Justice Act dealt with the role of NGOs and other organisations – Voluntary organisations may be certified to maintain homes under this act.

Section 45 of Juvenile justice act – The state government is empowered to make rules in order to ensure effective linkages between various governmental, non-governmental, corporate and other community agencies for the sake of rehabilitation and social integration of the child.

Role of NGOs and Social Workers – The basic notion which the NGOs are required to carry forth is offer care and compassion to a child and in addition to this also ensured that his rights are acknowledged and protected. Since the year 1980 the juvenile justice board has seen a shift from welfare to Justice approach, and irrespective of this shift the social workers have continued to pour in all the efforts and have been active participants in health, education and other welfare activities relating to children for a period of past seven years.

And, hence the Juvenile Justice Board which is usually headed by Metropolitan Magistrate or Judicial Magistrate of the first class has an additional requirement to appoint two social workers on board and these social workers should be the selection committee and further, their appointment is made by the state government. The amendment of 2000 is moreover elevated the position of social workers to being a part of the bench which constitutes the Juvenile Justice Board.

Juvenile Justice and Constitution of India

The Constitution of India is the Superior law of the land and the constitution lays down the rights and duties of its citizens which are to be followed. The working of government machinery is also provided by the constitution. And in addition to all this, Part IV of the Indian Constitution provides for Directive Principles of State Policy DPSP- and this is provided mainly to ensure the smooth functioning of the society. And regarding the rights and welfare of the children following has been provided by the constitution

• Right to Free and compulsory education to all the children aged between 6 to 14 years of age – Article 21A
• Right to be protected from any hazardous employment under the age of 14 years – Article 24 of the Indian Constitution.
• Right to be provided with proper Standard of living and Good Nutrition – Article 47 of the Indian Constitution.
• Right to be protected from Human Trafficking and Forced Labour – Article 39 of the Indian Constitution.

The lawmakers while drafting the Juvenile Act of 2015 have hence taken into consideration all the provisions which have been laid down by the constitution for the welfare and protection of the rights of children. And for the same reason chapter IV of the Juvenile Justice Act lays down numerous provisions which have focussed their attention on the betterment and welfare of children and also the reformation and rehabilitation of juveniles in every possible circumstance.

Indian Penal Code and Criminal Procedure Code

The Indian Penal Code came into being on 1st May 1861 and it was considered to be the first establishment of codified law in colonial India, and the IPC dealt with both adult and juvenile offences. Section 82 of IPC lays down – “Nothing is an offence which is done by a child under seven years of age”. And section 83 of IPC enshrines – ‘Nothing is an offence which is done by a child who is above 7 years of age and under 12 who has not attained the sufficient maturity of understanding in order to judge the nature and consequence of his act on that particular occasion’.

Further, there are Section 315 and 316 under IPC which discuss the offence of foeticide and infanticide. If a person does an act which amounts to culpable homicide which results in the quick death of an unborn child then the person will be charged with the act of Culpable Homicide.

There are numerous sections in IPC which discuss the matter of Kidnapping and Abduction. Section 361 states that if a male minor who hasn’t yet attained the age of 16 and a female minor who hasn’t attained the age of 18 if removed from their lawful guardians without their consent then the act is termed as the offence of kidnap.

Section 27 of the Criminal Procedure Code deals with the clause of – Jurisdiction in case of Juveniles, it lays down that – Any offence which is not punishable with death or imprisonment for life, which is committed by a person below the age of 16 years, may be tried by a court which is specially empowered under the children act to decide on such, matters. Or it can be dealt with by any other law for time being in force which is providing for treatment, training and rehabilitation of young offenders.

Section 437 of the Criminal Procedure Code lays down that a child in conflict with law can apply for an Anticipatory Bail. Justice Narayana Pisharadi of Kerala High Court held that the child in the conflict of law has all the rights to apply for anticipatory bail and there is no bar on this by any provisions of Juvenile Justice Act. The anticipatory Bail of a child in conflict with law is maintainable in the High Court or the Court of Sessions.

Juvenile Justice – Is it a Criminal Justice or Social Justice?

This aspect of Juvenile Justice laws draws the attention of critics because in most of the countries of the world the concept of juvenile justice is considered to be that of Criminal Justice, but at the same time the ministry or the department which is responsible for making laws and implementing them is the one from the Department of Social Justice. Further, the results arising out of it because of this mismatch are the following

• There arises a tension between the Protective and Rehabilitative approach of Juvenile Justice and the traditional approach of dealing with the crime.
• There will be ample scope for discrimination among the juveniles which will be based on the nature of the offence at every stage.
• There even arises a confusion in the law and its administration.

Changes brought in JJ Act in the wake of recent developments

The frightful Nirbhaya Case of December 16, 2012, brought the whole nation under shock and there was a dire need to make changes in the then existing juvenile laws as one of the convicts of Nirbhaya case was six months away from the completion of 18 years during the time of commission of the crime and he was considered to be the one accused with being most heinous with regard to the crime.

It was on December 22, 2015, that the Rajya Sabha finally passed the juvenile justice bill.

• The new law permits juveniles between the age of 16-18 years to be tried as adults if they are accused of committing an offence of heinous nature.
• That group of 16-18 years will be further examined by the juvenile justice board and this is done in order to know if the crime was committed by that person as an adult or a child.
• The juvenile justice board is required to consist of a team of psychologists and social experts and this is made in order to ensure that the rights of a juvenile are protected if the crime was committed by him as a child.
• Every district in the country must have a Juvenile Justice and additionally a child welfare committees, which come into play as a consequence of the passage of the bill.

Juvenile Justice Systems in other countries

It was on 20th November 1989 that the General Assembly of the United Nations adopted the conventions of rights of a child, and this convention even prescribes a set of standard to be adhered by all the member states and should strive to serve the best interest of a child. It can also be said that international conventions and instruments have contributed in an immense way to the prevention of child abuse. This, in turn, helps on a larger scale for the well-being and development of the child. In addition to this, even international bodies have paid much attention and laid their emphasis on the aspect of the overall development of the child.

Juvenile justice system in the US

The juvenile justice system is considered to be more flexible and easily enactable in the US when compared to other countries. There are two important stages in the juvenile justice system in India which are to be taken note of- In the first stage the police officer has complete rights to keep the child in his own custody or can even immediately release him or even admonish the offender in order to stop him for commission of further crimes of similar nature.

After the completion of the trial in the court, the juvenile offenders are sent either to children homes or any certified schools and this will be based on the order passed by the court.

Under the juvenile justice system in the US, a juvenile will be tried as an adult only in cases where the age of the juvenile is close to adulthood or when the juvenile is found out to be a habitual offender.

Juvenile justice systems in the UK

Juvenile courts came into existence in the year of 1908 in England and their primary aim was to provide the required care and protection to the children. In addition to this, they also focus their attention on removing all the unnecessary aspects from the environment around a child, as this can provide a great opportunity for the reformation of the offenders.

There were two important acts which were brought into being by the English courts which will we be discussed in the following article.

1. The Children and Young Offenders Act, 1993 under this act the juvenile courts of England are conferred with special civil powers to take into account the matter in dispute. In addition to this, it also provides that the cases where the wrongs have been committed by young and child offenders should be tried in the juvenile courts itself and not in any other courts.
2. The Criminal Justice Act 1948, this act is considered to be a new development in the Legislation of England and this act deals with the rights of juvenile offenders. The prime motto of the act was to provide security to a class of offenders and ensure their rehabilitation by sending them to remand homes.

Causes of Juvenile Delinquency in India

There are numerous causes and reasons put forth for juvenile delinquency in India, and it is often difficult to recognise and correct such a behaviour amongst children, and this happens because every individual has a different behavioural matter and especially among children it tends to change over time and hence, it becomes difficult to identify such a behavioural pattern. Following are the causes listed for Juvenile delinquency in India.

• Economic Instability and poverty– Abject poverty and economic instability among families in India is considered to be the major contributing factors to the increased juvenile delinquency. Non-availability of basic resources among numerous people gives rise to delinquency and this further results in habitual tendency to continue in the same line.

• Sexual Indulgence– Children who were subject to unwanted sexual activities or any kind of sexual assault in the early years of their childhood end up exhibiting a repulsive behaviour. Too much sexual variance among boys may further lead to the commission of crimes by them like that of kidnapping and rapes.

• The disintegration of Family– Lack of parent control and care towards their children and disintegration of families add to be the main causes for delinquency. Divorce of the parents and the absence of a caring and affectionate environment in the homes also act as promoters of juvenile delinquency in India.

• The advent of modern lifestyles– The rapidly growing and evolving times make it difficult for a majority of kids and adolescents to cope with and this may further lead to delinquency among the children.

• Migration– Migration acts as one of the major causes of the commission of an offence by the juveniles. For example- migration of boys to deserted and slum areas brings the in contact of anti-social elements and they are very much prone to get affected by them in many possible ways.

How to curb the wrongs committed by juveniles?

Juvenile delinquency in India is defined as the habitual commission of criminal acts or offences by young persons, who are usually below the legal age of maturity. In order to curb the wrongs committed by the juveniles, there are various developments brought into being by the juvenile justice act, and they are discussed as under

Juvenile Justice Board

Whenever an inquiry satisfies the juvenile justice board that the offence committed by the child was a petty offence then they are required to take the following measures

• Allow the child to return home after admonishing him or after properly advising him or her.
• Order to the child to perform community service, as this helps in instilling good values among the children and such a measure is to be undertaken when the offence is of quite a graver nature.
• Get the child to participate in group counselling and similar types of activities as this greatly helps in the rehabilitation of the child.
• The child is required to be released on probation if he was seen to exhibit good conduct.
• When the offence is not of a petty nature and quite grave, then the child should be sent to a special home for a period not exceeding 3 years.
• The child or even his parents can be advised to pay fine, and this further acts as a deterrence.

Proper observational homes and facilities for juveniles

The constitutional guarantees to the juveniles are the same as those promised to the adults and one of the important guarantees among them being a fair trial. However, it is an accepted notion that the adults usually secure the bail faster when compared to that of juveniles. Merely because the juveniles are not punished does not mean their constitutional rights are taken away from them. It is rather a duty cast on the government to ensure the rehabilitation of such offenders happens. In order to ensure this, governments are required to provide proper observational homes. The observational homes come to act as transit points and hence it is important for them to offer vocational training and education to the juveniles and further make sure there is a good atmosphere maintained in the homes in order to benefit the transformation of the juveniles.

Rehabilitation of Juveniles in India

Taking into consideration the prevailing scenario it can be said that there many loopholes when it comes to rehabilitation of juveniles in India. The Juvenile Justice (Care and Protection of Children) Act 2000, is indeed a very good law but at the same time, it lacks the demanded infrastructure. Further, dragging one’s attention to the statistics released every year in India it can again be said that, the juvenile boards in are less than the expected numbers in various districts of India and are also not up to the mark in terms of their efficiency.

The prime essence of juvenile justice boards in India is to have a group of medical officers, social activists who have been adequately trained, counsellors and psychiatrists. The presence of these people would help the board in arriving at the right decision in terms of future actions to be taken with regard to the juveniles committing crimes in India. But the sad reality again is that there is a dearth of these experts and this, in turn, is resulting in not attaining the excepted results by the board. Now, it is the work of each state government to implement all the requirements and ensure there is proper working of the broad in each and every district and it is also leading to the attainment of the desired results.

The aspect of media is also to be taken into account. The attention of media being dragged to the child as either a victim or an offender is very damaging to the child as the children are of tender age and are not generally expected to have the required maturity. Hence, in order to be in line with this, the juvenile justice act had issued the guidelines that, the child’s identity should not be disclosed anywhere in the media and the photographs of the child are not be published anywhere. If there is an inquiry held against a child under the JJ act, then there should be no report in the newspaper or magazine or any news sheet which is allegedly disclosing the name, school or identity of the child. The act further allows such a report to be made only if it is in the interest of the child.

Conclusion

The measures to be taken for the benefits of juveniles can be brought into reality only if there exists a proper linkage between the state and various district governments. Additionally, there is also a requirement for the child rights activities and groups to take up the initiatives of the transformation of juvenile offenders and this would further boost the process and help in bringing the desired change on a larger perspective. The increasing crime rated among the juveniles in the recent times and absence of deterrence among them creates an alarming situation which is to be given full attention to the earliest.

The measures mentioned in the article regarding the curbing of offences by juveniles require special attention and implementation of the same. With the current rate of crimes by juveniles, it is expected to be on a rise in the forthcoming years and therefore needs to be stopped in its initial stages itself.

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This article is written by Amandeep Kaur, a student of Symbiosis Law School, Pune. The author in this article has discussed Juvenile delinquency in India and legislation available. 

Introduction

Juvenile delinquency can be popularly seen in a developing country like India. Many youngsters around the globe get involved with grown-up formal equity framework. Ordinarily, these kids are the ones who are confronting financial issues, so these kids who are surrendered and penniless face high danger of sexual misuse, trafficking. Be that as it may, for kids in struggling with law the long trial procedures of captures can crush their whole adolescence, as a result, a large number of them are decreased to low odds of restoration and joining into society.

Meaning and Aim of Juvenile Justice System

Adolescent Justice System: –

An adolescent is a youngster who isn’t yet mature enough to be viewed as a grown-up. Juvenile Justice manages the treatment of kids in the struggle with the law and furthermore takes a gander at the main drivers of culpable conduct and measures to avert such conduct.

Aims of Juvenile Justice

• It is based on the rights of the child.
• It applies the principle of restorative justice i.e. to restore the balance of a situation disturbed by crime rather than simply meting out punishment.
• This system puts the best interest of the child first.
• The primary objective of this system is to focus on the prevention of crimes and injustice done to the juveniles.

Juvenile Delinquency

Juvenile Delinquency is the involvement of a kid who is between the age of 10 and 17 in illegal activity or behaviour. Adolescent misconduct is likewise used to allude to youngsters who display constant conduct of underhandedness or noncompliance, in order to be considered out of parental control, getting to be plainly subject to legitimate activity by the court framework. Juvenile delinquency is also known as “juvenile offending,” and each state has a separate legal system in place to deal with juveniles who break the law.

Who are Juvenile Delinquents?

Juvenile delinquents are regularly youngsters between the ages of 10 and 17 who have carried out a criminal demonstration. There are two principal sorts of guilty parties: rehash wrongdoers and age particular guilty parties.

• Rehash Wrongdoers– rehash guilty parties are otherwise called “life-course constant wrongdoers.” These adolescent delinquents start culpable or hinting at other solitary conduct amid pre-adulthood. Rehash guilty parties keep on engaging in criminal exercises or forceful practices even after they enter adulthood.
• Age-particular guilty parties- Age-Specific Offenders indicate adolescent reprobate conduct starts amid youthfulness. Not at all like the rehash wrongdoers, in any case, the practices of the age-particular guilty party closes before the minor turns into a grown-up.

The practices that an adolescent shows amid youthfulness are frequently a decent marker of the kind of guilty party he will progress toward becoming. While age-specific offenders leave their delinquent behaviour behind when they enter adulthood, they often have more mental health problems, engage in substance abuse, and have greater financial problems than adults who were never delinquent as juveniles.

In the case of Gopinath Ghosh v. State of West Bengal, the accused had given his age as much above the cut-off age prescribed for being a child. However, in this case, the court not only allowed the plea of child status to be raised for the first time but also referred the matter to the sessions judge for a determination of the age of the accused. Approving this approach, the Supreme Court in Rajinder Chandra v State of Chhattisgarh, further laid down that the standard of proof for age determination is the degree of probability and not proof beyond a reasonable doubt.

Risk Factors and Predictors of Juvenile Delinquency

Numerous kids end up noticeably adolescent delinquents early, frequently between the ages of 6 and 12 years. Numerous adolescent practices amid the pre-high schooler and young years might be viewed as ordinary conduct for kids, as they extend their limits, and battle to build up their self discernment. There are, in any case, certain signs that a child may be going an awful way.

Indicators of adolescent misconducts may show up as ahead of schedule as preschool, and frequently include:

• Abnormal or moderate advancement of essential abilities, for example, discourse and dialect.
• Chronic infringement of the principles.
• Serious forceful conduct toward different understudies or instructors.

Studies have discovered that various life conditions constitute chance components for a youngster to end up noticeably an adolescent reprobate. While these are numerous and changed, the most well-known hazard factors for adolescent misconduct include:

• Authoritarian Parenting – characterized by the use of harsh disciplinary methods, and refusal to justify disciplinary actions, other than by saying “because I said so.”
• Peer Association – usually resulting from leaving adolescents unsupervised, encouraging a child to engage in bad behaviours when acting with his peer group.
• Low Socioeconomic Status
• Permissive Parenting – characterized by lack of consequences for bad behaviour, permissive parenting can be broken down into two subcategories: (1) neglectful parenting, which is a lack of monitoring a child’s activities, and (2) indulgent parenting, which is the enablement of bad behaviour.
• Poor School Performance
• Peer Rejection
• ADHD and other mental disorders

History and Evolution of Juvenile Delinquency in India

Apprentices Act of 1850

It was the first legislation which was passed in the colonial period for dealing with children who had done something in conflict with the law. According to this act, the children who have committed some petty offences shall not be sent to prison but to treat them as apprentices i.e. a person who is undergoing a course training in industry or under any establishment.

Stand of Indian Constitution

Article 15(3), Article 39 clause(e) and (f), Article 45 and 47, force an essential duty of guaranteeing the necessities of kids and of securing their fundamental Human Rights. The General Assembly of United Nations received the Convention on Rights of the Child in November 1989 and laid the norms to be trailed by all part States in ensuring the enthusiasm of the kid. It additionally underscored on social reintegration of youngster casualties.

The Indian Penal Code Act, 1860 and Criminal Strategy Code, 1861 treating kid diversely through different methodology. Act XIX of 1850, 1876 reformatory schools act, the Borstal School Act, Children’s Act of 1920, and other state-specific legislation like Bengal Children’s Act, Madras Children’s Act to address neglected and deviant children’s these laws gave delinquents some special provisions regarding their Institutionalization and rehabilitation.

The primary formal enactment on adolescent equity in India came in 1850 with the Apprentice Act, 1850 which required that youngsters between the ages of 10-18 indicted in courts to be given professional preparing as a component of their recovery procedure. This demonstration was transplanted by the Reformatory Schools Act, 1897 along these lines gave that youngsters up to the age of 15 might be sent to the reformatory cell, and later the Juvenile Justice Act 1986 gave a uniform component of Juvenile Justice. This demonstration was supplanted by the Juvenile Justice (Care and Protection) Act, 2000.

Different Stages of Legislation

Juvenile Justice Act, 1986

Truth be told the indigenous speculation on Juvenile Justice has been staying informed concerning the worldwide patterns in this field. With the reception of the United Nations Standard Minimum Rules for the organization of the Juvenile Justice, India was the main nation to advance its framework in the light of the standards articulated in that. Obviously, alternate targets were to lay down a uniform lawful structure for Juvenile Justice, to give towards a specific approach towards the counteractive action and control of adolescent wrongdoing, to spell out the apparatus and framework for Juvenile Justice operations, to build up standards and measures for the organization of Juvenile Justice, to create proper linkages and coordination between the formal framework and deliberate offices and to constitute unique offenses in connection to adolescents and to recommend discipline thereof.

Keeping in mind the end goal to understand this objective, the Act soaks up the basic components of all the due procedures and participatory models. The new law without a doubt puts a difficult obligation on the state to properly outfit the assets from different segments of financial advancement in guaranteeing the prosperity and welfare of adolescents and an opportunity to recover from the struggle they went through.

Juvenile Justice (Care and Protection of Children) Act, 2000

The JJ Act 1986 required that the prior framework worked around the execution of the then accessible Children’s Acts be rebuilt. Be that as it may, because of non-attendance of national accord on the time span for such a rebuilding, the means were taken by a large portion of the State Governments were still intensely shy of the declared objectives. So as to support and institutionalize the approach towards adolescent equity with regards to the significant arrangements of the Constitution of India and International commitments in such manner, the Government of India re-enacted the Juvenile Justice (Care and Protection of the Children) Act, 2000. For this, a Working Group was set up and the Act has been implemented since April 1, 2001, to manage the kids inside its domain.

Juvenile Justice (Care and Protection of Children) Act, 2014

Adolescent Justice (Care and Protection of Children) Act, 2014 means to supersede the existing Indian adolescent misconduct law i.e. Adolescent Justice (Care and Protection of Children) Act, 2000, with the goal that adolescent criminals in the age gathering of 16– 18 can be attempted as grown-ups for genuine wrongdoings. It was passed on 7 May 2015 by the Lok Sabha consistently and it is currently pending in the Rajya Sabha. Adolescent Justice (Care and Protection of Children) Act, 2014 will permit a Juvenile Justice Board, which would incorporate analysts and sociologists, to choose whether an adolescent criminal in the age gathering of 16– 18 should attempt as a grown-up or not. The bill presented ideas from the Hague Convention on Protection of Children and Cooperation in Respect of Inter-Country Adoption, 1993 which were absent in the past demonstration. The bill likewise tries to influence the selection to the procedure of stranded, deserted and surrendered kids more streamlined.

Following is the table statistics showing the recent development in comparison mode

Critical Analysis and Recommendations

It isn’t sufficient to order elegant laws, however, the execution ought to be finished and culminate. Under the watchful eye of bringing the law into constraint, the enactment ought to consider the foundation required to actualize the law and money related consequences associated with executing the law. With no discourse with regards to the likelihood/possibility of the usage, laws are brought into drive immediately. Subsequently, there is a disappointment in the execution of the laws.

Suggestions and Recommendations

Children and protection had been accepted as the responsibilities of modern welfare. Through social welfare programs and the JJ Act, States have undertaken the responsibility of ensuring developmental opportunities to children living in conditions of want and showing signs of social maladjustment. But the fragmented implementation and malfunctioning of the various organs under the JJ Act have brushed off the basic fundamental principle of different policies. Hence there is a need to transform this approach towards juvenile justice into a ‘system’ of juvenile justice. The first and foremost requirement is to think clearly about the direction of change.

1. Formulation of Minimum Standards-  A child cannot develop into a normal human being by the normal provision of food, shelter and clothing. It is necessary to formulate minimum standards of services for various community and institutional services for children under the JJ Act. The qualifications, salary structure, staff pattern, the architecture of the building, and other factors should be in accordance with the objective of providing alternative family care to the juveniles, ultimately leading to their rehabilitation in society.
2. National Commission for Children– A national commission for children’s welfare was suggested by the high-level committee constituted by the Supreme Court in a public interest petition for basic facilities for children engaged in the fireworks industry in Madras and Sivakasi in the early 1990s. The government has reiterated its desire to constitute one on several occasions subsequently, but one has still to be constituted.
3. Strategy for Change– Probation and other community-based programs cost less than institutionalization. They should also be preferred for their potential for ensuring better care and rehabilitation for juveniles. The state has paid some attention to children but other more demanding pressure groups and priorities deemed necessary have been able to divert the resources for their causes.
4. Special Training Programme-A special training program must be prepared and the officers of the Board including the Principal Magistrate should be given training of child psychology and child welfare.
5. Sports and Functional Programmes-For better welfare of juvenile games, sports and other functional programs may be organized in observation home and institution and encourage the juvenile to participate in these programs so they connect themselves with society. During festival seasons some cultural programs should be organized in the homes for the inmates with the assistance of voluntary organizations.
6. Education and Schooling– Schooling of the children in the homes up to the age of 14 should be made compulsory. They should be given the best of the facilities and opportunities like any Boarding school (hostel) making a course of moral science and civics compulsory for those who are in homes. For the welfare of juvenile, he must be allowed to go on leave and released on license during the examination so that he can continue with his studies. Sponsorships should be provided for the education of juveniles in good institutions. Personality enhancement courses should be organized.
7. Courses and Seminars-Orientation courses, seminars and awareness programs should be organized by government on juvenile justice on regular intervals to enable the functionaries to imbibe the message discussed and conveyed to them.
8. Providing Assistance-A social worker may be associated with the investigation made by the police officer. In the child cell, at least one lady police officer should be posted.
9. Needed Change-Unless a more effective lobby is generated for children, it may not be possible to bring about a change in the policy towards children whether for the purposes of finding resources or for implementing the statutory provisions or for a continuous review of policy and implementation patterns relating to children.

Conclusion

Children are all around us. They represent about a quarter of the world’s population. They are not equipped to defend themselves; they must depend on what is given to them. They are victims of circumstances. They bring us joy, they bring us tears, and they are our reason to hope. They are your children, they are my children and they are the children of the world. In India, one will find children starving for food, begging on the streets, deprived of basic necessities of life and such children amounts to almost half of the total children in the country. Now is the time when the intervention of the State is necessary for such matters.

References

[1] Legaldictionary.net/juvenile-delinquency/

[2] www.legalservices.com

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This article is written by Amandeep Kaur, a student of Symbiosis Law School, Pune. The author in this article has discussed in brief about the principles of a fair trial in India and related provisions.

Introduction

The main aim of the Criminal Justice-System of India is to ensure fair and impartial trial of each and every accused who has been put behind bars in the Indian territory. Our country follows the adversary system for conducting the trial of an accused. Under this system, it is the prosecution who has to prove the guilt of the accused beyond a reasonable doubt. The Criminal-Justice-System of India follows some principles to ensure fair trial but still, India lags behind in the Rule of Law Index. According to the World Justice Project(WJP), 2019 Rule of Law Index India has been ranked 68 out of 128 countries.

Principles of Fair Trial under the Adversary System

The Indian Judiciary has explained the need and importance of the concept of Fair Trial in a number of cases and the Best Bakery Case is among them. In the landmark case of Zahira Habibullah Sheikh and ors vs. State of Gujarat, the Supreme Court has defined fair trial as a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. The SC said that a denial of a fair trial is as much injustice to the accused as is to the victim and the society.

Following are the principles of a fair trial-

1. Presumption of innocence
2. Independent, impartial and competent judge
3. Expeditious trial
4. Hearing should be in open court
5. Knowledge of accusation and adequate opportunity
6. Trial in presence of accused
7. Evidence to be taken in presence of accused
8. Cross-examination of prosecution witnesses
9. Prohibition of double jeopardy
10. Legal aid

Presumption of innocence

This is the cardinal importance of the Indian Criminal Justice System. Under this principle each and every accused is presumed to be innocent unless proved guilty of a crime beyond reasonable doubts. The burden of proving the accused guilty is on the prosecution. It came from a Latin maxim ‘eiincumbit probation qui dicit, non qui negate’ which means the burden of proof is one that who asserts, and not on the one who denies. The presumption of innocence is present at the beginning of all the criminal trials in an adversary system and the provisions of the criminal codes are so framed that the presumption of innocence is taken into consideration throughout the criminal trial.   

This principle is based on the underlying fact that there must not be a wrongful conviction of an innocent person as this will decrease and shake the confidence of the people in the Indian Judicial System. The presumption of innocence is based on the presumption by law. It has been held by the Supreme Court in the case of State of U.P. v. Naresh and ors, Chandrappa and ors v. State of Karnataka, 2007 that the presumption of innocence is available to the accused under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless proved guilty by the competent court of law in a criminal trial.      

Independent, impartial and competent Judge

The independence of judiciary means that the judiciary is not interfered by the government of India or any political party. The independence of the judiciary is ensured by separating the three organs of the government i.e. legislature, executive and the judiciary. Even the appointment of  Session Judges is not exclusively with the state government but they are appointed with the consultation of High Court. This ensures that they are not under the control of any state government and therefore ensuring their independence.

Impartiality refers to the conduct of the Judges who are supposed to conduct the trial and give the decision of acquittal or conviction without any biases towards the accused or the victim. Here bias refers to a predetermined opinion by a judge towards the accused. Section 479 of the Code of Criminal Procedure, 1973 prohibits the trial of a criminal case by a judge who is either party to the suit or is personally interested in the case.

Competency of a judge refers to the territorial and pecuniary jurisdiction of a judge. The apex court in the case of Shyam Singh v. State of Rajasthan has held that the real test is whether there exists any circumstance according to which a litigant could reasonably apprehend that a bias attributable to a judicial officer must have operated against him in the final decision of the case and not that a bias has actually affected the judgment.

Expeditious Trial

‘Justice delayed is Justice denied’ is popularly used in many of the courtroom dramas, which is actually a well-settled principle of criminal jurisprudence. Expeditious trial refers to the right of speedy trial of an accused. This principle was considered under the concept of a fair trial to avoid unnecessary harassment of the accused. The apex court in the landmark case of Husianara Khatoon v. State of Bihar, 1979 held that speedy trial is an essential ingredient of Article 21 of the Constitution of India and it is the constitutional duty of the state to set up such procedure which would ensure speedy trial of the accused.

Section 309(1) of Cr.PC has provided that all the trials and the proceedings shall be held as expeditiously as possible unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded. After the pep talk which was given by CJI Ranjan Gogoi to the Chief Justices of High Courts for speedy disposal of cases, numerous cases which were pending since more than 10 years have been disposed off.

Hearing should be in open court

The Right to open court is another principle of a fair trial. It is said openness of a court brings more fairness to the trial. The right to open court is not just of the accused but is also a right of the public. Sec-327(1) of Cr.PC provides for a trial in an open court. According to this section open court refers to a place to which the general public may have access. This section also gives the presiding judge discretion to deny the conduct of a criminal trial in an open court.   

Sec-327(2) provides the provision of conducting criminal trials related to rape cases in the camera with the discretion to the presiding Magistrate of giving access to the court to a particular person who filed an application before the court. Similar provisions of conducting a trial in the camera are also found in sec-53 of Indian Divorce Act, 1869, sec-14 of Indian Official Secrets Act, 1923, sec-22(1) of Hindu Marriage Act, 1955, etc.    

Knowledge of accusation and providing adequate opportunity to him

A person may or may not have knowledge of the charges he has been accused of. Therefore according to sec-50 of Cr.PC, it is the duty of the police officer who is arresting the accused without any warrant to provide full particulars of the offences of which the accused is charged. In case of serious offences, the court is required to frame a formal charge in writing and then read and explain the charge to the accused.

One of the vital principles of a fair trial is that one should be given an adequate opportunity to defend himself. It is possible only if the accused is aware of the charges framed against him. Therefore sec-211 of the Cr.PC provides for the right of the accused to have a precise and specific accusation.   

Trial in presence of the accused

One of the principles of a fair trial is that the criminal courts shall not proceed ex parte against the accused person. All the proceedings of a criminal trial should be conducted in the presence of the accused. It is also based on the major reason that every accused should be given an opportunity to prepare his defence which is possible only if he properly understands the case from the prosecution side. Therefore the presence of the accused is necessary for assisting him to prepare his defence. A criminal trial in the absence of the accused is not supported by the principles of natural justice.

Evidence to be taken in presence of accused

Sec-273 of Cr.PC provides that all evidence to be taken in the presence of the accused or his pleader when he is represented by one. Also, the court does not provide for the mandatory attendance of the accused as sec-317 of the code provides the Magistrate with the power to dispense the attendance of the accused if his personal attendance is not mandatory in the interest of justice.

However, if any evidence is given in language not understood by the accused, the whole objective of sec-273 will be destroyed. Therefore sec-279 of the code provides that if any evidence is given in a language not understood by him, then it should be interpreted to him in open court in a language understood by him. However, non-compliance with this provision will not vitiate the trial but will be a mere irregularity.

Cross-examination of prosecution witnesses

In order to check the credibility of the witnesses, their cross-examination is necessary. The prosecution should inform the court in advance of the witnesses he intends to bring. This is based on the underlying principle of giving equal and fair chance to both the parties by means of interrogation of witnesses. The accused should not be denied to examine the prosecution of witnesses.

In the landmark case of Badri v. State of Rajasthan, 1976 the apex court held that where a prosecution witness was not allowed to be cross-examined on a material point with reference to his earlier statement made before the police, his evidence stands untested by cross-examination and cannot be accepted as validating his previous statement.

Prohibition of double jeopardy

This concept of double jeopardy is based on the doctrine of autrefois acquit and autrefios convict which means that if a person is tried and acquitted or convicted of an offence he cannot be tried again for the same offence or on the same facts for any other offence. The prohibition against jeopardy is also a Constitutional right recognized under Article 20(2) of the Indian Constitution which provides that no person shall be prosecuted and punished for the same offence more than once.

Sec-300 of Cr.PC is also embodied with the rule that once a person is convicted or acquitted with an offence he should not be tried with the same offence or with the same facts for any other offence. In S.A. Venkataraman v. Union of India the appellant was dismissed from service as a result of an inquiry under the Public Servants (Inquiries) Act, 1960  after the proceedings were before the Enquiry Commissioner. Thereafter, he was prosecuted before the Court for having committed offences under the Indian Penal Code, and the Prevention of Corruption Act. The Supreme Court held that the proceeding taken before the Enquiry Commissioner did not amount to a prosecution for an offence. It was in the nature of fact-finding to advise the Government for disciplinary action against the appellant. It cannot be said that the person has been prosecuted.     

Legal Aid

Every single person whether innocent or accused has the right to legal aid. This right is also a constitutional right embodied in Article 22(1) of the Indian Constitution. The right to counsel is one of the fundamental rights according to the supreme law in India. In the case of Khatri v. State of Bihar, it was held that the accused is entitled to free legal counsel not only at the stage of trial but also when he is first produced before the Magistrate and also when remanded.

Article 39A has also been introduced by the 42nd  Amendment in 1976 in Indian Constitution to provide free legal aid to the persons who cannot afford a lawyer for his defence. Sections 303 and 304 of  Cr.PC also provide for the right to legal aid through a counsel to every accused.

Conclusion

The Criminal Justice of India is embodied with all the necessary provisions required for a fair trial of an accused but still, the country lags behind in the Rule of Law Index. The major reason behind this is that the delay and other irregularities in the implementation of the above-mentioned principles of a fair trial. For instance, an expeditious trial is one of the major principles of a fair trial, but have you witnessed any criminal case which has been disposed off by the courts within a span of 2 years? The answer to this question will be no. Similarly many other irregularities such as delayed investigations, expensive and complicated legal process, judicial corruption etc. have caused the dropping of Indian Rank in the 2019 Rule of Law Index.      

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This article has been written by Namrata Kandankovi, student of Symbiosis Law School, Pune. The author of this article has discussed in detail the grant of special status to Jammu and Kashmir and the circumstances which made it necessary to make such special provisions and furthermore the aftermath and developments which evolved following the autonomy being given to the state of Jammu and Kashmir.

Historical Background

It was the treaty of Amritsar signed between the British government and  Maharaja Gulab Singh on March 16, 1846, which formulated Jammu and Kashmir into a single political and geographic entity. The newly formed state mainly comprised of three districts – Jammu, Kashmir, and Ladakh. While India saw development in the fight for independence from the British rule, a similar uproar was found in Kashmir to fight against autocracy under the leadership of Sher-i-Kashmir Sheikh Mohammad Abdullah. Consequently, the autocratic rule came down heavily on the people’s freedom movement.

The movement gained ground and momentum when 22 protesters were martyred on July 13, 1931. Further, the National Conference headed by Mohammad Abdullah emerged as a mass movement and was backed by the strong will of people to fight against autocracy. The National Conference headed by people’s movement further witnessed several ups and downs followed by changes in circumstances and fortunes in the leadership of Mohammad Abdullah.

Instrument of Accession

When India attained independence on 15 August 1947, Jammu and Kashmir was one of the 565 princely states of India. While Independence was being granted to India, there was an option handed over to the rulers of princely states, which was they had the discretion either to join one of the two dominions – India or Pakistan or remain as an independent state.

The then ruler of Jammu and Kashmir, Maharaja Hari Singh, did not exercise the option of parting either with India or Pakistan and instead sent a proposal for a Standstill Agreement with both the dominions of India and Pakistan. On the receival of the offer, Pakistan immediately accepted the proposal and communicated the same to the then Prime minister of Jammu and Kashmir. India on the other hand, refused to agree to the offer and instead, advised Maharaja Hari Singh to send representatives to Delhi in order to hold discussions on the said offer.

Developments followed by the Standstill Agreement

Though Pakistan entered into a standstill agreement with India, it still had an eye on Kashmir. The very founder of Pakistan, Mohammad Ali Jinnah, had by the logic of the majority Muslim population in Kashmir assumed that it would become a part of Pakistan. But the events which followed were contrary to this.

Eventually, Pakistan, in order to gain control over the land of Jammu and Kashmir, planned a tribal attack on Kashmir and gave it a green signal. Their prime motto was to drive out the Maharaja of Kashmir from his land. Simultaneously, the Poonch Uprising came into being, which liberated the ideology of “Azad kashmir”. The Poonch uprising was marked by the people of Kashmir revolting against the reign of Maharaja Hari Singh and demand for the secure future of the land of Kashmir.

Such developments further mounted pressure on Hari Singh to decide the course of action for the future of Kashmir. Maharaja Hari Singh, in order to bring the situation under control in the state of Jammu and Kashmir, sought the help of India. Bowing before the demands of the people of Kashmir and to push back the invaders from his land, Hari Singh signed the Instrument of Accession in favour of India on October 26, 1947. The Instrument of Accession which was signed by Hari Singh was the same as that signed by the rulers of other Princely States.

Once Jammu and Kashmir became the legal and constitutional part of India by the way of Instrument of Accession, Indian troops were sent to push back the invaders and vacate the territory from aggression. Immediately after the signing of the Instrument of Accession, an Emergency Government was formed in the state of Kashmir on October 30 1947 with Sheikh Mohammad Abdullah as its head. The army fought the battle and after sustaining numerous sacrifices, was finally successful in driving out the invaders from the territory of Kashmir.

Role of the United Nations in Kashmir Dispute

On January 1, 1948, India took up the issue of Jammu and Kashmir to the United Nations under article 35 of its charter. On the international forum, Pakistan was accused of providing aid to the tribal infiltration in the territory of Kashmir. But all the charges were denied by Pakistan and them, in turn, accused India of annexing the territory of Kashmir and in addition to it destabilizing Pakistan in its infancy.

After hearing the representatives of both India and Pakistan, the UN Security Council opened the debate on the Kashmir issue on 7th January 1948. In order to put an end to the growing tensions between India and Pakistan, the UN Security Council passed a resolution – Resolution 38 to calling both India and Pakistan to a ceasefire and refrain from the aggravating situation.

But Pakistan raised several legalistic and ancillary issues regarding its stance on the issue of Kashmir, and the annexation of India in the issue of Kashmir. The UN in order to resolve this matter and put a final end to the Kashmir dispute passed another resolution on  21st April 1948, which made a final call for the end of hostilities between India and Pakistan and further withdrawal of all Pakistani troops and tribesmen and bulk of Indian soldiers from the land of Kashmir.

Prominent features of Accession

Though the agreement was meant to be temporary, it went on to provide and also maintain a special status to Jammu and Kashmir, and the main features of the same are listed as under:

1. Under the said agreement the state surrendered defence, communication and external affairs.
2. The Instrument of Accession would govern the relationship of state of Jammu and Kashmir with the dominion of India.
3. The state was provided with the autonomy to draft its own Constitution by the way of the separate constituent assembly.
4. In the original constitution (1950) the state of Jammu and Kashmir was constituted in part B category.
5. Laws regarding the union and concurrent List will be made by the centre only with the prior consent of the state of Jammu and Kashmir.
6. Article 370 was incorporated in the Indian Constitution in order to give effect and accommodate the above provisions.

Article 370 of the Indian Constitution

Article 370 of the Indian Constitution enshrines the following modifications in favour of the state of Jammu and Kashmir:

1. Article 370 provides for a Separate Constitution for the state of Jammu and Kashmir.
2. The name, territory or boundary of the state of Jammu and Kashmir cannot be changed without the prior permission of the state legislature.
3. Part VI of the Indian Constitution which deals with the state government is not applicable to the state of Jammu and Kashmir.
4. Special rights are granted to the permanent residents of the state with respect to public employment, settlement and government scholarship and acquisition of immovable property.
5. Directive principles of State policy and Fundamental Duties are not applicable to the state of Jammu and Kashmir.
6. Financial Emergency cannot be imposed in the state of Jammu and Kashmir.
7. High courts of Jammu and Kashmir do not have the authority to issue writs in matters other than Fundamental Rights.
8. National Emergency which would be imposed on the grounds internal disturbance would have an effect on the state of Jammu and Kashmir, except with the concurrence of the state government.
9. The provisions of official language are applicable only in so far as they relate to the official language of the Union.
10. Fifth Schedule and Sixth Schedule of the Indian Constitution are not applicable to the state of Jammu and Kashmir.
11. President rule can be applied to the state of Jammu and Kashmir only on the ground of failure of constitutional machinery of the state constitution and not of the Indian constitution.
12. Residuary power belongs to the state, except in prevention of activities involving terrorist acts, questioning and disrupting the sovereignty and territorial integrity of India and causing insult to the national flag, national anthem and the constitution of India.

Autonomy to the state of Jammu and Kashmir under Article 370

The article 370 of Indian constitution assures a very special status to the state of Jammu and Kashmir, and this status is granted to J&K in consideration with the circumstances under which the princely state entered into the instrument of accession. The constitution of India placed several restrictions on the powers of the central government with regard to that of the state of Jammu and Kashmir.

However, over the recent years, there has been a series of undemocratic practices and measures coming to light which have indeed lead to the erosion of vital rights and powers which were conferred by the article 370 on the state of Jammu and Kashmir. Recent examples which have caused the erosion of rights of Jammu and Kashmir can be quoted as those manifestos and measures put forth by the various parties of the Indian sub-continent which will be discussed in detail in the following segment of this article.

Current Status of Article 370 under the Indian Constitution

There have been various changes and developments brought in the arena of Article 370 over the recent years, and the same will be discussed under different segments of this article

What is Article 370

The very creation of article 370 was made with the view that its existence would be temporary. The signing of the instrument of accession by the ruler of Kashmir was with regard to surrender of only three subjects – External Affairs, Communication and Defence, the surrender was made by the state of Jammu and Kashmir to the dominion of India. Hence, it can be said that the relation which exists between India and the state of Jammu and Kashmir is of exceptional nature and one marked with historical importance.

It can be said that there is power vested on the Union of India to act on the issue independently only if it is by any way related to the three subjects surrendered by the ruler of Jammu and Kashmir or it can either be one of them mentioned in the Instrument of Accession.

 Abrogation of Article 370- For and Against

The abrogation of article 370 is a highly discussed and debatable matter, one can conclude that the arguments for and against the abrogation of the article stand equally balanced.

Arguments favouring the abrogation of article 370

• The prime aspect to be taken into consideration here is that the word “temporary” was attached and this further makes it the only article incorporated for a limited period of time in the Indian constitution.
• The existence of article 370 makes Jammu and Kashmir have its own constitution, and this is not rendering full protection of Fundamental Rights and also there is no mention of minorities. In addition to all this, there exists wide discrimination in terms of gender rights and an example to support this point would be that of property rights- here women are denied equal rights to the property. Moreover, if a woman marries non-resident Kashmiri, then she is denied her rights to the entitlement of property in the in state of Jammu and Kashmir.
• There are instances of many more such demeaning and disastrous rights which exists because of article 370 and this, in turn, undermines the rights of Indians because of the Kashmir Constitution.  
• The former Congress home minister JL Nadda had defined article 370 as “tunnel in power”, the presupposition which existed here was that as and how the state of Jammu and Kashmir would become like any other state, the centre’s power on the state would increase. But, contrary to this, over the passage of time, the desired results did not show up.
• A number of critics even contend that the argument which states that abrogation of article 370 would lead to Jammu and Kashmir no longer being a part of India is baseless and also raises misinformation and creates confusion among the people.
• In the case of Sampat Prakash v.State of Jammu and Kashmir, it was held by the court that the centre should be given more power. In addition to this, there should be wide meaning given to the word “Modification” which is used in article 370(1). This goes on the showcase the robust and unfettered power which the centre has in terms of governance of the state of Jammu and Kashmir.
• Critics even argue that as a nation on cannot allow the separatists demand to persist and it is the right time to bring an end to any such a provision.

Arguments opposing the abrogation of article 370

• The repealing of article 370 has been a poll promise of the BJP government. BJP has been a party which is opposing the continuation of granting of special status to the territory of Jammu and Kashmir.
• The critics argue that revoking the article 370 from the Indian Constitution would actually mean the destruction of the constitutional bridge between India and the state of Jammu and Kashmir.
• Analyzing the consequences of severing Jammu and Kashmir from the territory of India, one would conclude that it would lead to communal clashes and would also give rise to jeopardy to the relationship which exists between Indian and Jammu and Kashmir.
• The contentions put forth by Mehbooba Mufti were that the entire region of Jammu and Kashmir would be threatened if the government goes ahead with the repealing of the article 370. She had further laid down that there was a glimpse of the existence of  ‘heap of explosives’ in the region of J&K and this was found out in the wake of the recent Pulwama attacks.
• Amongst the three wars that have been fought between India and Pakistan, two of them were for the reason of state of Jammu and Kashmir, which were in the year 1947 and 1999. Bringing up the issue of Jammu and Kashmir again to light would lead to more such developments.
• The entire question of the scrapping of article 370 is an extremely sensitive and controversial and hence there is a grave need to handle the matter in a meticulous and mature way.

Whether abrogation can be given effect or not?

There exists a provision for the abrogation of article 370 which is being made by the way of an amendment. This provision for the abrogation of the article has been contemplated under article-368 of the Indian Constitution. The only requirement for this provision to be brought into effect is that such an abrogation of the article 370 should be effected in a non-destructive nature with regard to the basic structure of the constitution.

Now the question which should be taken into consideration is not that of how the abrogation can be affected but whether the abrogation can be made at all and the answer to this question is not positive. On a deeper analysis of the provision of article 368, on would come to know that although the president of India exercises the power to modify or suspend the article 370 of the Indian Constitution but the same can be done only with the recommendation of the constituent assembly of Jammu and Kashmir. Hence, it can be said that the absolute power with regard to article 370, the Union of India and the state assembly of Jammu and Kashmir rests with the state government of Jammu and Kashmir.

The disagreement between the union of India and Jammu and Kashmir regarding article 370 is indispensable and this would result in an endless existence of article 370.

Would the abrogation result in Jammu and Kashmir’s freedom from India?

The contention that the abrogation of article 370 would lead to freedom of Kashmir from the dominion of India has been laid down by politicians like Farooq Abdullah. Looking at the ground reality of the state it can be put forth that. There exists a belief amongst the Kashmiris that scrapping of 370 would change the demography of their region and the same has been instilled in their minds by the political parties. The state of Jammu and Kashmir has been divided into three major parts that are Jammu, Ladakh and Kashmir.

The residents of Ladakh and Kashmir do not express much of objection to the repealing of article 370, and in fact, Ladakh wants to become a union territory. The only objection is from the residents of Kashmir which comprise of a majority of the Muslim population, because of this development there can be no effect given to scraping of the article only in the regions of Ladakh and Jammu excluding the valley.

Pakistan’s stance on abrogation of article 370

Pakistan has stated that it cannot accept the abrogation of article 370 and in support of its point it lays down that the abrogation of article 370 would be in violation of UN resolution. Article 370 being a temporary provision curtails the powers of the Indian constitution with regard to making of laws for the state of Jammu and Kashmir. Pakistan had even given out the statement that it would not accept the scrapping of article 370 in any circumstances and even added that the people of Kashmir would also not accept the same.

While, addressing a press conference, the then chief minister of Jammu and Kashmir Omar Abdullah had stated that, when the country got its independence, there were certain provisions in the Indian Constitution which were kept for the sake of safeguarding the interests of Jammu and Kashmir and the same cannot be revoked by the Indian Constitution in the present day.

What is article 35A?

Article 35A is the provision was incorporated in the state of Jammu and Kashmir in order to decide who all are the persons who would be called the ‘permanent residents’ of the state. The people who come under the ambit of permanent residents are conferred with privileges and special rights on their part. These privileges apply to them in various different aspects like that of acquisition of property in the state, government jobs, public sector jobs, scholarships in education and also public welfare and public aid.

How did Article 35A come into being?

It was in 1954 that article 35 was brought into effect in the Indian Constitution. It was on the advice of the then Jawaharlal Nehru cabinet that, the then president Rajendra Prasad incorporated Article 35 into the Indian Constitution. There was an order passed in 1954 and followed by this there was the Delhi agreement in the year 1952 which was entered into between Jawaharlal Nehru and the  Prime Minister of Jammu and Kashmir Sheikh Abdullah. This provision was the one which extended the citizenship status to the people of Jammu and Kashmir, making them the state subjects.

Hence, it can be finally said that the prime purpose behind the addition of the article 35A to the Indian Constitution as a testimony of special consideration of Indian government for the grant of permanent residence of Jammu and Kashmir.

Importance of article 35A

A petition filed by an NGO- We The Citizens has been underway in the Supreme Court. The petition was filed for the abrogation of both article 370 and 35A and the reason for this is laid down as the article 35A was against the spirit of the constitution and that it further creates a class within the class of the Indian Constitution.

This particular issue is not only that of a political thing but people also expressed their concerns related to the demography of the region of Jammu and Kashmir. The people here fear that the mass migration which would take place if people leave the valley following the abrogation of article 370, it would not only affect the demography of the Kashmir valley but also the communal environment there.

Why does article 35A matter?

The first question to be taken into consideration here is whether article 35A is void because it was not placed for discussion before the parliament before being passed. In March 1961, a five-judge Supreme Court bench was deciding on the case of Puranlal Lakhanpal v. The President of India. In this case the court while discussing if the president has the power to modify the constitution, held that the President thus has the power to modify any existing provisions of article 370, but at the same time, the court was silent on the question of whether such a decision can be taken by the president without the consideration of the parliament. Also, the question of whether the president can introduce a new article without the knowledge of the parliament remains an open question.  

Stance of Political Parties on article-35A

In addition to their poll promise of repealing of article 370, the BJP also promised the repealing of article 35A and ensure the return of Kashmiri Pandits who were forced to leave the valley due to the outburst of terror attacks in the valley. Article 35A of Indian Constitution prohibits non-residents from buying a property or seek government jobs or from availing any other privilege in the disputed territory. With the Modi government backing the move to scrape down article 35A, the Hurriyat leaders have warned that any changes in the current status of article 35A would result in dangerous consequences.

Pakistan, on the other hand, is a legitimate party to the Kashmir dispute has also condemned the attempts of the Indian Government to repeal the article 35A. Pakistan further stated that any such attempts aimed by the Indian government would be clearly aimed at bringing demographic changes in India occupied Kashmir.

Conclusion

The issue of grant of special status to Jammu and Kashmir has been marked by historical importance. Hence, carrying forth the status in accordance with the treaty agreed upon becomes a significant step and the furthermore, thinking on the flip side of it, the fact that the provision was made for a temporary period of time, and hence, now is the right time to repeal the article plays a balanced emphasis on this matter, same is expected to be followed in order to maintain peace and tranquillity in the disputed region of Jammu and Kashmir..

The government is required to take special care and caution while dealing with or making any laws or changes regarding the state of Jammu and Kashmir as it has evolved as a highly disputed region in the wake of difference which arose between India and Pakistan in the recent times. Hence, it can be finally said that if the laws regarding Jammu and Kashmir are met with, in a meticulous way, it would prove to be helpful to the Indian state in the long run.

The post Special Status of Jammu and Kashmir appeared first on iPleaders.

This article is written by Amandeep Kaur, a student of Symbiosis Law School, Pune. The author in this article has given an overview of the Consumer Protection Act, its importance and has also discussed the Consumer Protection Amendment Bill of 2018.

Introduction

 The World Economic Forum has declared that by 2030 with the GDP growth rate of 7.6% India tends to become the 3rd largest Consumer Market. Various aspects are to be taken into consideration while calculating these ranks and one of them is satisfaction of the consumers, which depends upon the existence of the laws supporting them. In India, we have many consumer laws and one such law is the Consumer Protection Act of 1986 (COPRA).

Objectives & Importance of the Act

The Consumer Protection Act was implemented in order to provide better protection to the rights of the consumers. Prior to the implementation of this Act, there was no special act for protecting the consumers and the only remedy available to the consumers was under the Law of Torts i.e filing a civil suit for damages against the shopkeeper or the service provider. This act is based on the doctrine of Caveat Emptor which means that it is the responsibility of the buyer to identify the defects in the good.  

There are various objectives which are sought to be protected under the Consumer Protection Act such as-

1. To promote and protect all the six rights of the consumers which will be discussed later.
2. To provide simple and speedy disposal to the cases by providing quasi-judicial machinery for the redressal of consumer disputes.
3. The act also aims to provide inexpensive redressal to the issues of the consumer.
4. A consumer dispute redressal forum called state commission has been set up in order to settle the disputes of each and every consumer in all the states of the country.

Who is a consumer?

According to Sec-2(1)(d) of the Act, a consumer is a person who purchases any goods or services or hires or avails the services of some person for his own personal use and not for manufacturing or resale of that good. For instance, a person purchasing wheat flour for his own personal use is a consumer but a person purchasing wheat flour for baking bread which he is going to sell in his bakery shape is not a consumer.

Rights and Duties of a Consumer  

The Consumer Protection Act has recognised six rights of a consumer which are :

1. Right to Safety
2. Right to Information
3. Right to Choose
4. Right to be heard
5. Right to Redressal
6. Right to Consumer Education

Right to Safety

This right refers to as the right to be protected against the marketing of goods and services which are hazardous to life and property of the consumers. This right has a very wide scope of application, for instance, this right is available in the areas of electrical appliances, healthcare, automobile, pharmaceuticals, housing, travel etc. Nowadays, each and every field has an office for researchers who research and experiment and launch new products and appliances accordingly. Most of these products are not tested by the producers which prove to be harmful to the consumer. Therefore, after the implementation of this act, there is a mandate for each and every field to get all their products which are a danger to the life to be carefully tested and validated before launching it to the market.

Right to Information

It refers to the right of a consumer to be informed of the quality, quantity, potency, purity, standard and price of the goods and services being sold by the shopkeeper. This right is given to the consumer in order to protect them from the various unfair trade practices conducted by the seller in order to earn more profits. Therefore, it is an obligation on the seller to provide the consumer with all the relevant information of the product he wishes to purchase.

Right to Choose

It is defined in the act as the right to be assured, wherever possible, to have access to a variety of goods and services at competitive prices. It is very common to find one product being sold at different possible prices by different sellers. This reflects the age of market competition which is found in almost all the countries. Therefore it is the right of all the consumers to purchase any product at any price which according to him is the best. A consumer cannot be forced to purchase a product of some particular brand or quality.

Right to be heard

It is referred to as the right to be heard and to be assured that consumers’ interests will receive due consideration at appropriate forums. This right was introduced for a consumer in order to ensure that all the complaints and issues of the consumers are heard duly under the appropriate authority. This is because of this right that almost all the big selling companies have a separate department known as the customer service to help the consumers in case of any dispute or any complaint regarding the quality or quantity of the product.

Right to seek Redressal

If any consumer has been exploited by the seller or faced any unfair trade practices he can seek redressal i.e. compensation or damages under this right. This right ensures that all the issues of the consumers are dealt with and justice is done to him. A proper redressal mechanism has been set up by the government of India such as the consumer courts and forums at district and national level which is discussed later in this article.

Right to Consumer Education

It is the right of each and every person who is a citizen of India to have knowledge about all the laws and policies relating to the consumer. Therefore it is made sure the material regarding the consumer-related laws is easily available all over India but there is still a major part of the population who is not aware of his laws and rights. This is the reason many awareness programmes have been organized by the government of India such as ‘jago grahak Jago’ and the camps organized by various lawyers in the remote areas of the country.        

Duties of a consumer

Every consumer right comes with the opposite duty. Right of one consumer is the duty of the others. Accordingly, there are various duties such as:-

• On purchasing of goods or hiring of any services, it is the duty of the consumer to pay for the same.
• While purchasing something it is his duty to check weights, balances, prices etc. and also to give a careful reading to the labels.
• It is the duty of the consumer to update himself about the various consumer protection schemes.
• Duty to be careful while purchasing and not to fall in the trap of misleading information and advertisements.
• It is the duty of the consumer to not purchase anything from the black markets.
• It is the duty of the consumer to be aware of his rights and duties and also spreading the awareness of the same among others.
• It is the consumers’ duty to file a complaint if the goods which he purchased are defective.
• Each and every consumer should secure the bills of the goods purchased or the services availed so that if in the future he finds the goods or services to be defective he can easily file a complaint against the same and can prove it.

Major definitions

• Complaint– According to Sec-2(1)(c) any allegation made by the consumer regarding any restrictive or unfair trade practice which the traders have adopted such as goods bought by a consumer are defective, services hired or availed by him suffer some deficiency, trader has charged an excessive price of the goods mentioned in the complaint, goods or services which are hazardous to the life and property of the consumer has been offered for sale to the public by the trader or the service provider.  
• Consumer Dispute– according to Sec-2(1)(e) of the act it is a situation when a person denies the allegations filed against him in a complaint.
• Person– according to Sec-2(1)(m) of the act the word person includes a registered or unregistered firm, a Hindu undivided family, co-operative society and any other association which is registered as a person under the Societies Registration Act of 1860.
• Service– according to Sec-2(1)(o) service means any description or any facility which is provided to the potential users and is not rendered free of charge or under a contract of personal service.

Redressal Mechanism

The Consumer Protection Act proposes three-tier redressal mechanism: quasi-judicial machinery at the National, state and district level. The jurisdiction of each consumer redressal forum has been described under this act.

District Consumer Disputes Redressal Forum

Each and every district has a District Consumer Disputes Redressal Forum. According to Sec-11 of this act, this forum has the jurisdiction to entertain complaints and disputes only where the value of the goods or services and the value of the compensation claimed does not exceed Rs 20 Lakhs. The District Forum shall have the same powers as that of a civil  court in the following matters:

• In the summoning and enforcing of attendance of any defendant or witness
• In examining the witness on an oath
• In receiving the evidence on affidavit
• In any other matter which may be prescribed
• Demanding of the report of concerned analysis or test from the appropriate laboratory or from any other authorized relevant source.
• In discovering and producing any document or other material objects which are producible as evidence in the forum.   

The District forum shall consist of a President i.e. the head of the commission who is or has been or is qualified to be a district judge and two other members possessing a bachelors degree from a recognized university and one of them shall be a woman.

The members of a commission shall be the persons of ability, integrity and standing and have adequate knowledge and experience regarding the field of a consumer. Each and every member of the district forum shall either hold the office for a term of 5 years or up to the age of 65 years, whichever is earlier.

State Consumer Disputes Redressal Commission

Each and every State has a State Commission. According to Sec-17 of the act, the pecuniary jurisdiction of a State Commission for entertaining complaints or issues where the value of goods or services and the value of the compensation claimed exceeds Rs. 20 Lakhs but is less than Rs. 1 crore.

The State Commission shall consist of a President and the other two members. The President shall be a person who is or has been qualified to be a Judge of High Court and the other two members shall be possessing a bachelors degree from a recognized university. Out of two members, one shall be a woman.

The members of a commission shall be the persons of ability, integrity and standing and have adequate knowledge and experience regarding the field of a consumer. Each and every member of the district forum shall either hold the office for a term of 5 years or up to the age of 67 years, whichever is earlier.

National Consumer Disputes Redressal Commission

The National Commission was instituted in 1988. It is headed by a sitting or retired Judge of the Supreme Court of India. The present President of the commission is Justice R.K. Agrawal who is a former Judge of the Supreme Court of India. According to Sec-21 of the act, the pecuniary jurisdiction of a National Commission for entertaining complaints or issues where the value of goods or services and the value of the compensation claimed is more than Rs. 1 crore.

The National Commission has been constituted with various powers such as:

• It has the powers of administrative control over all the State Commissions. It can call all the State Commissions or any one of them for periodical returns regarding the institution, disposal and pendency of cases.
• It can adopt a uniform procedure in the hearing of the matters.
• It can provide a speedy grant of copies of documents to the parties.
• It also has a general power of overseeing the functioning of the State Commissions and the District Forums.
• It has the power of providing prior service of the copies of the documents produced by one party to the opposite parties.

In addition to the President of the commission, it shall consist of 4 other members, out of which at least one shall be a woman. All of these members shall fulfil the following conditions to be able to qualify as a member in the National Commission:

1. Their age should not be less than 35 years of age.
2. They shall be possessing a bachelors degree from a recognized university.
3. They shall be a person of ability, integrity and standing and have adequate knowledge and experience regarding the field of a consumer.

Every member of the commission shall hold office for a term of 5 years or up to the age of 70 years whichever is earlier.

Who can file a complaint?

According to sec-2(1)(b) a complainant can be a person who is:

• A consumer, or
• Any voluntary consumer association registered under the Companies Act of 1956 or under any other law for the time being in force, or
• The Central Government or any State Government, who or which makes a complaint, or
• One or more consumers, where there is more than one consumer they shall have the same interest for filing a collective complaint, or
• In the case of death of a consumer, his legal heir or representative who or which makes a complaint.

How to file a Complaint?

The very first step before filing a complaint the aggrieved party should do is to send a notice to the service provider from whom the goods were purchased or the service was availed informing him about the defects in the goods or the deficiency in the service or unfair practice. This notice is sent to the trader or the aggrieved party in order to see if that company or trader is willing to give the compensation or offer any other remedy. If in case the trader or service provider is not willing to provide with any remedy, the aggrieved party shall go ahead with filing a formal complaint.

The next step is to file a formal complaint under the Consumer Protection Act of 1986. Here the aggrieved party does not need to hire a lawyer in order to file a complaint. He can file the complaint on his own. The aggrieved party just need to write down the following contents on a plain paper:

• Name, description and the address of the complainant and of the opposite party or parties
• Facts relating to the complaint and time and venue where it arose
• All the possible documents in support of the allegations contained in the complaint
• The relief or the remedy claimed by the complainant
• The complaint should consist of signatures of the complainant or his authorized agent   

The next step after the drafting of the complaint is to choose the appropriate authority under whom the complaint is to be filed. The complainant shall choose the authority according to pecuniary jurisdiction of his complaint i.e. the total value of the goods or services and the compensation claimed by him. It is to be noted here that the complainant can also file an online complaint on www.consumerhelpline.gov.in

Furthermore, the complainant needs to pay the prescribed court fees according to the pecuniary value of his case. Following are the fee details of the court fees:

For District forums

• Up to Rs 1 lakh: Rs 100
• Between Rs 1-5 lakh:  Rs 200
• Between Rs 5-10 lakh: Rs 400
• Above Rs 10 lakh and up to Rs 20 lakh: Rs 500

For State Commissions

• Above Rs 20 lakh but less than Rs 50 lakh: Rs 2,000
• Above Rs 50 lakh and up to Rs 1 crore: Rs 4,000

For the National Commission

A standard amount of Rs 5,000

The Forum under which the complaint has been filed by the aggrieved party is under a mandate to provide the resolution to the parties within a period of 30 days. If it fails to adhere with the same the party can move to the next commission.

The limitation period for filing a Complaint or Appeal to higher commission

• Filing of a complaint– the complainant can file a case against the trader or the service provider only within two years from the date on which the cause of action arose. The forum may entertain the case in case of delay only if the complainant gives sufficient cause.
• Appeal to the State Commission– according to sec-15 of the act an appeal can be filed to the State Commission by any person who is aggrieved by an order passed by the District Forum within a period of thirty days from the date of an order, in a form and manner prescribed under the act. If an appeal is filed after the expiry of the period of limitation the State Commission has the discretion to entertain that appeal if the complainant shows sufficient cause for not filing an appeal within the limitation period.   
• Appeal to the National Commission– according to sec-19 of the act an appeal can be filed to the National Commission by a person aggrieved by the order passed by the State Commission within 30 days from the date of receipt of order. The appeal to be accompanied by a copy of an affidavit.
• Appeal to the Supreme Court of India– according to sec-23 of the act an appeal may be referred to the Supreme Court of India by the party aggrieved by the order passed by the National Commission within a period of  30 days from the date of order passed.
• Revision Petition to the National Commission– sec-21(b) of the act vests the power in the National Consumer Disputes Redressal Commission to call for the records and pass appropriate orders in any consumer dispute which is either pending or has been decided by the State Commission. The National Commission can exercise its revisional jurisdiction only if it appears to the commission that the State Commission has acted illegally or with irregularity or outside its jurisdiction. Such a Revision Petition can be filed within a period of 90 days from the date of the order passed by the aggrieved party.   

Remedies available under the Act   

The Consumer Protection Act provides consumers with various remedies. Following are the remedies available under the act:

• Removal of Defects– if the consumer after conducting a proper test by using the product finds the product to be defective then the authority can pass an order of removing the defects in the product.
• Replacement of goods
• Refund of the price paid by the consumer while purchasing the product.
• Award of Consumption– a consumer can demand compensation from the trader or service provider if because of his negligence the consumer has suffered some physical or any other loss.
• Removal of Deficiency in Service– the authority can pass orders for removal of the deficiency  if there is any deficiency in delivery of the service, for instance, if the consumer has applied for a loan and has fulfilled all the formalities but the bank is making unnecessary delay in sanctioning the loan, then the court can pass orders to sanction the loan.
• Discontinuance of Unfair/ Restrictive Trade Practice– if a complaint is filed by the consumer against any unfair trade practice in the market, the authority can order an immediate withdrawal of such practice and can also pass an order for banning such trade practice.
• Stopping of sale of hazardous goods
• Withdrawal of hazardous goods from the market.
• Payment of the adequate cost

Consumer Protection Amendment Bill of 2018

The Consumer Protection Act of 1986 has been amended thrice but the act is still not sufficient to deal with challenges such as online transactions, multi-level and digital marketing. The Bill has proposed to make various changes in the ancient act in order to provide better protection to the rights and interests of the consumer. Following are the changes which the Bill proposes:

• Central Protection Councils(CPCs)– in the act of 1986 CPCs just has the authority to promote and protect the rights of consumers but as proposed in the Bill CPCs will be advisory bodies for promotion and protection of consumer rights.
• The ambit of law– the 2018 Bill includes all goods and services, telecom and housing construction and all modes of transactions for consideration while excludes free and personal services.
• Unfair trade practice– this Bill proposes the addition of three more types to the list of unfair trade practices as given in the act of 1986 i.e.

1. Failure to issue a bill or receipt
2. Refusal to accept a good returned within 30 days
3. Disclosure of personal information given in confidence, unless required by law or in public interest.

• Product liability– earlier there was no provision of product liability in the act of 1986 but now this Bill proposes that claim for product liability can be made against the manufacturer, service provider and seller. Moreover, compensation can be obtained by just proving one of the various conditions mentioned in the Bill.  
• The pecuniary jurisdiction of the Commissions– this Bill proposes to change the pecuniary jurisdiction of the commissions to Rs 1 crore for District Forum; between Rs 1 crore and 10 crores for State Commission; and above Rs 10 crores for National Commission.
• Alternate dispute redressal mechanism– there was no such provision in the original act but now the Bill proposes to attach Meditation cells to the District, State and National Commissions.
• E-commerce– the Bill mentions and defines direct selling, e-commerce and electronic service provider which were not there in the act of 1986. Moreover. The central government may prescribe rules for preventing unfair trade practices in e-commerce and direct selling.
• Penalties– the Bill proposes a change in the penalty i.e. imprisonment up to three years or fine not less than Rs 25,000 which can be extended to Rs one lakh or both.

Conclusion

The Consumer Protection Act has proved to be a helping hand to the consumers and protected them from being exploited in the hands of huge companies and famous traders. The traders and the firms are still working on how to make huge profits and one of the ways is by exploiting the consumer.  Corresponding to this the Legislature and the Judiciary are making amendments in the act from time to time but the consumer himself needs to be careful and aware of the people in the market.

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This article is written by Amandeep Kaur, a student of Symbiosis Law School, Pune. The author in this article has discussed the increasing rate of black money, its impact on Indian Economy and the initiatives taken by the government to curb it.

Introduction & Background

Black money is one of the serious issues in many countries and when talking about a country like India it is one of the biggest issues. This issue is not a new issue for India but an issue which has been in continuation since long back. Before understanding the core of this issue one needs to understand its actual meaning. “Black money is money earned through any illegal activity controlled by country regulations” Such money is earned usually in cash from various activities and is not declared for paying tax. The term black money came into existence in the early 20s’.  After the country started developing i.e. in the post-independence period black money came under the limelight but now in the modern times, black money has become a dominative issue in moulding the national policies, determining new economic activities and sometimes determining the law of the country.

Causes for the creation of black money

Corruption

There are many reasons because of which black money is created in our country and corruption is one of them. Corrupt practices such as taking or giving bribes, transactions in black money done by bureaucrats, politicians, civil servants and high profile businessman leads to the creation of black money. The transactions in black money are rarely caught because of the high profile back-ups because of which the culprits are never caught by the government. Every person from every class such as from a B grade employee to a high ranking officer of the government is involved in the creation of black money. Hundreds of cases were registered regarding admission through forged certificates and documents in Delhi University because of which the University came up with an idea of hiring forensic experts for verifying the certificates and documents produced by the students during admissions.

High Taxes

This is another root cause of black money. Higher rate of taxes has forced the earning part of the population for not paying taxes and keeping that part of income illegally with them which is later termed as black money. Tax evasion has led to the generation of a huge amount of black money in India. A middle-class person cannot survive under high rate tax laws because of which tax evasion is quite common.

Foreign Banks

Foreign banks are safety lockers for the hoarders of black money. Especially the Swiss Banks which do not disclose any information of their customers having an account in their banks have become the safest place for those who don’t want to pay taxes and hide their income from the government. Moreover, such banks have encouraged more and more people to generate black money.

According to Baba Ramdev who during agitations against black money alleged that the total amount of black money stored in the Swiss banks ranges between Rs.50-70 lakh crores. If there lays even 50% of truth in this allegation, even then the money stored in Swiss bank is so high that when brought to India it can make huge benefits to the Indian economy.

One of the other reports says that the Indians are at the top of the list among those who have accounts in Swiss banks. The recent cases such as Nirav Modi and Vijay Mallya who are apparently bank corrupts but actually have crores of rupees in the different banks of the world including the popular bank known for Indian Black money i.e. Swiss Bank.

Election Campaigns

As India is a democracy, elections are must which begins by-election campaigns. Elections campaigns are the other main sources which generate black money. Campaigns conducted by the candidates for elections of parliament or assembly elections or any other elections at the local level has led to the generation of crores of black money. During the campaigning for Lok Sabha Elections, 2019 more than Rs 3,166 crore worth cash, liquor, drugs jewellery was seized by the Election Commission of India and all of which was unaccounted.

Donations or Funds

The huge amount of donations given to educational institutions for admissions are another big generator of black money. Such donations are never paid by cheques, even the institutions don’t write such transactions in their official accounts, neither any proper receipt is issued for the made transactions. Nowadays almost all the educational institutions have fixed seats for admission in quota management.

During the exams the leaking of question papers at the examination centres and unfair ways of cheating for helping the students passing in the exams circulation of black money takes place. This unfair means and donations are not only the generator of black money but also the generator of weak educated youth. In the 2019 CBSE Board examination, CBSE used various measures such as live web-streaming from test centres, accountability of centre superintendents and encrypted question papers in some of the subjects for checking paper leaks before the examination.

There are many other factors including the mentioned above which are the reason for the generation of black money such as corrupt tax officials, chit funds, money laundering financial companies, corrupt charitable trusts and societies, smuggling and commissions etc. It is not always the government organizations which are corrupt and are the banks for black money but Non-Governmental Organizations (NGOs) are also reported to be corrupt and fraud.

Impact of Black Money on Indian Economy

Consequences of black money will have an adverse impact on the Indian economy. Along with the economic effects, black money also has social consequences. Some of them are mentioned below:-

• Loss of revenue to the government and running of parallel economy in the country– The increase and spread of black money has a serious impact on the economy as it results in the reduction if government revenues. The black money is in such amount that it is said that a separate economy including only black money is running parallel to the current Indian economy. If only some part of the black money which has been in circulation in the economy could have been paid as taxes to the government, it would have benefitted the Indian economy to a large extent.
• Vicious circle as a result of black money and corruption– As a known fact India already has a number of corrupt practices going on. Black money has added to this corruption by the illegal transactions which are made to hide the black money. The bribes are given by the people to the bureaucrats, government officials, etc. for getting their work done go to the unaccounted books and is never shown as income which adds more black money to the society. Therefore black money is the result of corruption and the already existing corruption is the result of black money which forms a vicious circle which is never going to end unless some serious step is taken by the government.
• Effects on national income and real capita income– Black money is a result of revealing low income to the government while paying tax by the people which also results in low national income of the country. The national income of the country will take a big jump if the amount of black money in circulation is backed up to the national economy of the country. This will also increase the quality of life for the whole country.
• Decrease in the quality of public goods & services– This is somewhat related to the existing corruption in the country. The people who give bribe to the producers and marketing staff or the services provider will naturally get good quality products and services in comparison to the general public who will not be provided with the same products and quality of services has to suffer. The real-life example which is experienced by almost every person that if one goes to any government official for getting some work done, the one who will pay him some bribe will get his work done faster when compared to the one who did not pay anything and will have to wait. This wait can be in days, weeks, months and sometimes even in years. Bribing the government official is quite popular and is popularly known as “the easy way out”.
• Higher taxation and inflation– The main reason behind the taxation is to earn revenues for the expenditures done by the government in order to make a balanced budget. Therefore it is obvious that if the amount of black money which the people are hiding from the government is revealed and included in the budget of the government then the tax rate will surely come down as the revenues which the government wants to earn from the people by imposing high taxes will already be with the government. Similarly, rising prices are the result of too much money in circulation for some particular goods in the market. The Reserve Bank of India itself has admitted that the amount of money in circulation in the Indian economy is quite more than the money inflow on papers.   According to the accounts, there is a particular amount circulating in the market but apparently, the market also includes black money which has not been included as a fact of being black money which leads to more money than the calculated amount. Therefore the amount of goods and services which were there in the market according to the accounted money gets a hike in their prices which results in inflation.
• Difficulty in the formation of monetary and fiscal policy– This is an obvious impact as the government while making these policies is not able to count the exact national income because of the hidden black money which makes such policies unrealistic. Such policies can only have some impact on the Indian economy if these are made with exact calculation keeping in mind the consequences and needs of the people.
• Increased criminal activities in the society– The illegally earned or the black usually gives rise to various illegal activities in society and corruption is one of them. The duration of elections is also the time when the illegal use of black money can be seen. Various terrorist activities have backup power of hoarders of black money which is even harmful to the whole country. The illegal weapons with various groups of unsocial elements are usually bought up by the use of black money. Drugs are the biggest enemy for the youth of the country. The smuggling of drugs in various colleges, hostels, hotels, clubs and bars is done with the help of black money which further leads to various criminal activities. Various murders are the result of black money which are done for political revenge and are done by the contractors engaged by the various political leaders. It is usually said money corrupts the life of even a normal person, and money in excess corrupts excessively. The situation is worse when that money is black money. This black money is a type of excessive money which is spent carelessly and lavishly by the owners of this money. The law sometimes has no effect at a situation which involves black money as money shuts off even the high ranked government officials.

Government initiatives to curb black money

• Black Money Declaration Scheme 2017– This scheme was recently launched by the government headed by Mr Modi. This scheme enabled the black money hoarders to declare their whole illegal income and gave them the time limit to declare it till 31st March 2017. In this scheme, everyone was allowed to disclose their illegal income either with the bank or the post office. It was also said that one has to pay tax, surcharge and penalty which will amount a total of 49.90% of the total unaccounted income. From the unaccounted income, 25% of it was to be deposited in Pradhan Mantri Garib Kalyan Yojna. The deposits made in this scheme were interest-free and were deposited for a fixed period of 4 years without any allowance of withdrawal. Even the person against whom a search or survey operation was initiated was allowed for a declaration under this scheme.
• Demonetization– This was one of the biggest step taken by the Modi’s government to curb black money from the country. 8 November 2016 was the day when the central government declared the demonetization of Rs 500 and Rs 1000 and introduced new notes of Rs 500 and Rs 2000. This initiative was taken by the government because of lacking the economy behind the other economies of the world and to curb various terrorist activities which were generated in the country. Simultaneously to this scheme exchange of old notes was also initiated. RBI declared that old notes were allowed to be deposited till 30 December 2016. A particular limit was set up for exchanging of old notes. Even the withdrawal limit was set up for withdrawing new currency from the ATMs and banks.
• Linking bank accounts with Aadhaar & Pan- The linking of Aadhaar card and Pan card was initiated by the government so that it can keep a track of accounts of each and every citizen and even their bank statements so that the government could have a source to know what a citizen is earning and how much he is paying tax for. This linkage is still in continuation as the government has extended the last date of linking aadhaar and pan with the bank accounts many times. Though this scheme has a huge hand in taking off the fake bank accounts or the ghost accounts. This scheme is also really helpful in tracking suspicious transactions involving huge amounts.
• Benami Transactions (Prohibition) Amendment Act, 2016– The word itself means without any name. This Act prevents Benami transactions and has provision for confiscation of the benami property. Though this act is in existence since 1988 the amendment bill introduced in Lok Sabha on May 13, 2016, seeks to amend this act. The amended law provides that if a person is found guilty of offence under benami transactions by the court, he will be punished with imprisonment for a term not less than 1 year but this can be extended to a maximum of 7 years along with that person will be liable to pay fine which can be maximum up to 25% of the exact market value of the property. The Benami Transactions (Prohibition) Amendment Act, 2016 came into effect on 1st November 2016. This amendment act has been stricter in the confiscation of various benami properties. As many as 140 cases involving property value of more than Rs. 200 crore. These cases involve huge amounts of deposits in bank accounts and immovable properties.
• Double Tax Avoidance Agreement (DTAA)- The DTAA is a treaty in relation to tax signed by India with other countries to prevent the taxpayers from paying the taxes of their earned income twice i.e. prevention from paying both at the resident country as well as the source country. Currently, India has signed this treaty of prevention of double taxation with more than 80 countries of the world. The problem arises when the government has to calculate the total tax of a particular person and there arises imbalance in tax collection on account of global income of individuals. To understand this better there is a real-life example, A is an Indian and he has his business running both in India and in some foreign country, so the income will be earned both in India and in that foreign country. To prevent the person from paying taxes in both the countries government of India signed this treaty with other countries. DTAA is one of the most beneficial agreements signed by India which is helpful for both the taxpayer and the tax collecting authority. It is beneficiary for the tax collecting authority in the sense that the authorities will not face any problem or issues in calculating the tax of an individual and not even the taxpayer has to pay the tax twice in different countries.
• Action against Shell Companies- Basically a shell company is a company which does not have any active business or any major assets. It can also be said as a non-trading company. The government of India in January 2018 decided to cancel the registration of lakh of companies who were suspected of being involved in money laundering activities. Almost 2.26 lakh companies have been stroked off by the government and around 3.09 lakh directors who were in association with these companies. Currently, the government has decided to cancel the registration of more 1.20 lakh companies. State Minister for Corporate Affairs P P Chaudhary, the chairman of the reviewed meeting, has ordered the officials to take strict and immediate actions against the companies which are to be struck off from the official records. Considering much reason more than 1.20 lakh companies have been found for striking-off. Indian Securities Regulator, SEBI otherwise called Securities Exchange Board of India has forced exchanging confinements on 331 recorded substances which it recognized as shell organizations. An unexpected move that was pronounced by the controllers as the piece of a wide crackdown on illicit seaward exchanges and tax avoidance.  
• New Benami Transactions Informants Reward Scheme, 2018– This scheme is recently launched by the Income Tax Department to encourage large participation by the people for evading black money from the economy. Under this scheme, the informant will be rewarded an amount up to Rs one crore if he provides the Joint or Additional Commissioners of Benami Prohibition Units (BPUs) in Investigation Directorates of Income Tax Department the specific information about any benami transactions and properties in a prescribed manner.     

Suggestions

The government has already taken various steps to finish the issue of black money. The biggest and the most recent step taken by the Modi’s government was demonetization. Many people were against this step especially the ones whom this step affected the most. Leaving all the complaints behind demonetization has helped to eliminate black money but to only some extent. Though this step was really difficult to impose still a lot more needs to be done in relation to this issue. Billions and trillions go out of the country as a part of black money. The black money has caused the Indian economy to lack behind in comparison to other countries in relation to the total GDP. This is also called the opportunity cost of not having as a developed and among the largest economies of the world but a developing economy. The money which has been sent out of the country could have been used for various purposes in the country such as for providing enhanced social infrastructure with technologically advanced health care services, more educational facilities and employment opportunities. The country could have resources to feed almost 90-95% of the poor and hungry beings. It implies each family could have had a home, and we most likely wouldn’t need to witness the troubling sight of a half-dressed humans catching a cold in the rain and winters.

According to my opinion, the problem of black money is now to be solved in a real sense and in a very intelligent manner. Since this problem is hitting the poor’s of the country the following steps are helpful. First of all the problem is to be dealt morally. The moral of the people in the society must be raised. In the society senior civil servants, politicians can play a major role. They are role models for the society so by paying proper taxes they can set an example to the society.

• The tax system should be realistic in nature. High rates of taxes will only force the people to evade their income from taxes whether it is income tax, wealth tax, capital gains tax or any other tax which will further lead to a generation of black money.
• The authority which is responsible for the collection of taxes should be honest, without any corruption. All the officials should be more focused and more efficient in their work.
• Various different incentives should be given so that people voluntarily agree to disclose their real income.
• Economic Intelligence unit must be maintained thoroughly and should be looked after. Honest officials and staff must be rewarded to encourage honest staff in the department.
• Corruption in the administration at all levels must be stopped at any cost.

Conclusion

The government alone cannot curb this issue completely from society. Making different policies, laws, acts and legislation will not work alone. For the implementation of these laws, policies each and every citizen has to work on this. People should understand why it is important to pay tax and should stop evading their income and should not lead to the generation of black income. Each and every citizen should make some contribution to the development of the country in the form of paying taxes.

References

1. www.investopedia.com
2. www.freepressjournal.in
3. www.pib.nic.in
4. www.bankbazaar.com
5. www.timesofindia.com

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This article has been written by Namrata Kandankovi, student of Symbiosis Law School, Pune. The author of the article has discussed the concept of section 377, its implication in India, the court’s verdict on section 377 and the stance of various public figures regarding the same.

What is section 377?

Section 377 of Indian Penal Code is a 157-year old colonial law which criminalised homosexuality in India. The section was introduced in the year 1864 while India was under British Colonial rule. The wrongs committed in relation to section 377 came under the ambit of ‘Unnatural Offences’. Section 377 stated- whoever has voluntary carnal intercourse with a man, woman or an animal and which goes against the order of nature will be liable under for a criminal offence under section 377 of IPC.

The punishment for the commission of this offence varies from imprisonment for a period of 10 years or maybe imprisonment for life or the offender may be made liable to pay fine for the commission of the said offence under section 377 of IPC. This particular statute criminalised all carnal and oral sex and the community which came to be largely affected by the implications of this rule was the one of same-sex relations. Further, various human rights groups have claimed that the police have used this section in various instances to abuse and harass the members of the LGBT community.

How did it come about?

It can be stated that it has indeed been a tormenting and agonies route for all those campaigning for the restoration of the rights of the LGBT community. The very inception of the battle for recognition of rights of LGBT community started in the year 2001, it was a battle between the government and the court and this saga further continued till the year 2009. It was finally in the year 2009 that the Delhi High Court ruled in favour of decriminalising homosexuality and this led to the scrapping of the then existing law, in the case Naz Foundation v. Government of Delhi NCT of India. The court in its judgment had held that section 377 of IPC stood against the rights enshrined by the constitution towards its citizens under article 14, 15 and 21 of the constitution of India.

The verdict given out by the Delhi High Court was welcomed by various human right groups and it was upheld by them and was considered to be ‘progressive’ as it was in line with the changing notions of the society and moreover, it brought an end to the 8-year old battle for the gay-rights activists. But, as and how the events unfolded after the judgment being rolled out by the Delhi High Court, numerous social, religious and political groups backed by political power expressed their contentions which were against the ruling of the Delhi High Court and supporting their claim on the basis, that homosexuality goes against the norms and culture of Indian Ethics and hence should be struck down. Following all these developments the Supreme Court of India struck down the previous ruling of the Delhi High Court and further made the homosexuality a criminal offence.

It was in June 2018 that the court considered revisiting the case followed by various petitions filed in the case, which included prominent figures like that of Navtej Singh Johar and 4 other high profile Indians which required a hearing by the court. Followed by this in July 2018, the five-judge constitution bench was hearing the case in which the petition was filed by Johar and 4 others. The complete onus was laid on the court to decide the validity of the case and the decision of the court would be considered to be final and it had complete rights to reverse the final verdict in the case.

It was finally on September 6, 2018 that the court unanimously came out with the verdict of scrapping the section 377 and in its contentions laid down that the section was irrational, arbitrary in its very nature and that it was indefensible. This act of the Supreme Court of India marked the end of the long-existing colonial law and marked a celebrated conclusion to the long struggle for justice.

The Long Struggle

The bench which gave out the verdict in the Navtej Singh Johar case was comprised of the then Chief Justice of India Deepak Misra, Justice D Y Chandrachud, Indu Malhotra, R M Khanwilkar and Rohinton Fali. While delivering the judgment in the case it was held by the  then Chief justice of India that section 377 criminalises unnatural sexual acts between consulting adults both homosexual and heterosexual and hence this is unconstitutional in its very being. Further that it is also violative of the right to equality which is given by the constitution.

The judgment was marked by a  struggle by people and activists from different walks of life and the unfolding of events for a period of 20 years can be put forth in the following way as under:

• November 1991– In this year a document was released by the AIDS Bhedbhav Virodhi Andolan ABVA, the document was a 70 page report which showcased all that was wrong and included under its ambit various instances of extortion, blackmailing and various other violence that the gay people had faced throughout the years and tried to drag the attention of people to the issues which usually go unnoticed. It gave out a call for the scrapping of the legislative intent which discriminated against the gays and called for bringing an end to section 377 of IPC.
• May 1994– This year saw the eruption of controversy when Kiran Bedi, who was the then inspector general of Tihar Jail, Delhi refused to provide condoms for the inmates in the jail and in support of her actions, she stated that it would encourage homosexuality and also accepted that the prisoners indulge in it. Following this, the ABVA filed a writ petition to make condoms available for the prisoners and strike down section 377 as it was unconstitutional, but the petition filed by ABVA was dismissed in the year 2001.
• December 2001– A Public Interest Litigation was filed by an NGO The Naz Foundation working with gay men. The PIL challenged the constitutional validity of section 377 and called for the scrapping of its legislation.
• September 2004– In this year the Delhi High Court dismissed the PIL filed by Naz Foundation on the ground that there was no cause of action in the case and further laid down that when it is a purely academic case it cannot be examined by the court. Following this, a review petition was filed by the Naz Foundation which was eventually dismissed by the court following the previous pattern.
• February 2006– This year witnessed some important landmark changes in the case, as a special leave petition was filed by the Naz Foundation and it tried to reinstate the fact that in the interest of public there needs to be a reviving of section 377. Followed by this, various NGOs across the nation came in support of the scrapping of section 377 and started working for it collectively. There were various voices raised in favour of the scrapping of section 377 and the issue gained momentum. In response to this, the Ministry of Home Affairs filed an affidavit against the decriminalisation of homosexuality.
• July 2009– This year witnessed the landmark judgment given by the Delhi High Court. The court constituting the bench of Chief Justice Ajit Prakash Shah and Justice S Muralidharan finally struck down section 377 of IPC as unconstitutional. Further laid down that the section was violative of right to equality, liberty and right to life as given by the constitution on every citizen. This celebrated judgment of Delhi High Court was short-lived as it was further challenged in the Supreme Court by a Delhi based astrologer Suresh Kumar Koushal.
• December 2013– As the case was now in the Supreme Court, the Supreme Court turned down the verdict and reversed it making homosexuality a criminal offence under the Indian Penal Code and further laid down that the decision made by the constitutional bench of the Delhi High Court was legally unsustainable and held that the section 377 does not suffer from the vice of unconstitutionality.
• June 2016– In this year, the renowned award winning Bharatnatyam dancer Navtej Singh Johar challenged section 377 of the Indian Penal Code in the Supreme Court of India by filing a writ petition against it. This aspect gained momentum as it was further joined by 4 other celebrated personalities which also included Ritu Dalmia and the hotelier Aman Nath.
• August 2017– Parallel to the fight against homosexuality, this year witnessed other significant developments like that of India’s biometric programme Aadhaar case. In this case, the mandatory issuing of a unique identification number to every citizen of India which included the iris scanning and thumb impression of every citizen was challenged to be a breach of privacy of the citizens and it was challenged in the case of Puttaswamy v. Union of India. The court while delivering the judgment laid down that ‘Sexual orientation being an essential attribute of privacy, it cannot be discriminated against an individual and this would further stand against the self-worth and dignity of an individual’.  
• April 2018– One of India’s top hoteliers Keshav Suri who identifies himself to be a gay joined the moment for a collective fight against the criminalisation of homosexuality.
• July 2018–  This year witnessed the discussion on the case of decriminalisation of homosexuality whereby the five-judge bench of the Supreme Court brought into discussion the issue of why section 377 was to be seen as a criminal offence and the supporters of the law came up with the contention that the spread of sexually transmitted diseases and vandalism of the social fabric of the Indian culture were the reasons for the existence of the law. The justices of the Supreme court, on the other hand, made encouraging comments like that quoted from Indu Malhotra- ‘It is not an aberration but a variation’.
• September 2018– It was on the day of 6th September 2018 that the Supreme Court of India delivered the landmark judgment which decriminalised homosexuality. The then Chief justice of India Deepak Misra while delivering the justice held that the law was arbitrary in its very nature, it was irrational and indefensible.

The article has under its ambit included the saga of events which unfolded through the passage of time and in the end resulted in the striking down of section 377 from the Indian Penal Code and making homosexuality legal.

The Landmark Judgment of Section 377

For the sake of better understanding of the judgment given out up the Supreme Court in the case of Navtej Singh Johar v. Union of India involving section 377 of Indian Penal Code. The court while delivering the judgment laid down the following aspects, the highlights of the judgment of the case-

• Section 377 of IPC is arbitrary and irrational and hence it is liable to be struck down partially to the extent to which it criminalises consensual sex between two adults.
• The court however laid down that a person indulging in any kind of sexual activity with that of animals will still be a criminal offence under section 377 of IPC.
• Sexual orientation being a biological phenomenon, any discrimination which solely made on this ground would be held to be violative of fundamental rights of the citizens.
• The LGBT community owns the same fundamental and human rights as others and shall not be discriminated in any way.
• It is the duty cast on the court to protect and uphold the dignity of each and every individual in the society, the right to live with dignity is a fundamental right granted to each and every citizen by the Indian Constitution.
• Section 377 of IPC was indeed used as a weapon to harass the members of the LGBT community and they were discriminated as against other citizens which would no longer continue to exist.

Stance of various people on the matter of homosexuality

With the fallout of the judgment of the case Navtej Singh Johar v. Union of India,  one end of the society witnessed the judgment being celebrated and welcomed by the LGBT community putting a final end to all their struggles and the discrimination faced by them throughout the years while on the other end there were people who expressed a view which was different from that of the LGBT community, the views put forth by some of the renowned personalities will be looked at.

Will not allow gay sex and adultery in Army- Bipin Rawat

Months after the ruling of the judgment on homosexuality by the Supreme Court, the army general held in one of the press conferences that he would not allow gay sex and adultery in the army. In support of this argument he further laid down that the army is conservative, the army is a family and he would not allow gay sex and adultery to penetrate through it. In addition, adultery is defined as ‘stealing the affection of a brother officer’s wife’. Hence, taking all these aspects into account it can be said that getting the army under the sphere of gay sex and adultery would further complete things for them.

Suresh Kumar Kaushal

In the year 2013, when the Supreme Court’s verdict on re-criminalising gay sex was given effect, Suresh Kumar Kaushal was considered to be the face of such a development. The revised verdict of the court which came out in December 2013 was seen as a severe blow on the LGBTQ community.

After the Delhi High Court came out with the judgment of decriminalising homosexuality in 2009, Suresh Kumar Kaushal mobilized with Krantikari Manuwadi Morcha, Trust God Missionaries and the All India Muslim Personal Law Board and filed a petition of the purpose of re-criminalising the gay sex.

Speaking to The Hindu, Suresh Kaushal expressed his views that the prime motive behind taking up such a step was that it was a ‘religious issue’ and according to him homosexuality is something which is simply unnatural and once gay sex was decriminalised, a lot of gay men and lesbians started approaching temples and gurudwaras for marriage. They had to further put a ban on this as marriage in every religion will have to follow certain rituals.

Subramanian Swamy

The senior BJP leader is known for having a long-standing notion regarding homosexulatiy, that it is against the very practice of Hindutva. He further claimed that it is an American practice and further claimed that legalising consensual gay sex would further lead to developments like that of a commercial business evolving in the gay bars. In his statement after the delivery of the verdict by the Supreme Court, the minister had quoted that it is not something to celebrate about, it is not a normal thing and further stated that the government should rather invest in medical research to find out a cure for it.

Baba Ramdev

The yoga guru, Baba Ramdev had stated that homosexuality is a disease and that he can provide a cure for the same through the yogic practices. Going a step further, the yoga guru had even extended an invitation to the LGBTQ community claiming that he can cure the bad addiction which they possess by the way of practice of yoga on a regular basis.

Further, giving a scientific explanation for the same, Baba Ramdev stated that homosexuality is not something that is genetic. In addition to this, he even claimed that if homosexuality was unnatural and not genetic and none would have been born if our ancestors were homosexual and hence, there is a need to declare it to be unnatural and rather focus on finding out a cure for the same.

Apostolic Alliance of Churches, Utkal Christian Council and Trust God Ministers

When there was a final challenge posed to the matter of homosexuality in the Supreme Court, it largely went unopposed excepting for three Christian groups which were Apostolic Alliance of Churches, Utkal Christian Council and Trust God Ministers. These three organizations carried forth the ideology that the concept of homosexuality goes against religious ethics and hence should not be encouraged any further.

The three organisations were the respondents in the final case relating to striking down of section 377. During their fight against decriminalisation of homosexuality, they were backed by various religious groups and activists like that of Suresh Kumar Koushal. On the last day, they were joined by a lawyer, and she had stated that she had received a brief from Suresh Kaushal.

Why does decriminalising it matter?

Taking a look at the data it can be stated that while there are various instances which show that section 377 was indeed used to harass the LGBTQ community, it would be rather astonishing to note that a majority of the population who make use of that section are the married women who have been abused and physically tormented by their husbands and relatives. The section of 377 is invoked by them along with that of 498A while filing a complaint for the commission of unnatural offences. Again following the same pattern the research data of the states of Bihar, Haryana and Uttar Pradesh show that these victims are tortured and discriminated and not paid proper attention when they approach a police station to seek an end to their grievances.

It can further be stated that section 377 criminalised a group of people for being a sexual minority. Now, when this section of people approach the court to seek justice it is not just demanding protection as sexual minorities, but a need to recognise their inherent characteristics as to what they actually are. They moreover lay down the argument that right to sexuality, the right to choose a partner and sexual autonomy is something that leads to the formation of a cornerstone of human dignity. And section 377 is said to have a chilling effect on the right to equality, liberty, dignity, life and non-discrimination based on the ground of sexuality.

What next?

The most significant question which poses a challenge to the courts in India is the concept of ‘Order of Nature’ the courts have till date failed to understand what exactly is meant by order of nature in the context of homosexuality. And, once the constitution of India decides on the question of the order of nature and states homosexuality comes under the ambit of the order of nature, it would be way easier for the courts to decide on larger issues related to section 377 or homosexuality.

With the passage of time, it is evident that the courts in India will further be faced by the bigger questions on homosexuality like that of inheritance, reservation, adoption, employment and other aspects related to same-sex marriages. By arriving at a final conclusion regarding the matter of the order of nature on this particular matter, it would be a lot easier for the courts to decide the above-listed matters in the interest of justice.

Is it time to criminalise marital rape?

With the decriminalisation of homosexuality, incidentally, the court had diluted the aspects of section 498A of IPC which made it difficult for the women to make use of the law which had some deterring effect on the husbands causing harm to their wives. In addition to this, the courts even made it mandatory for the ‘family welfare committees’ to first look into the matter and no arrest or coercive measure would be taken action the person until and unless the family welfare committees investigate the matter and put forth their contention on the same.

The data regarding the working of these family welfare committees projects that in the grassroots levels like that of a village or a community, these committees can be influenced by the way of power and money and hence, their decision can be swayed in favour of the husbands family who would have committed the actual wrong.

Taking a note of such a development and the point that women when approached the police station for making use of 498A also invoked the section of 377 to seek justice makes it evident that they can no longer make use of 377 and hence there arises a need to scrap the law regarding marital rape and provide better conditions and a safe environment for the women of the country.

Future of POCSO

Section 377 is often seen to be used as a tool by the married women in order to highlight the ‘unnatural’ abuse which they have. At the same time, another important aspect found out by the Kerala government was that section 377 of IPC was also used by the Protection of Children from Sexual Offences Act POCSO, and with the striking down of section 377 it further goes on to reduce the stringency of the law on matters of unnatural offences related to children.

While section 377 now applies to minors in cases of bestiality, it is unclear if this section is also applicable to the married women. The rights regarding the married women and the step to criminalise marital rape has already been discussed in the previous segment. Bringing the attention further to the protection of child rights it can be said that there is again a need to bring some developments regarding the unnatural offences committed against the children and now that section 377 is struck down there arises a need for the POCSO Act to come up with the amendments and developments which would suit the current scenario.

Conclusion

Taking into consideration the developments evolving from the recent verdict of the court on the issue of homosexuality, it can be said that it has opened the doors to various people and different communities like that of LGBTQ to come out with their actual identity without any fear or agony and this even put an end to the discrimination which they had faced throughout the years. There were dissents put forth by several other people, especially those associated with the religious activities and some of the influential political figures who claimed themselves to be the ones upholding the ideology of Hindutva.

Amidst all the dissents and disfavour put in the course of the judgment of homosexuality, considering it on a larger perspective it is usually seen as a victory to the LGBTQ community and it further upholds the ideology that with the evolution of time the country is moving on a dynamic phase, making the age-old colonial practices which no longer fall in line with the current situation.

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This article has been written by Namrata Kandankovi, student of Symbiosis Law School, Pune. The author of the article has discussed section 6 of the transfer of property act in detail, analysis of the section, its various sub-sections with the case laws and their implications.

Introduction

Section 6 of the transfer of property act deals with the concept of what may be transferred. Property and interests in property as a general rule are transferable, and it should also be noted that the very transferability of the property is based on the maxim ‘alienation rei prefertur juri accrescendi’, and the meaning of the maxim goes like this– Law favours alienation to accumulation. Therefore it should be noted that any actions made to interfere with the power of the owner to alienate his interest in the property are considered disfavour in law. The transfer of property act, 1882 is civil legislation of great importance owing to the huge number of property related transactions taking place throughout the country[1].

Uniform legislation was the need of the hour considering this factor, and this act was drafted to serve the same purpose. Further, transfer of property is defined as an act by which a living person conveys certain property in present or in future, to one or more other living persons, and here living person can be a company or an association or can even be a body of individuals[2]. Meaning of property has also been defined in the said act, and this is done by rather giving a wider spectrum to the word property which includes under its ambit both tangible – which include material things like houses land etc, and certain rights pertaining to property which cannot be exercised over materials, which can be right to a Right to repayment of a debt.

Critical Analysis

This broadsheet aims to provide a differentiation between the different types of property that is transferable property and non-transferable property. And in order to know the difference, it also becomes important to know the link which exists between the transfer of property and section 60 of the Civil Procedure Code. In the first place this article would focus on the provisions of the Act, with close reference to the relevant section of the Code, which would rather be an attempt to understand the property in general along with trying to answer the question of whether a property is transferable, which would be backed by the significant case laws.

Section 6

It specifically speaks about, what may be transferred. Property of any kind may be transferred, except as otherwise provided by this act or even by any other law for time being in force, and these exceptions will be discussed in detail in the following sub-sections.

Sub-Section(a)- Transfer of Spes Succession

The concept of Spes Succession can be explained with the help of an Example– A family consists of father F and son S, F being the owner of the property has the ownership with him during his lifetime and no one else including his son is allowed to sell the property, without his consent. Now, if F dies intestate, s would inherit his property and hence, here it can be said that S is the Heir Apparent. Here S’s succession to the property in the future is a chance due to two main reasons[3].

Firstly, As F is the owner of the property he may sell it, dispose of it in any manner he thinks or make a will in someone’s favour. Eventually, nothing will be left for S.

Secondly, son S dies during the lifetime of his father. Thus, if S during the lifetime of his father transfers the property without his father’s consent then the transfer would be void ab initio and is also expressly prohibited by the act. In the case of Official Assignee, Madras v. Sampath Naidu[4], it was observed by the court that a mortgage executed by an heir apparent is void even if he subsequently acquired the property as an heir. Hence, from above it can be concluded that the transfer of spes succession is void ab initio.

Sub-section (b)- Right of re-entry

The right of re-entry means the right to resume the possession of the land which would have been given to some other person for a certain period of time. And the cases of re-entry are usually seen in the cases of leases, which would empower the lessor to re-enter upon the demised premises if the rent is in arrear for a certain period or if there is a breach of covenants in the lease.

Re Davis and Company[5], in this case, A purchased certain goods from B, which was on a hire purchase agreement. This agreement contained a clause which was that after purchase, A would take the property and would also pay the instalments on time, and in case A fails to pay the instalments B would enter A’s premise and take the possession of the property. The important point to be noted here is that the right to Re-enter is a personal right of B and the same cannot be transferred by him, and in any case, if he transfers this right to entry, to his creditors or anyone, then the same would be void.

Sub-section (c)- Easement

An easement can be quoted as a right which the owner or the occupier of certain land has in his possession for the beneficial enjoyment of the said land, or it may even be to do, or to continue to do something or to prevent something from being done. This very concept of easement includes under its ambit an important principle of ‘profits a pendre’, which actually means– A right to enjoy the benefits arising out of the land[6].

Example: Where A as an owner has the right of way over the way of the land of another for purposes which are connected with the beneficial use of his own land then, this can be termed as an easement[7]. Similarly, in the case of Ganesh Prakash v. Khandu Baksh[8], it was held that the right to dry clothes over the flat masonry and roofs of shops is a right of easement.

It should also be noted that an easement cannot be transferred apart from the dominant heritage to which by the nature of the right it is attached, and this was held in the case of Sital v. Delanney[9].

Sub-section (d)- Restricted Interests

This clause states that a person cannot transfer anything which is interest restricted in its enjoyment to him. For example- Two brothers partition a property among themselves and in addition give a right of pre-emption, which means one of them if at all wants to sell the property should first offer it to the other brother, who would be preferential in buying it. Here it should be known that these rights are personal rights and cannot be transferred. And if any such transfers take place such a transfer would be considered void. In the case of Shoilojanund v. Peary Charon[10], it was held that a right to receive voluntary and uncertain offerings at worship are interest restricted to personal enjoyment and hence, cannot be transferred.

The following kinds of interest can be held non-transferable:

1.   Services Tenure
2.   Religious Office
3.   A right of Pre-emption
4.   Emoluments which are attached to the priestly office. But it should, however, be noted that the right to receive offerings which are made at a temple is independent of on obligation to perform services which would involve qualifications of personal nature, and such rights are transferable.

Sub-section (dd)- Right to Future Maintenance

The sub-section of maintenance, it has been established that a right to future maintenance is solely for the personal benefit of the person to whom it has been granted and therefore, this very right cannot be transferred further. Thus an example can be quoted here regarding the rights of a woman to either receive maintenance from her husband under a decree or award of the court[11]. Or to receive a share from the property on the demise of the husband or under a will is a personal right. This right can neither be transferred nor can it be attached by a court’s decree. And this was held in the case of Dhupnath v. Ramacharit[12].

Sub-Section(e)- Mere right to sue

It was in the landmark case of Sethupathi v. Chidambaram[13], where it was held that a mere right to sue is something which cannot be transferred. Here the word ‘mere’ itself means that the transferee has developed no interest than just a bare right to sue.

For Example- A contracts to buy goods from B On due date A fails to take delivery and B sells the goods in the market at a loss of Rs.10000. B transfers the right to recover the damages to C. The transfer is invalid[14].

Sub-section (f)- Public office

It should be noted in the first place that a public officer cannot be transferred. In the same fashion, even the salary of the police officer cannot be transferred whether before or after it becomes payable. The word public officer is meant to be someone who has been appointed to discharge a public duty, and in turn, receive a monetary return of it which is in the form of the salary. Here, as the salary becomes something which is given on return of the personal service of a person, it can neither be transferred or attachable.

In the case of Ananthayya v. Subba Rao[15], it was held that where there is an agreement between two people and according to which a person agreed to pay a certain proportion of his income to his brother in consideration of his having been maintained by the latter, now in such cases this provision will not be applicable, which was held by the court.

Sub-section (g)- Pensions

Pension is like a salary, it is a sum of money periodically payable by the government which can be to an ex-serviceman or to a person who has ceased to be in employment. In the case of Saundariya Bai v. Union of India[16] it was held that pension is non-transferable, so long as it is unpaid and in the hands of the government. Another important aspect which should be taken into consideration is that pension is different from bonus and rewards, and also, on the contrary, these are transferable.

Sub-section (h)- Nature of interest

No transfer can be made insofar as it is opposed to the nature of the interest affected thereby. Thus, the things which are dedicated to public or religion uses or service inam, cannot be transferred.

Transfer for Unlawful object or Consideration – Any transfer which is for an unlawful object or consideration is not permissible under this section. And it is also in consonance with section 23 of the Indian Contract Act, which provides that consideration or object is unlawful if

1.  Is Fraudulent
2.  It is opposed to public policy
3.  It is forbidden by law.
4.  Is of such a nature that it defeats the provisions of any law.

Transfer of Person Legally Disqualified– A transfer to a person to be legally disqualified to be a transferee is not permitted. Under section 7 of the said act, the transferee is required to be competent to the contract and also should not have been disqualified legally.

Sub-section (i)- Statutory prohibitions on the transfer of Interest

This section makes it clear that a tenant having an un-transferable right of occupancy cannot in any way transfer his interest, and this was held in the case of Shanti Prasad v. Bachchi Devi [17]. But at the same time, this clause even contains an exception to the general rule which says that all tenancies or leaseholds are transferable. It gives effect to different enactments whereby it says certain categories of leasehold interests or tenancies are made non-transferrable[18]. Similarly, where a farmer of an estate, in respect of which default has been made in paying revenue, cannot assign his interest in the holding.

Conclusion

Lastly, it can be said that the following research paper dealt with the topic of section 6 of property act in detail with the addition of case laws in order to explain the different clauses involved in the sections. In addition to this, there were even illustrations and examples given, which in fact make it for the better understanding of the numerous clauses involved and connected with section 6 of Transfer of Property Act. In the legal arena, it becomes of paramount importance for the parties and the lawyers to have a detailed understanding of these above-discussed clauses and provisions. And finally, the paper has even attempted to touch the area of the clause which had certain significant exceptions.

References

[1] Rukhman Singh, Properties and Rights which cannot be transferable under the Transfer of Property Act, 1882, ( Aug 4th 2017) http://www.legalservicesindia.com/article/2471/Properties-and-Rights-which-cannot-be-transferable-under-the-Transfer-of-Property-Act,-1882.html.

[2] Amrit Mishra, Property of ‘any kind’ may be transferred, law teacher the law essay professionals, (Fri, 02 Feb 2018) https://www.lawteacher.net/free-law-essays/land-law/property-of-any-kind-law-essays.php.

[3] Samsuddin v. Abdul Husein, (1906) 31 Bom 165.

[4] Official Assignee, Madras v. Sampath Naidu, AIR 1933 Mad. 795.

[5] Re Davis and Company, 22 QBD 194.

[6] Om kukerjeya, Property of any kind may be Transferred, Academia (18th Sept 2016), https://www.academia.edu/27930118/Property_of_any_kind_may_be_transferred-_Critically_examine.

[7] Mohammed v. Ananthachari, AIR 1988 Ker 298.

[8] Ganesh Prakash v. Khandu Baskh, AIR 1918 Oudh 296.

[9] Sital v. Delanney, (1916) 20 Cal WN 1158, 34 IC 450.

[10] Shoilojanund v. Peary Charon, (1902) ILR29 Cal 470.

[11] Dr Poonam Pradhan Saxena, Property Law 67-81, (2d ed. 2012).

[12] Dhupnath v. Ramacharit, AIR 1832 All 662; Kamalchunder v. Sushila Bala, AIR 1938 Cal 405.

[13] Sethupathi v. Chidambaram, AIR 1938 PC 126.

[14] John Sprankling, Understanding Property Law 109-120, (3d ed. 2000).

[15] Ananthayya v. Subba Rao, AIR 1960 Mad 188.

[16] Saundariya Bai v. Union of India, AIR 2008 MP 227.

[17] Shanti Prasad v. Bachchi Devi, AIR 1948 Oudh 349.

[18] Anne Rodell, Clare Harris, Property Law and Practice 120-129, (3d ed 2009).

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This article is written by Neha Gururani student of Guru Gobind Singh Indraprastha University, New Delhi. In this article, she has discussed the money bill and the related provisions of the Indian Constitution.

Introduction

A money bill is generally concerned with the issues related to taxes, borrowing and expenditure of money, audits and accounting, consolidated and contingency funds etc.

A money bill is defined under Article 110(1) of the Indian Constitution which states that a bill is said to be a money bill only if it deals with the provisions either related to all or any of the following matters-

1. The imposition, abolition, remission, alteration or regulation of any tax,
2. The regulation of the borrowing of money or the giving of any guarantee by the Government of India or the amendment of the law with respect to any financial obligation undertaken or to be undertaken by the Government of India,
3. The custody of the consolidated and the contingency fund, the payment of money or   withdrawal of money from these Funds,
4. The appropriations of money of the consolidated fund in India,
5. The declaration of any expenditure charged on the consolidated fund of India or the increment of the amount of any such expenditure,
6. The receipt of money on account of the consolidated fund of India or the public account of India or the custody or issue of such money or the audit of the accounts of the Union or the State, or
7. Any matter incidental to any of the matters specified in sub-clause(a) to (f).

A bill will not be referred to as a money bill if it mentions only the imposition of any monetary fines or penalties, or for the demand or payment of fees for licences or any other services given, or if it provides any imposition, abolition, remission, alteration or regulation of any tax imposed by any local authority for local purpose.

Characteristics of Money Bill

• It deals with taxation, expenditure and credits of the union government, consolidated funds etc.
• It can be introduced in Lok Sabha only.
• Prior recommendation by the President is mandatory.
• Only a minister is competent to introduce and pass the money bill.
• A money bill has to be certified of the Speaker.
• Rajya Sabha cannot amend the bill. It can only recommend amendments.
• Within 14 days, Rajya Sabha has to return the bill to Lok Sabha.
• The absolute powers are vested in Lok Sabha.
• No provisions regarding Joint Committee.
• Money Bill is a subset of Financial Bill.

Types of  a money bill

There are two categories of money bill:

1. Appropriation Bill

Article 114 of the Indian Constitution talks about the Appropriation Bill. This bill gives authority to the government to use the funds from the consolidated fund during a financial year.

2. Finance Bill

This bill is presented in Lok Sabha right after the presentation of the union budget to make the financial plans of the government operative for the subsequent financial year. All finance bills are money bill but Finance Bill is defined under Rule 219 of the Rules and Procedures of Lok Sabha.

How does a Money Bill become an Act?

In order to transform a bill into an act, the Constitution of India prescribes a systematic procedure which is mandatory to be followed. 

The procedure is divided into three readings:

First Reading

The first reading includes the introduction of the money bill in the lower house of Parliament (Lok Sabha). The important features of the bill are introduced before the house by the member-in-charge and then the bill is published in the Official Gazette (public journal). A money bill can’t be introduced in Rajya Sabha. Thus, the process of the first reading is different in Rajya Sabha than that in Lok Sabha. During the first reading, the bill is received by the Rajya Sabha.

Second Reading

The second reading is further classified into two stages. At the first stage, a general discussion on the fundamental principles of the bill takes place. The representatives of different states and union territories give their opinion on behalf of the public. At the second stage, the bill is discussed clause-by-clause. Every clause and subclause is considered in detail through debates. Any amendment with regard to the bill if desired by the majority of the house is made.

The same procedure is followed in Rajya Sabha but at the second stage, it cannot amend the bill even if it desires to do so. The Rajya Sabha has the authority only to recommend amendments.

Third Reading

The money bill is put to vote in the third reading in Lok Sabha. If the money bill is passed by a simple majority in the lower house then, it will be presented in the upper house. In the case of Rajya Sabha, the money bill is put to vote in the same way as in Lok Sabha.

After going through these three reading process, the bill is then placed before the President for his consent. As soon as the money bill obtains the consent of the President, it is declared as an Act.

Role of Lok Sabha in Money Bill

A money bill can be directly introduced in the lower house of the Parliament i. E., Lok Sabha. Before originating the money bill in Lok Sabha it is mandatory to get the prior approval by the President. After being passed by the Lok Sabha it is further presented in Rajya Sabha. If the bill fails to attain a majority in Lok Sabha, it is considered as the defeat of the ruling government.

Restricted powers of Rajya Sabha in Money Bill

When the money bill is passed by the Lok Sabha, it is then sent to the Rajya Sabha. Although Rajya Sabha holds restricted powers in the matter of money bill, still it can suggest amendments in the bill (Art.109 of the Indian Constitution). Furthermore, it depends upon Lok Sabha whether it accepts the recommendations of Rajya Sabha or not. Rajya Sabha is compelled to return the bill to Lok Sabha within 14 days from the date of receiving with or without recommendations.

If the money bill is returned to Lok Sabha with some recommendations, it is placed again on the table of Lok Sabha for voting. If the recommended amendments are accepted by the Lok Sabha, the Money Bill is considered to be passed by both the Houses of Parliament. If the amendments suggested by Rajya Sabha are rejected by Lok Sabha, then also the Money Bill is deemed to have been passed by both the House of Parliament in the same way as it would have been passed by Lok Sabha without any recommendation of Rajya Sabha and is further presented to the President for his assent.

If Rajya Sabha does not return the money bill back to Lok Sabha within the stipulated time period , the bill is assumed to be passed by both the Houses of Parliament after the expiry of 14 days in the same way as it would have been passed by the Lok Sabha and then placed before the President for his consent.

Role of the Speaker

The speaker plays a powerful role in the matter of the money bill. If any question arises whether a bill introduced in Lok Sabha is a money bill or not then in such circumstances, the Speaker of Lok Sabha has the authority to declare and certify the bill as money bill before transmitting it to Rajya Sabha.

The speaker is under no obligation to seek advice in this regard from anyone before arriving at any decision and his decision thereupon is final which cannot be further challenged. The purpose of certification of Money Bill is to ensure that the upper house cannot amend it by adding anything which is beyond the provisions of Article 110(1). If the speaker does not certify the bill as money bill then it will be considered just as a financial bill only.

Provision of the joint sitting of both the houses

India has two-chambered parliamentary system i.e. the Lower House (Lok Sabha) and the Upper House (Rajya Sabha). Principally, the coexistence and consent of both houses are essential factors in passing any bill. A situation might arise when there is a deadlock between both the Houses of Parliament. Therefore,  to resolve such deadlocks, the provision of a joint sitting of both the Houses of Parliament has been incorporated in Article 108 of the Constitution of India. The joint sitting of both houses is called by the President and conducted by the Speaker of Lok Sabha.

But exceptionally, in the matter of money bill, the ultimate powers are vested in Lok Sabha and the consent of Rajya Sabha is insignificant in passing a Money Bill. Consequently, the provision of joint sitting does not come into play.

Money Bill and Veto Power

A money bill cannot be presented in Lok Sabha without the prior permission of the President. Moreover, if the bill is passed by both the house and reaches to President for his consent, he cannot send the bill back to Lok Sabha for reconsideration because it was introduced in Lok Sabha on his approval. Thus, the President cannot access his veto power in the matter of money bills.

Comparison of different types of bills

Ordinary Bill comprises of any matter which is not covered under money bill, financial bill and constitutional amendment bill.

Money Bill contains matters which are expressly mentioned in Article 110(1).

Financial bill is a bill which deals with any matters related to finance. It is a mixture of both an ordinary bill and a money bill. It is divided into 2 categories :

1. Financial Bill Category I – This category of financial bill possesses the attributes of an ordinary bill as well as a money bill. It deals with the matters of money bill specified under Article 110(1) and in addition to this, it contains some other provisions related to finance [Article 117(1)].
2. Financial Bill Category II – This category of the financial bill contains provisions related to consolidated funds but does not deal with any matter mentioned in Article 110(1).

The Aadhar Act, 2016 and Money bill

The Aadhar ( Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill was introduced in Lok Sabha by the NDA Government in 2016. This bill was presented as a Money Bill and further, the Speaker certified it as a money bill. Since NDA had a majority in the Lok Sabha, so the bill was passed by the Lok Sabha. When the bill reached the Rajya Sabha, it was not passed due to lack of a majority of the ruling government in Rajya Sabha and hence, Rajya Sabha wanted to amend the bill which was beyond their jurisdiction since the bill was introduced as a money bill. On the contrary, the opposition was not in favour of the declaration of Aadhar Bill as a Money Bill.

Hence, a case was filed in the Supreme Court for judicial review of the certification of the Speaker with regard to the Aadhar Bill as a Money Bill. The former Chief Justice of India, Dipak Misra rejected the arguments of the petitioner regarding the validity of Aadhar Bill as a Money Bill and held that since Section-7 of Aadhar Act states that the expenditure of subsidies and other schemes which are for the welfare of the people would be met from the Consolidated Fund of India, thus, the Aadhar Bill was held eligible to be categorized as a Money, Bill.

After the SC’s verdict, the bill was again introduced in Lok Sabha, passed to Rajya Sabha and Rajya Sabha returned the bill recommending some amendments. The Lok Sabha passed the bill, accepting the recommendations of the Rajya Sabha and after obtaining the consent of the President, The Aadhar Act, 2016 came into existence.

Conclusion

Thus, we can conclude that a money bill is a specific type of financial bill that deals with certain matters of finance like taxation, expenditures and credits, consolidated funds etc. The legislative process involved in money bill is very similar to that of other bills. Still there exist certain distinguishable characteristics like absolute authority and powers to Lok Sabha in order to avoid any kind of deadlock between both the houses and to reduce delays. If a money bill is introduced in Lok Sabha on the prior recommendation of President, then it is deemed to be passed by both the houses.  

References

1. The Constitution of India by P.M. Bakshi.
2. www.indiankanoon.org
3. www.economictimes.indiatimes.com
4. www.timesofindia.indiatimes.com

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This article is written by Neha Gururani, a student of Guru Gobind Singh Indraprastha University, New Delhi. In this article, she has discussed the doctrine of separation of powers, its relation with administrative law and the relevance in the modern era.

Introduction

The concept of separation of powers is the rudimentary element for the governance of a  democratic country. This principle corroborates fairness, impartiality and uprightness in the workings of a government. Although it is not followed in its strict sense yet, most of the democratic countries have adopted its diluted version under their respective constitutions.

Meaning

The concept of separation of powers refers to a system of government in which the powers are divided among multiple branches of the government, each branch controlling different facet of government. In most of the democratic countries, it is accepted that the three branches are the legislature, the executive and the judiciary. According to this theory, the powers and the functions of these branches must be distinct and separated in a free democracy. These organs work and perform their functions independently without the interference of one into others in order to avoid any kind of conflict. It means that the executive cannot exercise legislative and judicial powers, the legislature cannot exercise executive and judicial powers and the judiciary cannot exercise legislative and executive powers.

The Historical Evolution

The doctrine of separation of powers emerged in the ancient era. Aristotle, in his book ‘Politics’, discussed the concept of separation of powers stating that every constitution should have a heterogeneous form of government consisting of mainly three branches: the deliberative, public officials and the judiciary. A similar structure of government was observed in the Roman Republic setting off the principle of checks and balances in the country.

Further, in the 17th century during the arrival of Parliament in England, this theory of three branches of government was reiterated by John Locke, a British Politician in his book ‘Two Treatises of Government’ but with some different view. According to him, the three branches neither should have equal powers nor work independently. In his opinion, the legislative branch must be supreme out of all the three and other branches should be controlled by the monarch. His theory was based on the system of government which was prevailing in England at that time i. e. coexistence of both a democratic as well as an autocratic form of government.

According to Wade and Phillips, the principle of separation of powers meant three things:

1. One person should not be made part of more than one branch of the government.
2. There should not be any interference and control of any organ of the government by the other.
3. No organ of the government should exercise the functions and powers of the other organ.

However, in the 18th century, the term ‘trias politica’ or the doctrine of separation of powers was theorized meticulously by a French jurist, Baron de Montesquieu. He put more emphasis on the independence of the judicial branch. He described that rather being ostensible, the judiciary must be authentic in nature. In his viewpoint, one organ or one person should not discharge the functions of all the other organ and the reason was to safeguard and protect the freedom of the individuals and avoidance of tyrannical rule. In his book De L’Esprit des Lois (The Spirit of Laws, 1748), he propounded that:-

• The Executive should not exercise the legislative or judicial powers because this may threaten the freedom and liberty of individuals.
• The Legislative should never exercise the executive or judicial powers as this may lead to arbitrariness and hence, end the liberty.  
• The Judiciary should not exercise the executive or legislative powers because then a judge would behave like a dictator.

Objectives of Separation of Powers

The following are the fundamental objectives of the doctrine of separation of powers:-

1. Firstly, it aims to eliminate arbitrariness, totalitarianism and tyranny and promote an accountable and democratic form of government.
2. Secondly, it prevents the misuse of powers within the different organs of the government. The Indian Constitution provides certain limits and boundaries for each domain of the government and they are supposed to perform their function within such limits. In India, the Constitution is the ultimate sovereign and if anything goes beyond the provisions of the constitution, it will automatically be considered as null, void and unconstitutional.
3. Thirdly, it keeps a check on all the branches of the government by making them accountable for themselves.
4. Fourthly, separation of powers maintains a balance among the three organs of government by dividing the powers among them so that powers do not concentrate on any one branch leading to arbitrariness.
5. Fifthly, this principle allows all the branches to specialize themselves in their respective field with an intention to enhance and improve the efficiency of the government.

Elements of Separation of Powers

Legislative

The legislative organ of the government is also known as the rule-making body. The primary function of the legislature is to make laws for good governance of a state. It has the authority of amending the existing rules and regulations as well. Generally, the parliament holds the power of making rules and laws.

Executive

This branch of government is responsible for governing the state. The executives mainly implement and enforce the laws made by the legislature. The President and the Bureaucrats form the Executive branch of government.

Judiciary

Judiciary plays a very crucial role in any state. It interprets and applies the laws made by the legislature and safeguards the rights of the individuals. It also resolves the disputes within the state or internationally.

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Separation of Powers in Practice

U.K. Constitution

The United Kingdom practices the unitary parliamentary constitutional monarchy. The concept of separation of powers is applied in the UK but not in its rigid sense because the UK has an unwritten constitution. The Crown is the head of the state whereas the Prime Minister is recognised as the head of the government. The executive and the legislature are somehow interconnected to one another.

The executive powers are exercised by the Crown through his government. Thus, the Crown is the nominal head and the real executive powers vest in the Prime Minister and the other Cabinet Ministers. The UK parliament is bicameral and divided into two houses – The House of Commons and House of Lords. The Parliament is the sovereign rule-making body in the UK. The Prime Minister and the other cabinet ministers are also a part of The House of Commons. The government is answerable to the Parliament. Practically, the executive is controlled by the House of Commons. The Judiciary, however, is independent of executive control. But the judges of the Supreme Court can be removed on the address of both the houses if found with any charge of corruption.

Thus, we can conclude that the UK constitution has incorporated the separation of powers just to keep checks and balances among the three organs of the government but there exist some kind of interference of one organ in the other.

U.S. Constitution

The US has a written constitution and governed by the Presidential form of government. The cornerstone of the Constitution of the United States is the doctrine of separation of powers. This concept is well-defined and clear under the American Constitution.

• Article I – Section 1 of the American Constitution states that –

“ All the legislative powers are vested in Congress.”

• Article II – Section 1 of the American Constitution states that –

“ All the executive powers are vested in the President.”

• Article III – Section 1 of the American Constitution states that –

“ All the judicial powers are vested in the federal courts and the Supreme Court.”

The President and his ministers are the executive authority and they are not members of the Congress. The ministers are accountable to the President only and not to the Congress. The tenure of the President is fixed and independent of the majority in Congress.

Congress is the sovereign legislative authority. It consists of two houses- Senate and House of Representative. The impeachment of the President can be done by Congress. The treaties entered by the President are to be approved by the Senate. The Supreme Court of the USA is independent. It may declare any action of the executive as well as the legislature as unconstitutional if found so. Thus, it appears as if the powers of the three organs exist in a watertight compartment but actually it is not so.

1. President interferes in the functioning of Congress by exercising his veto power. He also makes the appointment of the Judges thus, interfering in judicial powers.
2. Similarly, Congress interferes in the powers of the Courts by passing procedural laws, making special courts and by approving the appointment of the judges.
3. The judiciary, by exercising the power of judicial review interferes in the powers of Congress and the President.

In Panama Refining Company v. Ryan[1], Justice Cardozo observed that:-

“ the doctrine of separation of power is not a dogmatic concept. It cannot be imposed with strictness. There must be elasticity in its application with respect to the needs of the government. Therefore, a practical approach to this theory is required.”

Australian Constitution

Australia is governed by a federal parliamentary constitutional monarchy system. The Australian Constitution had borrowed the concept of separation of power from the U.S. Constitution. The first three chapters of the Australian Constitution defines the three different organs of the government- the legislative, the executive and the judiciary. The legislative branch includes the Parliament of Australia, the executive comprises of the Queen, Governor-General, Prime Minister and other ministers.

Australia has a bicameral parliament consisting of the Queen (represented by the governor-general), the Senate and the House of Representatives. The executive powers vest in the Governor-General who is advised by the Federal Executive Council. The judicial power lies in the hands of the federal courts and the High Court of Australia which is the supreme judicial authority.

Like the U.S. and U.K., Australia also does not have complete separation of powers. Though, a system of checks and balances has been evolved. Some roles and powers of the three organs overlap-

• The judges, Prime Minister and other ministers are appointed by the Governor-General.
• The Prime Minister and other ministers are members of the parliament as well as the executive.

It was held by the High Court of Australia in the case of Victorian Stevedoring v. Dignan[2], that-

“ It was not at all possible to maintain the consistency of the British tradition of strict classification of the organs of the government. The legislative and the executive branch cannot work independently. A responsible government can’t be established by the strict separation of legislature and executive. The legislature can delegate its lawmaking power to the executive whenever required.”

Indian Constitution and Separation of Power

Like the United Kingdom, India also practices the parliamentary form of government in which executive and legislature are linked to each other. So, the doctrine of separation of powers is not implemented in its strict sense. However, the composition of our constitution creates no doubt that the Indian Constitution is bound by the separation of powers. There are various provisions under the Indian Constitution that clearly demonstrate the existence of the doctrine of separation of powers. This principle is followed both at the centre and the state level.

Provisions that Substantiate Separation of Power

• Article 53(1) and Article 154 of the Indian Constitution clearly say that the Executive powers of the Union and the States are vest in the President and Governor respectively and shall only be exercised directly by him or through his subordinate officers.
• Article 122 and Article 212 of the Indian Constitution state that the courts cannot inquire in the proceedings of Parliament and the State Legislature. This ensures that there will be no interference of the judiciary in the legislature.
• Article 105 and Article 194  of the Indian Constitution specify that the MPs and MLAs cannot be called by the court for whatever they speak in the session.
• Article 50 of the Indian Constitution encourages the separation of judiciary from the executive in the states.
• Article 245 of the Indian Constitution gives authority to Parliament and State Legislature for making laws for the whole country and the states respectively.
• Article 121 and Article 211 of the Indian Constitution state that the judicial conduct of any judge of the Supreme Court or High Court shall not be discussed in Parliament or State Legislature.
• Article 361 of the Indian Constitution specifies that the President and the Governor are not accountable to any court for exercising their powers and performance of duties in his office.

Overlapping Provisions

• Article 123 of the Indian Constitution allows the President to issue ordinance when both the houses are not in session.
• Article 213 of the Indian Constitution gives power to the Governor to issue ordinance when state legislative assembly is not in session.
• Article 356 of the Indian Constitution lays the provision of Presidential Rule in case of state emergency.
• Article 73 of the Indian Constitution specifies that the powers of the executive shall be co-extensive with that of the legislature.
• Article 74 of the Indian Constitution states that the council of ministers shall aid the President in the exercise of his executive functions.
• Article 75(3) of the Indian Constitution makes the Council of Ministers collectively responsible to the House of the People.
• Article 61 of the Indian Constitution lays the provision of Impeachment of the President by passing a resolution from both the houses in order to remove the President.
• Article 66 of the Indian Constitution states that the election of Vice-President is done by the electoral members of both the houses.
• Article 145 of the Indian Constitution allows the Supreme Court to make laws with approval of the President for the court proceedings and the practices.
• Article 146 of the Indian Constitution lays the provisions for the appointment of the servants and officers of the Supreme Court by the Chief Justice of India with consultation from President and the Union Public Service Commission.
• Article 229 of the Indian Constitution lays the provision for the appointment of the servants and officers of the High Courts with the consultation of the Governor and the State Public Service Commission.
• Article 124 of the Indian Constitution gives the President the power to appoint the judges of the Supreme Court.
• Article 72 of the Indian Constitution empowers President to grant a pardon or suspend the sentence of any person who is convicted by the Supreme Court of India.
• Article 32, Article 226 and Article 136 of the Indian Constitution provide the power of judicial review to the Supreme Court to strike down any law made by the Parliament or any administrative action which is found to be unconstitutional.

Judicial Approach towards Separation of Power in India

The court has interpreted the applicability of the doctrine of separation of power in India in many case laws.

• The very first judgment with relation to the separation of powers was given by Mukherjee J. in the case of  Ram Jawaya Kapur v. State of Punjab[3]. He concluded that-

“ The Constitution of India has not acknowledged the doctrine of separation of power emphatically but the functions and powers of all the organs have been adequately distinguished. Thus it would not be wrong to say that Indian constitution does not behold assumptions rather it works in a flexible manner considering the needs of the country. So, the executive can exercise the law-making power only when delegated by the legislature and it is also empowered to exercise judicial powers within the limits. But on an all, no organ should exercise its power beyond the provision of the constitution.”

• In the case of Indira Nehru Gandhi v. Raj Narain[4], Ray C. J. said:-

“ A rigid sense of separation of powers which has been given under the American and Australian constitution does not apply to India.”

Beg J. further added that:-

“ The separation of power is a part of the basic structure of the constitution. So, the schemes of the constitution cannot be changed even after restoring Article 368 of the Indian Constitution.”

• In Golak Nath v. State of Punjab[5], it was observed by Subba Rao C.J. that:-

“ The three organs of the government have to exercise their functions keeping in mind certain encroachments assigned by the constitution. The constitution demarcates the jurisdiction of the three organs minutely and expects them to be exercised within their respective powers without overstepping their limits. All the organs must function within the spheres allotted to them by the constitution. No authority which is created by the constitution is supreme. The constitution of India is sovereign and all the authorities must function under the supreme law of the land i.e. the Constitution.”

• Das J. talked about separation of powers in the case of A. K. Gopalan v. State of Madras[6]:-

“ Although the constitution has imposed some limitations on the three organs of the government, it has left our parliament and state legislature supreme in their respective fields. In the main, subject to the limitations, our constitution has preferred the supremacy of legislature to that of the judiciary and the court has no authority to question the wisdom or policy of the law duly made by the appropriate legislature and this is the basic fact which the court must not outlook.”

• In Asif Hameed v. State of Jammu and Kashmir[7], the Supreme Court observed that:-

“ Though the constitution has not recognized the doctrine of separation of powers in its absolute rigidity, the drafters of the constitution have diligently defined the powers and functions of various organs. The legislature, executive and judiciary have to function within their own domain prescribed by the constitution. No organ may arrogate the functions allotted to another.”

Separation of Powers: A Barrier to Administrative Law

Administrative law is a branch of public law that determines the organisation, powers and duties of administrative authorities. The principle of separation of power creates a demarcation among the three organs of the government. But in the present scenario, administrative law is antithetical to this principle. With the emerging pattern of globalized interdependence, the administrative agencies are not just exercising the administrative functions but also practises quasi-legislative and quasi-judicial powers, thus, violating the principle of separation of powers.

Contemporarily, it is a compulsive necessity to delegate the additional legislative and judicial powers to the administrative agencies to establish efficient and adroit governance and to ensure proper enforcement of the laws. The creation of administrative tribunals and delegation legislation took place with the aim to reduce the load of the legislation and judiciary and to expedite the lawmaking and justice giving process with expertise. This cannot be achieved with strict implementation of the doctrine of separation of powers. Therefore, the separation of powers acts as a limitation on administrative law.

The relevance of separation of powers in the Modern Era

Although, the doctrine of separation of powers does not have the rigid applicability that does not imply that it has no relevance in the current scenario. The core objective of the doctrine of separation of powers is to keep checks and balances among the three organs of the government which is an essential factor to run a government dynamically. The logic behind this doctrine is not the strict classification rather it is the avoidance of concentration of powers to a specific person or a body. This theory is not operative in its absolute sense but yes, it is very advantageous if applied correlatively. Thus, not impenetrable barriers and unalterable frontiers but mutual curtailment in the exercise of powers by the three organs of the state is the spirit of the doctrine of separation of powers.

Criticism

Every doctrine has some effects and defects. The separation of powers might have proved to be flawless theoretically but it cannot be applied comprehensively in real life situations. There are certain drawbacks and limitations to it.

1. It is extraordinarily difficult to distinguish the powers of the legislature, executive and judiciary precisely. A smooth and stable government can exist only if there is cooperation among the three organs. Any attempt made to separate these organs into watertight compartments may lead to failure and inefficiency in the government.
2. If this concept is adopted in its totality, then it will become impossible to take certain actions. Consequently, neither the legislature can delegate the law making power to the executive which may have expertise in the subject matter, nor the courts can make laws related to the functioning of courts and proceedings.
3. In the present scenario, a state works for the welfare and prosperity of the people. It has to resolve the complex issues of society. In such circumstances, the principle of separation of power seems to be impossible. The imposition of this doctrine in its rigid conception will not lead to the effectuation of the objectives of the modern state. Thus, separation of power is theoretically improbable and practically impossible.
4. Montesquieu, by propounding this theory aimed to protect and safeguard the freedom and liberty of the individuals which is impossible by the strict enforcement of separation of powers.

Conclusion

The doctrine of separation of powers must be interpreted in a relative form. In the era of liberalisation, privatisation and globalisation, separation of power has to be expounded in a wider perspective. It should not be curb to the principle of restraint or strict classification only but a group power exercised in the spirit of cooperation, coordination and in the interest of the welfare of the state. Though this doctrine is unfeasible in its rigid perception nevertheless its effectiveness lies in the prominence on those checks and balances which are necessary in order to avert maladroit government and to prevent abuse of powers by the different organs of the government.

References

1. 293 U. S. 388 (1935)
2. (1931) HCA 34
3. AIR 1955 SC 549
4. AIR 1975 SC 2299
5. AIR 1967 SC 1643
6. 1950 AIR 27
7. AIR 1989 SC 1899
8. Administrative Law by I. P. Massey
9. The Constitution of India by P. M. Bakshi
10. http://www.legalservicesindia.com/article/1878/Administrative-Law-Separation-of-Powers.html
11. https://www.lawctopus.com/academike/doctrine-of-separation-of-power/

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The article has been written by Subodh Asthana, currently studying in the second year of Hidayatullah National Law University. The author in this article discusses mechanisms of giving the free legal aid, its eligibility and problems faced in giving it to the poor and marginalised class of the society.

Introduction

According to Government data and figures of various authoritative agencies total poverty of country stood at 21.9% of the total population, which actually brings us to a very important point that a person who is not able to afford his 3 times meal a day, could the same person be expected to take legal aid for any injustice done to him/her. According to a report poor people often face injustice every day of their life. Who will come to their rescue? How can they approach the court if they don’t have a lawyer? Who will represent this marginalised class of society? Well, the answer to this question will be article 39(A) of the Indian Constitution which puts an obligation on the state to give legal aid to the marginalised class of the society.

Courts have also ensured that a person is properly represented by a lawyer and if he/she is unrepresented then courts have in their various judicial pronouncements have stated that “Right to Legal Aid” is a legal aid and any contravention to this rule would constitute as an infringement to one’s legal right. Thus it provides free and competent legal aid to the weaker section of the society so that the legal system produces justice on the basis of equal opportunity.

Right to Free Legal Aid

Each and every citizen who cannot afford legal representation is eligible for a free and fair legal aid under article 39(A) of Indian Constitution in which state is obliged to give free legal aid to the weaker section of society and also according to article 14 and article 22, state is obliged to promote equality for all and also promotes and propagate justice on the basis of equal opportunity for all person to the gates of justice. Well, there were constant movements for legal aid when India became independent but the problems at that time other than justice were so inherent that government was not able to look at these problems seriously and therefore was unable to channelize it in a proper format.

History

As we go deeper into roots of history when the demand for legal aid was started in 1952, it was the time when the law ministers in their speech always addressed the poor class but emphasis was not given to this section of the society. No favourable regulations were made for the marginalised section of the society. Some even say that it started when Justice VR Krishna Iyer started making the demand for the Development of Free Legal aid. In 1972, a committee was constituted under his chairmanship after which in 1973 he submitted a report claiming urgent demand of legal aid for people of poor class and criticised government’s stand for not taking into consideration the problem of a socio-economic class of the society. In 1980 another committee was constituted under the chairmanship of Justice PN Bhagwati. The committee worked considerably well in order to enact a bill and also on several other schemes of the legal aid services. Thus, in 1987 government passed and enacted Legal Service Authorities Act and after various amendments in 1994 act, a proper legislation was passed, which led to the establishment of the National Legal Services Authority (hereinafter referred to as NALSA) at the national level, State Legal Services Authority at the state level and District Legal Services Authority at the district level, also it led to establishment of such authorities at the Taluka Level also.

Eligibility Criteria for Free Legal Aid

The committee headed by Justice even mentioned the eligibility criteria for the people to be eligible for free legal aid. The provision has also been mentioned in the Code of Criminal Procedure under section 304 to provide free and competent legal aid at the expense of state to a marginalised person of the society. It was also ruled in Hussainara khatoon vs. State of Bihar to provide legal aid to the marginalised class of the society at the cost and expense of the state and it shall be the duty of the state to provide such legal aid to the accused.

In similar grounds, it was also ruled in Suk Das vs. Union Territory of Arunachal Pradesh wherein the apex court ruled that failure to provide legal aid to the accused who can’t afford because of socio-economic problems could lead to set aside of conviction or sentence of the accused.

As per the directives are given in Legal Services Authority Act, 1987 following are the people eligible for free legal aid:

• To any Member of Scheduled Caste and Tribe.
• A person who has suffered from natural calamity, industrial worker, children, lunatic and a person not in his senses, physically handicapped, persons in the custody of the police.
• People who are having an annual income of less than 1 lakhs.
• Mentally disturbed
• A woman and child
• a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake, industrial
  disaster and other cases of undeserved want;
• If a person is unable to take legal aid because of prevalent poverty and an adverse situation.
• In cases of the order by a competent court
• In cases of greater public importance
• Victims of Human Trafficking

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Services Rendered and Exceptions

Following are the services which are rendered by the particular Legal Services Authority:

• Payment of the entire requisite court proceedings fee and any other charges payable.
• Providing free and competent Advocate to the people who fall in the eligibility criteria.
• Assisting in the legal appeal and preparing for a legal appeal if something is ordered by the court
• Also preparing charges for proceedings, drafting etc.

Also, there might be instances and cases wherein legal aid of one person may be terminated on the following grounds:

• If a person has sufficient means to complement the expenses of the trial
• When no merits in the case are found
• When the case is related to malicious prosecution.
• When defamation suit is filed against a person
• When the proceedings of the case are related to election

Thus, in the above cases, the services could be withdrawn by the particular Legal Service Authority.

Regulatory Body

The Legal Services Authority Act led to the establishment of a statutory body NALSA (National Legal Services Authority) to give free Legal Services to the more fragile areas of the general public and to arrange Lok Adalats for amicable settlement of disputes.

To offer impacts to the approaches and headings of the NALSA and to give free legal service to the general population and lead Lok Adalat in each State, State Legal Services Authority has been formed.

Primarily, the State Legal Services Authorities, District Legal Services Authorities, Taluka Legal Services Committees, etc. have been asked to discharge their respective functions and these functions are regulated, supervised and administered by NALSA.

All the schemes drafted by NALSA have to be followed by the respective legal services authorities and thus NALSA also asks for reports from each and every respective State Legal Services Authority so as to check the functioning of each and every state authority.

Each and every High Court also have their respective Legal Services committee through which they can coordinate with the action of a particular state legal service authority.

The Supreme Court also has it’s Legal Services Committee (SCLSC), which has launched it’s Middle Income Group Legal Aid Society Scheme (MIG). This scheme gives legal services to the middle-class natives for example residents whose gross pay isn’t surpassing Rs.60,000/ – p.m. or on the other hand Rs. 7,50,000/ – per annum.

Problems in providing Legal Aid

There is a lack of legal aid provided to the prisoners or the jail inmates as there exists a communication gap between them and their lawyers as to when their trials are or when they have to appear before court etc. Thus, a person is not informed and date of hearing goes on ad infinitum which per se is an injustice towards them. Lack of communication between lawyers and inmates posed to be a greater threat, the inmates also complained that some of the lawyers asked them to pay money if they wanted the case to be disposed of readily. In this sector, legal aid needs to be improved but most importantly that first of all the inmates must be told about their respective rights so that they may enforce them.

It is a very big problem that a major crunch of the population is not at all aware of their legal rights, so how can one be expected to enforce his/her right, if a person is not aware of his rights. Although NALSA and State Legal Services Authority have appointed Paralegals at village levels to address that strata of the population which have been facing injustice but the results of this have been very disappointing. In this sector, the government must look for any other alternative measures, because there are a significant number of people in the country who don’t know that they are prone to injustice every day. So, it becomes the duty of government to safeguard their legal rights, as it has been rightly remarked by Martin Luther King “Injustice anywhere is a threat to justice everywhere”.

Also if we see the scope of legal rights, all the legal services authority are entrusted with the work to take care of Juvenile Justice Board and Rights for the welfare of child, but here also there have been multiple complaints that even after appointing an advocate to a particular ward, that advocate doesn’t turn up for the proceedings and therefore the purpose of establishing is frustrated.

NALSA has enacted many schemes for the welfare of each and every class of the society but there is a glitch on the implementation part because there are many District Legal Services Authority and State Legal Services Authority which are not working to its full capacity. Some of them don’t have the funds and grants to run a particular Legal Service Authority.

It is because of maladministration on the part of the authorities to look into the matter whether an advocate assigned to a victim and what is the present position of the proceedings. However, all the other departments’ that have been set up in the respective DLSA by the Legal Services Authority Act like Mediation and Lok Adalat have  been working perfectly fine but the primary function to provide free and fair legal aid for which it was established, it has somewhat failed to perform those function and address marginalised crunch of population. Immediate steps must be taken in order to ensure free and speedy disposal of pending cases and also a check must be kept on the allotted advocates.

Conclusion

A significant crunch of the total population is eligible for free and competent legal aid, where according to Legal Services Authority Act 1987 ensures the establishment of NALSA, SLSA, and DLSA’s in order to ensure that the marginalized section of the society is given access to justice. The scope of legal aid is very wide as any misconduct or mishap towards any citizen of the country infringes his/her legal right. If people are given access to competent legal aid and the schemes drafted and enacted by the National Legal Services Authority are properly implemented by the respective State Legal Services Authority and the District Legal Services Authority, the major problem will be solved and this 21% of the poor population could not feel aggrieved to justice. However, to achieve this target more legal services authorities must be set up at the village levels and at the backward areas as well.

The basic aim of the scheme is to secure justice to the weaker sections of the society, particularly to the poor, downtrodden, socially backwards, women, children, handicapped etc. but steps are needed to be taken to ensure that nobody is deprived of an opportunity to seek justice merely for want of funds or lack of knowledge.

Therefore there are the shortcomings and as to what more could be done in order to rectify some of the problems. The primary purpose of NALSA is to provide Legal Services Authorities with directions to promote “Acess to the legal Justice”, which have been constituted at the District and village level to give effect to the policies and directions of the NALSA in order to provide free legal services to the people who are not competent to help themselves in this regard, because “Legal aid is fundamental to giving everybody in the country equal access to Justice” as it is the least which could be done by the state to combat the injustice which is faced by the poor population every day and night and in order to protect their legal interests.

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This article is written by Anjali Dhingra, IInd year student, B.B.A. LL.B, Symbiosis Law School, NOIDA. In this article, the author discusses the laws which regulate the foreign marriages and where Indians marries foreigners or get married abroad. The article also mentions the essential requirements for such marriages, the loopholes in the act, problems faced in such marriages and the solutions to it. 

Introduction 

Marriage is considered as one of the most important milestones in an individual’s life. A marriage between the two parties is usually solemnized in the presence of the parties’ near and dear ones, according to the rules and regulations of the religion which is followed by the parties. In other words, marriage is usually a personal affair, which is celebrated amongst friends and family.

This act of marriage was initially solemnized to mainly fulfil two duties, one to perform religious duties and second, for procreation. Since marriage is considered as a holy and a personal affair, legal implications of marriage were never given importance. Looking into the increasing trend of people getting married abroad or marrying with NRI or foreigner; Foreign Marriage Act was passed in the year 1969 to provide provisions for marriages of Indian citizens who are outside the territories of India.

The Bill has features of English and Australian legislation it is also modelled upon the Special Marriage Act (SMA) which was passed in 1954. One of the prerequisites to solemnize a marriage under this Act, one of the parties must be a citizen of India. In Foreign countries, the marriage must be solemnized under a Marriage Officer. [1]

Key Words

• The history of the act (jurisprudential aspect)
• Solemnization of marriage under the Act
• Foreign marriages and court’s view
• Critical analysis of the act
• Problems faced in getting married abroad
• Proposed solutions

Literature Review:

INDIAN LAW ON MARRIAGE AND DIVORCE- THE FOREIGN MARRIAGE ACT, 1969 [2]

I have read in a book by Kumud Desai regarding Indian Law on Marriage and Divorce which had a section for Foreign Marriage Act stating that these laws were earlier governed by private international Law which was vague, unsettled and uncertain thus this act was introduced as an addition to the existing laws which laid down certain rules in respect of capacity of the parties and conditions of validity of marriage. 

Section 18 of the act says that if any foreign marriage is not solemnized under this act then the parties cannot claim relief for the time being in force. It further states that when the parties marry in a foreign country than the relief can be claimed under this section. It supported it with the case Joyce Sumathi v. Robert Dickson Brodie[3] where the wife filed a petition for divorce u/s 27 of Special Marriage Act read with section 18(1) of this act. It was held that the petition was maintainable.

Among the provisions of the Act, section 18(3)(a)(ii) talks about a minimum of 3 years residence in immediately preceding the petition. It was clarified in the case of Maria Linda v. Ashley Joseph[4] that the court observed that the legislature had not added the words such as ‘continuous’ or ‘unbroken’ thus the trial court ‘should not have disqualified the petition on the ground of jurisdiction’.

The Foreign Marriage Act- A Critical Analysis  

There was an article published in the ‘Indian Folk’ where the author introduces the origin of the Foreign Marriage Act and refer it as a dependent piece of legislation which is in force in India. The main purpose of establishing this act was that in India, the people protected and governed by these laws can select a martial law based on their religion and community-specific marriage laws or can choose to follow the common laws of civil marriages in India which apply to the population in general.

Thus, the citizens have a choice between personal laws, i.e. the people of India belong to different religions and faiths and are thus governed by different sets of personal laws in respect of matters relating to family affairs like marriage, divorce, succession, etc.

Although the act has a wide scope and explanation, it does not specifically state any provision in case of divorce, nullity or any other matrimonial remedy or relief, in marriages solemnized under this act. However, this need has been fulfilled by adding certain provisions which follow the provisions of the Special Marriage Act. It fails to answer questions such as if a remedy is given based on the provisions of the Special Marriage Act, then would the rights be given to the husband or wife as per general matrimonial laws be enforceable in such marriages solemnized under the Foreign Marriage Act, outside India.

Similarly, the prescribed penalties apply only to the citizens of India and it does not specify any penalty if any wrong is done by a foreigner. However, the special marriage Act had catered to the growing needs to look into the matter and introduced an act for foreign marriages in India.

The history of Foreign Marriage laws in India

During the British period, Indians used to go abroad for higher education but mostly came back to settle in India. However, after independence, people started moving to abroad for personal or professional reasons and were influenced by different cultures. These migrants often married native spouses either because of romantic alliances with their colleagues or subordinates or to fulfil the requirements for Visa-regulations. After a time, these migrants started making communities and interpersonal contacts. With the passage of time, their financial conditions and standard of living improved. When they used to visit their ancestral homes, they started influencing the local society with their western lifestyle.[6]

This introduced the concept of NRI’s after independence. “In the past, Indians migrated to foreign lands for different reasons and acquired citizenship of the country of their domicile. These ‘Persons Of Indian Origin–PIOs’ are now called ‘Overseas Citizens Of India (OCI)’ as defined under Citizenship (Amendment) Act, 2005”.[7]

The emergence of the Foreign Marriage Act, 1969

After looking for the need of foreign marriage laws in India, the act which used to prevail in India was the foreign marriage act, 1903.[8] The Special Marriage Act, 1954 included some provisions relating to foreign marriages involving Indian citizens marrying abroad.[9]

There was a considerable amount of uncertainty as to the law relating to foreign marriages. The then existing legislation touched only the fringes of the subject and the matter was governed by principles of private international law which were vague and by no means well settled, and which could not be readily applied to different communities.

The special marriage act, 1954 was introduced to remove this uncertainty to some extent. In the course of the debates in relation to the Special Marriage Act in parliament, it was urged that there should be laws for marriages where one of the party is Indian Citizen and other may not be. In this context, an assurance was given that the government would consider the issue and will introduce comprehensive legislation on the subject of foreign marriages. As an outcome of that assurance, the foreign marriage bill was introduced in the parliament.[10]

Fifteen years later, recognising the need for a separate law for foreign marriages, the new Foreign marriage act, 1969 was introduced.[11]

Foundation of the Act[12]

The FOREIGN MARRIAGE ACT, 1969 emanated from a bill moved in parliament in 1963 with a view to implementing the 23rd report of law commission of India on the subject of foreign marriages.

Modelled on the pattern of SPECIAL MARRIAGE ACT, 1954 and borrowing provisions from the British and Australian legislation on foreign marriage, the 1963 bill finally became law on 31 August 1969.

Salient features of the 1963 Bill[13]

The Bill is modelled on the SMA 1954 is subjected to certain important modifications which are necessary considering the peculiar condition in our country. The following are the salient features of the Bill:

1. It provides for an enabling form of marriage which are more or less laying down certain rules regarding the capacity of parties and conditions of validity of the marriage and also provides for registration of marriage similar to those in SMA, 1954.
2. The only difference is that there rules are to availed for marriages outside India or where one of the parties to the marriage is an Indian citizen provided that this act is not in supersession of but is only an addition to or an alternative to any other form that might be permissible to the parties.

3. It lays down certain rules regarding the capacity of parties and conditions of validity of marriage and also provides for registration of marriage similar to those in the SMA, 1954.
4. The provisions of the SMA, 1954 in regard to matrimonial reliefs are applicable to these marriages with suitable modifications. This act not only applies to marriages solemnized or registered under the proposed legislation but also to other marriages solemnized abroad to which a citizen of India is a party

Scope of present law[14]

FOREIGN MARRIAGE ACT 1969 provides for:-

1.     Conditions relating to solemnization of marriage,
2.     Initial solemnization of new marriages,
3.  Registration of marriages already solemnized under any other law in force in a foreign country.

Validity of Marriage[15]

A marriage under this act would be considered valid if it is solemnized:

1.      In fulfilment of the conditions laid down by the enactment,
2.      In accordance with the procedure prescribed by the enactment.

A foreign marriage solemnized in accordance with the said statutory procedure will be presumed lawful.

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Conditions for Solemnization of Marriage

At least one party must be a citizen of India[16]

It is the foundation of the act of foreign marriage in India. The marriages solemnized under this act require that one party is Indian or other party is a foreigner. The parties can be both Indian but solemnizing their marriage outside India or one party can be a Non-Resident of India (NRI).

In this case, the marriage can be solemnized and registered in India or any other country from where the foreigner belongs or is a citizen of. The other case may be when both the parties are a citizen of India or are Non-residents of India and get their marriage solemnized under any foreign law.

Monogamy

A foreign marriage has to be necessarily monogamous. At the time of solemnization of marriage, neither of the party must be having a living spouse [17] A foreign marriage in contravention to this rule would be null and void[18] when read with s. 24(1)(i) of Special Marriage Act, 1954. A marriage being null and void means that it will not be a legal marriage in the eyes of law.

Neither party to a marriage, solemnized under this act, during the subsistence of that marriage, contract any other marriage in India under any law, and either of them doing so will be guilty of offence of bigamy under the IPC.[19]

Either party to a foreign marriage who is an Indian Citizen may not, during its subsistence, contract any other marriage under my law, even outside India, otherwise, the party will attract the anti-bigamy provisions of the Indian Penal Code.[20]

Mental Condition

At the time of solemnization of marriage, both the parties must be having a sound mind. Neither party may be an idiot or a lunatic. If the marriage is solemnized in contravention with this condition, it will be null and void.[21]

Age of parties

At the time of solemnization of marriage:

1.      The bride must have completed 18 years of age
2.      The groom must have completed 21 years of age[22]

A foreign marriage procured in violation to this would be termed as null and void.[23] If found guilty, one has to undergo 15 days of simple imprisonment or fine of Rs. 1000 or both.

Prohibited degrees of relationship

The marriage cannot be solemnized between two parties if they come under prohibited degrees of relationship as explained in special marriage act except where the custom governing at least one of them permit the marriage between them.[24]

The special Marriage act states the category of men and women who comes under the prohibited degrees of relationship in schedule 1 and Section 2(b).

Initial Solemnization of new marriages

Ø  Give written notice to marriage officer in the district where at least one of the parties have resided for more than 30 days. (S. 5)

Ø  After receiving the notice, the officer keeps it with records in his office. (S. 6)

Ø  Marriage can be solemnized by or in front of the marriage officer, at his official house with open doors within prescribed hours. (S. 13)

Ø  The marriage can be solemnized in any manner the parties choose to adopt. [S. 13(2)]

Ø  There must be an official declaration for the marriage in front of at least three witnesses. [S. 13(2)]

Ø  The declaration can be made in any language understood by the parties or in case any or both the parties are not able to understand the language, it will be further translated for the party in the language he/she is familiar with. [S. 13(2)]

Ø  Marriage will be complete and binding after such declarations. [S. 13(2)]

Ø  The whole process of marriage has to be completed within 6 months from the date the notice was served. (S. 16)

In the case of Minoti Anand v. Subhash Anand, the marriage between two Hindus was performed in Japan according to Japanese rites and customs and registered under the foreign marriage act. It was deemed to be a marriage solemnized under the Foreign Marriage Act, vide section 18 of the act. If in case a dispute arises, matrimonial reliefs would be available to the parties only under the provisions of Special Marriage Act and not under Hindu marriage act as the marriage was solemnized outside the territories of India.[25]

Registration of Marriage [26]

After the marriage is solemnized, parties can get themselves registered under the foreign marriage act, irrespective of the nationality of the other party. The pre-existing marriage must be registered under the act only when it satisfies all the conditions for a valid marriage given in section 4 of the act.

The Marriage Officer may refuse to register a marriage under this section on the ground that in his opinion the marriage is inconsistent with international law or the comity of nations. For this, he has to give the reason in writing. If in case the Marriage Officer refuses to register a marriage under this section the party who has applied for registration can appeal to the Central Government in the prescribed manner within a period of thirty days from the date of refusal by the marriage officer; and the Marriage Officer will be binding by the decision of the Central Government on such appeal.

Registration of a marriage under this section shall come into action when the Marriage Officer issues a certificate of the marriage in the prescribed form and in the prescribed manner and make an entry in the Marriage Certificate Book, and such certificate shall be signed by the parties to the marriage and by three witnesses. A marriage registered under this section is deemed to have been solemnized under this Act from the day such certificate is issued.

In the case of Joyce sumathi v. Robert Division Brodie, the appellant wife was a resident of India performing Christian faith and married at Baharain where the couple worked. The husband deserted the wife who later on filed for divorce under the act. Although the trial court dismissed the petition stating that the marriage was not registered under section 17 of the Foreign Marriage Act but on appeal, the court held that any marriage solemnized under section 18(1) of the act or in relation to any other marriage solemnized in foreign country where at least one of the party is an Indian will be governed by Foreign Marriage Act and the wife’s petition for divorce was held maintainable.[27]

Continuance of residence- Issue Solved

Earlier, for getting solemnized under the Foreign Marriage Act, the place in whose jurisdiction marriage used to be solemnized, the parties were required to reside in that very place for at least 3  years.

The Modi Government has acknowledged global realities and is trying to outreach to foreigners to relax these conditions. The Home Ministry took suggestions from the stakeholders before amending the Indian Citizenship Act, 1955. The proposal was of amending the law as per the needs of the foreigners. The target was to allow breaks for a total period not exceeding 30 days during the prescribed period of one year stay in India before he or she can make an application for Indian citizenship. Indians previously could not leave India even for a single day in the one-year prescribed period before applying for Indian Citizenship.[28]

In the case of Maria Linda Rodrigues v. Ashley Joseph Rodrigues, the court said that Continuous residence for three years immediately preceding presentation of the petition is not necessary. It is enough that petitioner wife was resident of India and had resided in India for three years prior to the presentation of the petition.[29]

The act does not affect the validity of marriage outside its ambit

In the case of Smt. Joyce Sumathi v. Robert Dickson Brodie, where the marriage of a lady who was a citizen of India with a man who was a citizen of England was solemnized in the British political Agency, the marriage between the parties was considered to be a valid marriage.[30]

Critical Analysis of the Act

Not an alternative but an additional provision

The provisions provided in this act do not supersede any alternative provision but simply acts as an additional provision.[31] This means that when a person is marrying a foreigner or is marrying in a foreign country, this act is available to them as an option to get their marriage solemnized under the same. This somewhere degrades the importance of this act which is formulated considering certain concerns in mind. It can be presumed that the statutes in India can work in the absence of such act as well.

Not a complete act

The Foreign Marriage Act, 1969 only deals with three factors relating to foreign marriages. The first is the conditions for solemnization of marriage i.e. monogamy, age, soundness of mind and prohibited degrees of relationship. Second, includes the process of solemnization of marriage mentioned above and the third factor relates to the registration of marriage.

There are various other factors which are not dealt with in this act. These factors are mentioned below:

Firstly, the laws dealing with divorce. In the case of divorce between the parties whose marriage is solemnized under this act, no law pertaining to this situation is mentioned in the act.

Secondly, the laws relating to maintenance is also not dealt which can be aroused in at the time of divorce of parties that one of the parties needs to be maintained after the legal separation of the adults.

Thirdly, laws dealing with the citizenship status of the parties solemnizing under the act are not mentioned.

Fourthly, the issues related to legitimacy and citizenship of the child born out of such marriage are nowhere dealt with. The act nowhere explains the different conditions which can arise when a child is born through procreation or adoption or any other way under this act.

The Courts failed to address another issue that while Section 18 provides for matrimonial relief, for succession under Foreign Marriage Act, the parties seeking remedy cannot use any provisions of joint family status, inheritance rights of parties to a civil marriage and the succession law applicable to the parties and their minor children and their future descendants found in the Special Marriage Act, as the Foreign Marriage Act has not specified any provisions for this issue, which is silent on these matters.

So, even if the marriage was solemnized and registered under the Foreign Marriage Act, the parties, and future descendants will have to approach the Court under the laws of succession applicable in general cases.

Fifthly, the cases of nullity of marriage are not dealt with. The act although mentions the cases in which the marriage will be termed as null and void, the act fails to address the issue in detail or separately say what can be the probable consequences of entering into a marriage which is null and void.

Sixthly, the act does not provide with any provisions for matrimonial remedies. Since the grounds for relief in such cases are similar to those as covered in the Special Marriage Act, the Foreign Marriage Act has provided that, after making necessary alterations to the provisions of the Special Marriage Act, while not affecting the main point at issue, the parties will have matrimonial relief.

For all these factors relating to these kinds of marriages, the act relies upon The Special Marriage Act. This implies that this act cannot be read in isolation but will always need to be read with the Special Marriage Act.

Prescribing Penalties: Not applicable to foreign citizens

When prescribing penalties, the punishments clearly apply only to Indian citizens and cannot come into action if the foreign party to the marriage is guilty of such crimes. This limits the scope of the Act as when in the case of desertion by one of the parties, if a petition is filed by the other, challenging the said matrimonial proceedings on the grounds that the marriage cannot be subjected to Indian laws.

So, if the issue raised questions whether the Hindu Marriage Act would apply when the marriage is performed abroad and registered by the Marriage Officer of the country, as per Hindu customs, the provisions of law will answer by stating that the Hindu Marriage Act applies only when both parties are domicile of India, if the respondent is not an Indian citizen but belongs to the other country, he will not be subjected to Indian jurisdiction and will thus not face any matrimonial proceedings against him. So, in such cases, the Foreign Marriage Act failed to identify the possibility of such cases due to which a wrongdoer under this Act will be able to escape untouched by the law.[32]

“May” in section 4 and 17 of the act

The act is just an enabling law and does not make it compulsory for the parties to initially solemnize or register the marriage since the provisions dealing with them include ‘may’ and not ‘shall’ or ‘must’. If the foreign marriage is solemnized otherwise than under this act and never registered under the foreign marriage act may be perfectly valid.[33]

Solemnizing marriage by the embassy

Under this act, the embassy is authorised to solemnize the marriage when at least one party is Indian and the parties are living in abroad. In such a case, irrespective of the fact that one or both the partners are Indians; the party needs to submit an affidavit by the court of India on a stamp paper signed by a notary and advocate including stating that the parents in India consented and do not have any objection with the marriage. This affidavit is to be produced by the Indian partner only.[34]

The law asks only the Indian Party to get this affidavit. Moreover, for the solemnization of marriage, the Indian party needs consent of parents in writing. Although being sane and adult,  the consent of parents is required which considerably restricts their freedom to marry and choose a partner because in case the parents don’t consent for the marriage, their fundamental right to choose a partner is infringed as per the Indian Constitution. If the parties are adult and of marriageable age i.e. 18 for girls and 21 for boys, sane and are not in prohibited degrees of relationship should be free to marry without anyone’s consent except the other party and the law.

Problems faced when Indians marry abroad

In the last two decades, the trend of overseas marriages has been increasing at a high rate. Along with this, the brides of overseas marriages have faced a lot of problems which ultimately led to the abandonment by the husbands. The bride may be a victim of cruelty or there can be a dowry demand.Following are the problems which are mostly faced by the spouse in a marriage abroad:

• The girl is abandoned by her in-laws or her husband. She is either sent back to her home country or the husband leaves her in India saying that he will be sending passport and visa but never called again. There have been cases where the girl reaches to the airport and the husband never comes to pick her up and she is forced to live in an unknown country without any resources.
• She is physically and mentally harassed by her husband and in-laws. The girl is tortured and ill-treated to an extent that she either go back to her home or she is forced to go back.
• It is discovered that the man had entered into bigamy or is having an extra-marital affair. There have been cases where the bride founds that the man is already married and is living with his first wife. He had entered into marriage because of family pressure.
• There is a continuous demand for dowry before or after the marriage. The parents of the girl are held to ransom to pay a huge amount of cash and kind for the well being of their daughter. The parents are forced to pay such amount because the in-laws could make the life of their daughter miserable and she stays on a high risk at her husband’s house in an unknown country.
• There are instances where the man and his family have lied about or concealed certain material facts about their background, marital status or financial standing. They could have lied about the property they hold or the occupation and earning of the husband or his marital status. Not every NRI is clean. There are people who escape to other nations after committing frauds in India.
• The girl is taken to abroad and treated as house labour. The girl is taken abroad and is treated as a maid who is supposed to work from morning to night.

• The girl is asked to pay for expenses for travelling and living in abroad.

• There are cases where the boy marries the foreign girl in order to become a permanent resident of the country.
• There are lenient laws in that foreign country on grounds for divorce. There are certain repercussions, some of them are discussed below: [37]
  • The husband takes advantage of such laws and gets an ex-parte decree of divorce which means that the court gave a decree of divorce without the presence of another party.  
  • The Indian courts deny giving maintenance to the wife because the case is dismissed in the other country.
  • If any criminal case is filed in India against the husband but the husband never comes to India to appear in the trial
• There are issues related to custody of the child at the time of divorce and the husband is reluctant to surrender the custody of the child.

The court’s perspective

In the case of Neeraja Sharaph vs. Jayant V. Saraph [38],  the court has emphasised on the need to consider legislative safeguarding of the interests of women and also suggested the following specific provisions:

1. If Marriage between an NRI and an Indian woman has solemnized in India than it may not be annulled by any foreign court.
2. Adequate alimony should be paid to the wife by the husband, in the case of divorce.
3. The decree of Indian court should be made executable in foreign courts both on the principle of comity by entering into reciprocal agreements and notify them under section 44A of the Civil Procedure Code which talks about binding nature of foreign decree i.e.; it is executable as it would have been a decree passed by that court.

Actions taken by the Government of India [39]

The National Commission for Women was appointed as a coordinating agency at the national level for dealing with issues pertaining to NRI marriages by Government of India vide Ministry of Overseas Indian Affairs order dated 28th April 2009.

In furtherance of this, the NRI Cell was formally inaugurated on the 24th of September, 2009, to deal with the complaints received from within the country and abroad resulting from cross country marriages wherein there is any deprivation of woman rights or any issue involving injustice to women.

In a report of 2011-12, the total number of cases registered by the NRI cell was 480. Out of all the states and Union territories, maximum cases were reported by residents of Delhi followed by Uttar Pradesh, Haryana and Punjab. The maximum number of complaints were reported to India i.e. 180 followed by the U.S. with 19 complaints.

Ministry of Overseas Indian Affairs (MOIA) launched a scheme in February 2007 to provide financial assistance for obtaining legal aid/counselling through Indian Missions abroad. The scheme has been launched in the USA, UK, Canada, Australia, New Zealand, Malaysia, Singapore and Gulf countries.

A National Consultation on “Marriages to Overseas Indians” was organized by the Ministry in February, 2006 following which the Ministry of Overseas Indian Affairs jointly with the National Commission for Women (NCW), organized two regional workshops in Chandigarh and Thiruvananthapuram in 2006 with the objective of involving the State Commissions for women as well as the women organizations of the States concerned to spread awareness.

The Bill has been introduced in the parliament which is an outcome of a joint initiative of the Ministry of External Affairs, Ministry of Women and Child Development, Ministry of Home Affairs and Ministry of Law and Justice.

The objective of the Bill is to create more accountability and offer more protection against the exploitation of Indian women by their NRI spouses. It envisages

(i) Registration of Marriages by Non-Resident Indians;

(ii) Amendment of the Passports Act 1967 and

(iii) Amendment to the Code of Criminal Procedure 19 [40]

What can we do to deal with this issue?

To some extent, the repercussions of these marriages can be minimised if the girl and her family keep themselves aware and attentive towards the circumstances. When the parents are handing over the greatest gems of their lives to someone, carelessness can make them pay a lot. Here are some of the suggestions which the family of the bride can adopt to save their child from misery:

• All the facts related to the groom needs to be properly verified. All the related documents needed to be photocopied and kept with the bride and her parents. This reduces the chances of fraud. This includes: [41]
  • Visa, Passport
  • Voter, alien registration card
  • Social Security No.
  • Tax returns of last 3
  • Bank Account No., statements
  • License No.
  • Property Documents
  • Marital Status
  • Employment details (qualification, post, salary, address of the Office, employers and their credentials)
  • Immigration Status (the type of Visa, eligibility to take the spouse to the other country)
  • Criminal antecedents
  • Family background
• Always try to get the marriage registered. If the groom seems to be in a hurry, try to convince him that it is just a matter of a few days. Keep the video recordings and photographs of the marriage ceremony as proof as in many cases, the solemnization of marriage is primarily questioned. For the same reason, do not keep the marriage a secret or do it in hostility. It is better to invite more and more people so they know about the marriage
• Try to avoid having a marriage abroad since people are not so well versed about foreign laws. If you are more excited to enjoy this special occasion in a foreign country, you can have your pre and post marriage ceremonies there.
• Be well versed with the marriage laws of the other country and the rights which one can enjoy in cases of divorce or domestic violence.
• Open a bank account exclusively on the name of your daughter which she can use in a foreign country in case of emergency.
• Keep the photocopy of the marriage certificate with you.
• Keep in touch with relatives and friends abroad and ask your daughter to do the same.
• Do not give your passport or visa to any unauthorized person

Conclusion

The Foreign Marriage Act covers within its ambit, a marriage between an Indian and a Foreign citizen or two Indian marrying abroad. Unlike the Hindu Marriage Act, The Foreign Marriage Act is not concerned about religion. It focuses on the legal aspects governing the institution of marriage. Its features are derived from, both, The Hindu Marriage Act and The Special Marriage Act.

A marriage, which is usually considered to be a family and a religious occasion, has its own legal impacts, which is not given much importance. The Foreign Marriage Act, however, highlights these legal implications of the institution of marriage.[35]

While the Courts need to address the flaws in this act, it must be appreciated as a protective law that wholly protects Indians outside of Indian Territory, as the law requires a wider scope and application to ensure that it effectively governs such special cases of marriages. While it was derived from the basis and provisions of the Special Marriage Act, it has successfully understood where the people need legal safeguarding in such marriages, and thus, despite a few legal fallacies, it is a piece of legislation appreciated for giving the people more rights and freedom.[36]

References

1. Jyotsna Gynanashekar,” A Study Foreign Marriage Act, 1969”, Vol. 2, 1(2017)
2. Prof. Kusum, Kumud Desai’s Indian Law of Marriage and Divorce 645-650 (LexisNexis, Gurgaon, tenth edn., 2017)
3. Joyce Sumathi v. Robert Dickson Brodie, AIR 1982 AP 389
4. Maria Linda v. Ashley Joseph, AIR 1993 Bom 110
5. Dylan Sharma, “The Foreign Marriage Act- A Critical Analysis”, Indian Folk (2017)
6. Graeme Kirk,“Happy Families-The immigration procedure for spouses and dependents is not always simple” The Economic Times, November 13, 2006 at 11.
7. “Concept of Non-Resident Indian Marriages & Legal Issues – A Detailed Study”, Chapter 3(2006)
8. The Foreign Marriage Act, 1903 Act 14 0f 1903
9. Special Marriage act 1954, pre 1969 version , ss 1(2), 2(a), 3(2), 4(e), 10 and 52
10. Bare Act, The Foreign Marriage Act, 1969, 1 (Universal Law Publishers, Delhi, 2018)
11. Halsbury’s Law of India, “Family Law I” (64) (Lexis Nexis, second edition/2014)
12. Foreign Marriage Act Bill, 1963
13. Foreign Marriage Act Bill, 1963, Statement of objects and reasons
14. Halsbury’s Law of India, “Family Law I” (64) (Lexis Nexis, second edition/2014)
15. Section 15, Foreign Marriage Act, 19692
16. Section 4, Foreign Marriage Act, 1969
17. Section 4(a), Foreign Marriage Act, 1969
18. Section 18(1), Foreign Marriage Act, 1969
19. Section 19(1), Foreign Marriage Act, 1969, Section 494–495 of IPC, 1860
20. Section 19(2), Foreign Marriage Act, 1969, Section 494–495 of IPC
21. Section 4(b) of Foreign Marriage Act, 1969
22. Section 4(c) of Foreign Marriage Act, 1969
23. Section 18(1) of Foreign Marriage Act, 1969
24. Section 4(d) of Foreign Marriage Act, 1969
25. Minoti Anand v. Subhash Anand,  2016(1) ALL MR 408
26. Section 17 of the Foreign Marriage Act, 1969
27. Joyce sumathi v. Robert Division Brodie, Air 1982 AP 389
28. Aman Sharma, “Modi’s outreach to foreigners: Marriage to Indian won’t mean staying in India before applying for citizenship”, The Economic Times, 30 october 2014
29. Maria Linda Rodrigues v. Ashley Joseph Rodrigues, AIR 1993 Bom 110
30. Smt. Joyce Sumathi v. Robert Dickson Brodie, AIR 1982 AP 389
31. Dylan Sharma, “The Foreign Marriage Act- A Critical Analysis”, Indian Folk (2017)
32. Dylan Sharma, “The Foreign Marriage Act- A Critical Analysis”, Indian Folk (2017)
33. Halsbury’s Law of India, “Family Law I”, 65  (Lexis Nexis, second edition/2014)
34. Rahul, “solemnizing marriage under Foreign Marriage Act” 1 (Lawyer’s club India, 2011)
35. Jyotsna Gynanashekar,” A Study Foreign Marriage Act, 1969”, Vol. 2, 1(2017)
36. Dylan Sharma, “The Foreign Marriage Act- A Critical Analysis”, Indian Folk (2017)
37. Problems Relating to Overseas Indian Marriages. LOK SABHA SECRETARIAT
38. Neerja Saraph vs Jayant V.Saraph, 1994 SCC (6) 461
39. Problems Relating to Overseas Indian Marriages. LOK SABHA SECRETARIAT
40. Bill INtroduced on NRI marriages in Parliament. Dipanjan Roy Chaudhury. (Feb 11, 2019)
41. Frauds and Problems related to NRI Marriages and what to do. Shreya Shikha. (Jan 20,    2017)

The post Laws Related to Getting Married Abroad- Foreign Marriage Act, 1969 appeared first on iPleaders.

This article is written by Anjali Dhingra, IInd year student, B.B.A. LL.B, Symbiosis Law School, NOIDA. In this article, the author discusses the expert witness under the Indian Evidence Act, the evidentiary value of his opinion and the difference between the testimony of a layman and an expert.

Introduction

Generally, when a person is summoned to court for giving testimony as a witness, he is expected to state only facts and not to give any opinion. It is the job of the court to form an opinion in the case. Moreover, if a person is asked to give his testimony then it is expected that the person must be factually related to the case not merely a third party.

But there is an exception to this rule. The experts are considered as witnesses although they are not actually related to the case. The court requires these experts to give an opinion regarding the case to help the court in having a wider perspective to give justice. The rationale behind the same is that it is not practical to expect the Judges to have adequate knowledge of medical issues [1]. The statutes regarding the experts’ opinion are discussed in The Indian Evidence Act, 1872.

Who is an expert?

The court cannot form a correct judgement without the help of a person with special skills or experience in a particular subject. When the court needs an opinion in a subject which requires special assistance, the court calls an expert, a specially skilled person. The opinion given by a third person is considered as relevant facts if the person testifying is an expert.

For example, the court was confused that a letter has been written by person ‘X’ or not. The court calls a handwriting expert to find out the same. This person will be known as an expert and the opinion which he gives in the case is relevant.

Expert is defined under section 45 of The Indian Evidence Act, 1872. The court needs an expert to form an opinion upon:

• Foreign law
• Science & Art
• Identity of Handwriting
• Identity of finger impression
• Electronic evidence

Only in the expertise in the above-said fields, a person’s opinion is considered to be an expert opinion. If a field not mentioned above requires an opinion, it is not considered as an expert opinion. There have been cases such as: [2]

• The disposition or temper of animals
• Colour, weight or scale of similar facts
• Age of a person
• If a man or women were intimate
• If a person was intoxicated or not

If an expert is giving an opinion, it is considered as a relevant fact for the case. An expert has devoted his time in learning a special branch of expertise and thus is specially skilled in the subject. It can include:

• Superior knowledge, and
• Practical experience

The court of law, before admitting any of the opinion made by an expert, needs to ensure that the person is an expert under the law. If it is found that the person is not an expert, his opinion is discarded by the court. For checking that the witness is an expert, he must be examined and cross-examined [3]. A person becomes an expert by:

• Practice,
• Observation, or
• Experience

In the case of Ramesh Chandra Agrawal vs Regency Hospital Ltd. & Ors., [4] the court stated that the first and foremost requirement for expert evidence to be admissible is that it is necessary to hear the expert evidence. The test is that the matter is outside the knowledge and experience of the layman. People who can be termed as an expert are explained in detail below.

Handwriting expert’s opinion (Section 47)

When the court has an opinion that who has written or signed a document the court will consider the opinion of a person who is acquainted with the handwriting. That person will give an opinion that particular handwriting is written or not written by that particular person or not.

The handwriting of a person may be proved in the following ways:

• A person who is an expert in this field
• A person who has actually seen someone writing, or
• A person who has received any document which is written by the person whose handwriting is in question or under the authority of such person and is addressed to that person
• A person who regularly receives letters or papers which are written by that person
• A person who is acquainted with the signatures or writing of that person
• A certifying authority who has issued a digital signature certificate when the court has formed an opinion as to the digital signature of a person. This is mentioned under section 47-A of the act.
• The evidence of the writer himself. This is mentioned in section 60 of the act.
• If another person admits that the documents were written by him. This is mentioned in section 21 of the act.
• A person who has seen the person writing or signing. This is mentioned under section 6o of the act.
• When the court himself compares the document in question with any other document which is proved genuine in the court. This is mentioned in section 73.
• The court may ask the person to write something for the court to compare it with the document in question.

For example, Ms. Pinky claims in the court that she has not signed any document for sale of her property. To match her signatures with the one on papers, the court calls Mr. Raju who is the personal assistant of Ms. Pinky. Mr. Raju’s job is to get all the official documents of the company to be signed by Ms. Pinky. Mr. Raju gives a testimony that the papers were signed by Ms. Pinky only. Here, Mr. Raju will be termed as an expert under the meaning of s. 47 as he has seen Ms. Pinky signing the documents and regularly receives such papers.

However, there have been several instances where the courts have been discouraged to decide cases of matching of signatures without evidence and merely on inspection. The court needs to work with the utmost care and caution in determining the authenticity of the documents.

Opinion for Electronic evidence (Section 45A):

When a piece of information is transmitted or stored in a computer system and the court needs assistance or opinion for the same in any case; they refer an examiner of electronic evidence. This examiner of electronic evidence is known as the expert in such cases.

For this section, electronic evidence includes any information transmitted or stored in any computer resource or any other electronic or digital form for which the opinion of electronic evidence examiner is required as per section 79A of the Information Technology Act, 2000.

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Opinion for foreign law (Section 38 r/w Section 45)

When there is a law of prevailing in any foreign country which needs to be considered for giving judgement in any case, the court needs an expert who is well versed with that law.

Otherwise, the court can take opinion from a law-book which contains the answer regarding any foreign law. These books must be printed or published under the authority of the government of that country. Other reports of the ruling of the courts can also be taken as relevant which are given in such books of foreign law.

Foreign law in India is always considered as a question of fact [5]. There have been cases where the court has interpreted personal laws as Indian laws and thus are the laws of the land [6]. Therefore, the court does not require a person to interpret the law as the courts can do that task on their own.

Opinion for fingerprint

Generally, finger impression expert’s opinion is given more value because: [7]

• The fingerprints of any person remain the same from their birth till death, and
• No two individuals’ are ever found to have the same finger impressions

Footprint studies are gaining importance nowadays but the courts have been reluctant to accept that as a piece of evidence. A person, who is a fingerprint expert, is called to match two or more fingerprints, than the opinion of such an expert is relevant and admissible in the court.

Opinion for Science or Art

The words ‘Science and Art’ are to be broadly constructed. The term ‘science’ is not limited to higher sciences and the term ‘art’ is not limited to fine arts, but having its original senses of handicraft, trade, profession and skill in work.

To construe that if any expertise comes under the head of ‘art’ or ‘science’; the following tests can be applied [8]:

• Is the subject matter of the injury such that inexperienced people are not capable of forming a correct judgement without the assistance of experts?
• Is the character of a science or art as such that it requires a course or a study to obtain a competent knowledge or skill.

Science and Art signify the activities which include the fields which require special knowledge or expertise form an opinion. Before designating that a person is an expert, it needs to be checked that the field or the matter on which we are seeking the opinion should not be something which can be easily understood by layman or court without any special knowledge or skill.

The scientific question involved is assumed to be not within the court’s knowledge. Thus cases, where the science involved, is highly specialized and perhaps even esoteric, the central role of an expert cannot be disputed [9].

Every science has its own technical terms, which are so much Greek or Hebrew to the average juryman. What would the Ordinary man make of this answer to a question whether a certain dose of a prescription containing chloral would have been dangerous! [10]

There can be various categories which can be treated under art and science. Some of them are discussed below for better understanding.

Opinion of Medical Expert

In many cases, the opinion of medical experts is required. Especially in criminal cases, the medical examination of accused and victim is necessary. When in a case, the court requires some opinion which involves medical technicalities, they ask medical officers.

Opinions of a medical officer can be used to prove: [11]

1. The Physical condition of the person,
2. Age of a person
3. Cause of death of a person
4. Nature and effect of the disease or injuries on body or mind
5. Manner or instrument by which such injuries were caused
6. Time at which the injury or wounds have been caused.
7. Whether the injury or wounds are fatal in nature
8. Cause, symptoms and peculiarities of the disease and whether it is likely to cause death
9. Probable future consequences of an injury etc.

Say in a rape case, the medical report of the victim and accused are of great importance. If the medical officer says that he thinks that act was not consensual referring to the injuries on the body of the victim and the nail scratches on the body of the accused, this opinion carries a lot of importance.

But the problem with these experts is that they are always called by one party only who has evidenced in their favour. This is the reason that the court is reluctant to rely completely upon the views and opinions of the expert though they consider the same while imparting their judgement.

In other cases, if the court finds that the expert’s opinion is in contradiction with the opinion of an eye-witness then for obvious reasons, the normal witness’s opinion is given preference over the expert’s opinion. This is because the expert’s statement is just opinionative whereas the other witness’s statement is based upon the facts of the case.

Opinion of Ballistic Expert

Ballistic experts, also known as firearms expert are people who are experts in the study of projectiles and firearms. Their help is taken is cases say where guns are involved.

A ballistics expert may trace a bullet or cartridge to a particular weapon from which it was discharged. Forensic ballistics may also furnish opinion about the distance from which a shot was fired and the time when the weapon was last used. [12]

It must be noted that the opinion of the ballistics expert can be taken into consideration only when he himself has given the report. In the case where the expert gives opinion only by looking at the picture of the wound, the court denied relying upon such opinion. [13]

Evidence of Tracking Dog

Trained dogs are used for the detection of crime. The trainer of tracking dogs can give evidence about the behaviour of the dog. The evidence of the tracker dog is also relevant u/s 45. [14]

Moreover, Sec.293 Cr.P.C. provides a list of some Govt. Scientific Experts as following:-

• Any Chemical Examiner / Asstt. Chemical examiner to the Govt.
• The Chief Controller of explosives
• The Director of the Fingerprint Bureau
• The Director of Haffkein Institute, Bombay
• The Director, Dy. Director or Asstt. Director of the Central and State Forensic Science Laboratory.
• The Serologist to the Govt.
• Any other Govt. Scientific Experts specified by notification of the Central Govt.

What is the Evidentiary Value of an Expert Opinion

The data given by the expert are relevant and admissible. If any oral evidence contradicts the data/ report; it will not make the data evidence obsolete. But, as per section 46, in case any fact is in contradiction to the opinion of the expert, that fact becomes relevant. If the opinion of the expert is relevant, the contradictory fact becomes relevant even though it was not relevant as such. The value of expert opinion depends upon the facts on which he is based and the competency of such expert in forming a reliable opinion.

However, the personal appearance of the expert in the court can be excused unless the court expressly asks him to appear in person. In such a case, where the expert is excused, he can send any responsible officer who is well versed with the facts of the case and the report and can address the court with the same.

If a judge relies upon the opinion of the expert only and not on the facts and the testimony of ordinary witnesses to give judgement then is the weakness of the case. This is because even if a person is an expert in his field, he cannot be termed as a direct witness and cannot give a statement on the facts of the case. He is just giving an opinion as per the evidences given to him and cannot draw a conclusion regarding the guilt of the accused in all the cases.

The evidence given by the expert is just an opinion and is not a fact-based testimony and thus are given slight value. This is the reason that eye-witnesses or other factual witnesses are given a priority over the expert’s opinion. This is because opinion evidence cannot supersede substantive evidence. No expert can claim that he could be absolutely sure that his opinion was correct, expert depends to a great extent upon the materials put before him and the nature of the question put to him. [15]

However, the evidentiary value of an expert’s opinion depends upon the facts and circumstances. For example, if there is a dispute as to who is the biological parent of a child, the DNA report of the Medical expert is of great importance. If the expert says that the DNA of the child or parents matches, than it is a relevant fact in deciding the case.

But in case if a handwriting expert says that the signatures matches or not matches with the person; this fact does not hold much value because there can be a possibility that the person has practiced a lot to copy the signature. But on the other hand, DNA cannot be copied or changed.

Privy council once observed that ‘there cannot be any more unsatisfactory evidence than that of an expert.” In the case of Emperor v. Kudrat [16], the court held that when the expert is giving an opinion upon the age by observing only the height, weight and tooth; it cannot be relied upon.

The court must be satisfied that the accused is guilty. The court cannot hold him guilty mere because an expert has said that in his opinion, the person is guilty. The court needs to look into the evidence along with the opinion of the expert before giving any judgement or order.

Difference between the testimony of an expert and an ordinary witness

Conclusion

Unlike an ordinary witness, expert witnesses have a separate standing as a witness in a court. It is interesting to note that an expert’s report cannot be questioned in the court. The report is questioned when the ability and knowledge of the expert to make that report is in question. The experts are judged with a different eye by the court since they are just giving an opinion and are not aware of the facts of the case. But still, an expert’s opinion matters as the court has no knowledge of that particular field of expertise and they will not be able to impart justice without seeing the other side of the coin.

References

1. 1. Expert’s Opinion and its admissibility & relevancy: An Analysis in view of Law of Evidence. Legal service India.com.
   2. NOSHIRVAN H. JHABVALA. THE INDIAN EVIDENCE ACT (ACT 1 OF 1872). 107 (2013)
   3. Balkrishna Das Agarwal v. Radha Devi, AIR 1989 All 133
   4. Ramesh Chandra Agrawal vs Regency Hospital Ltd. & Ors., [2009] INSC 1569
   5. Khoday Gangadhara v. Swaminath Mudali 1926 Mad 218
   6. Sadhana.S, K.Roja, A Study on the Admissibility of expert evidence in Indian Evidence Act. 120 International Journal of Pure and Applied Mathematics 1129 (2018).
   7. Sadhana.S, K.Roja, A Study on the Admissibility of expert evidence in Indian Evidence Act. 120 International Journal of Pure and Applied Mathematics 1129 (2018)
   8. NOSHIRVAN H. JHABVALA. THE INDIAN EVIDENCE ACT (ACT 1 OF 1872). 106 (2013).
   9. Law relating to Expert Opinion under the Indian Evidence Act. VAKILNO.1.COM (2018)
   10. THE VALUE OF EXPERT EVIDENCE. By ARDEMUS STEWART.
   11. Expert’s Opinion and its admissibility & relevancy: An Analysis in view of Law of Evidence. Legal service India.com
   12. Expert’s Opinion and its admissibility & relevancy: An Analysis in view of Law of Evidence. Legal service India.com.
   13. Mohan Singh v. State of Punjab AIR 1975 SC 2161
   14. Expert’s Opinion and its admissibility & relevancy: An Analysis in view of Law of Evidence. Legal service India.com.
   15. The State (Delhi Administration) v. Pali Ram, AIR 1979 SC 14
   16. Emperor v. Kudrat, (1939) All. 871
   17. Anjelica Cappellino. Lay Witness vs. Expert Witness Opinions: A Primer. The Expert Institute. (December 27, 2016)

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This Article is written by Shreya Tripathi of Banasthali Vidyapith, Jaipur. Here, she discussed Bhopal Gas Tragedy with Development of Environmental Law along with the concept of Absolute Liability.

Background of the Case

Bhopal Gas Tragedy was a deadly disaster which took place in Bhopal, India leaving behind thousands dead and thousands other maimed for life. This is considered as one of the most horrific and lethal industrial disasters.

On a 1984 winter night, the lethal Methyl isocyanate Gas (MIC) which leaked from the Union Carbide factory making it the worst industrial disaster which the world has ever seen. In the 1970s, the Indian government was encouraging foreign investment in local industries and for the same Union Carbide Corporation (UCC) was asked to build a plant in Bhopal for the manufacture of Sevin, which is a pesticide used commonly throughout Asia. The Government of India itself had a 22% stake in the company’s subsidiary Union Carbide India Ltd. (UCIL).

Due to its central location and transport infrastructure Bhopal was chosen for the establishment of the plant. Bhopal was the area zoned for light industrial use and not the heavy and hazardous ones. This plant was initially approved for just formulation of pesticides but due to the increasing competition, it started manufacturing other products under the same facility which involved more hazardous processes.

On Dec 2, 1984, a small leak of MIC gas was noticed. On the morning of 3rd Dec 1984, a plume of MIC gas was there in the air leading to deaths of thousands of people. According to an estimate, 3,800 people died immediately, out of which most were in poor slums adjacent to the plant. Estimated number of deaths in the first few days was more than 10,000 and reported 15,000 – 20,000 premature deaths in the next 2 decades. After the incident, UCC tried to deny being responsible for the incident by shifting the matter towards UCIL (Union Carbide India Ltd) by trying to make the point that the plant was fully built and operated by the Indian subsidiary that is UCIL.

In March 1985, the government enacted the Bhopal Gas Leak Disaster Act to ensure the dealing of claims arising after the incident speedily and equitably. This made the government as the only representative of the victims in the legal processes in and outside the country.

The settlement was made by Supreme Court of India with UCC in which UCC agreed to take the moral responsibility and paid a claim of $470 million to the government which was negligible compared to a multi-billion dollar lawsuit which was filed by an American lawyer in a U.S court. This amount of $470 million was based on the disputed claim that only 3,000 people died and 1,02,000 suffered permanent disabilities. According to Bhopal Gas Tragedy Relief and Rehabilitation Department, by the end of October 2003, compensation was awarded to 5,54,895 people for injuries received and 15,310 survivors of those killed.

After this settlement, the matter was placed entirely under Indian jurisdiction. The government was blamed for not having appropriate laws for environmental safety and for settlement of claims through the establishment of liability. If this kind of proper laws would have prevailed then the victims of the incident would have got better compensation and it would have been difficult for UCC to get off the matter.

As after the breathtaking tragedy, the Indian government passed and implemented The Environment Protection Act (E.P.A) of 1986 under Article 253 of the Indian constitution. Its purpose was to implement the decisions of the UN Conference on the Human Environment of 1972 to provide protection to an improvement of environment and prevention of hazards for humans, plants, other living creatures. This act strengthens the regulations on pollution control and environment protection by hazardous industries.

The act provides the Centre with a lot of power to take all necessary actions required for the protection of the environment. It enables the executive wing to issue notifications and orders which becomes guidelines for the administrative agencies. Basically, it provides the Centre with the power to make rules for environment protection. The act has 7 schedules specifically laying down the rules for emission or discharge of pollutants from industries, prescribing emission of smoke, etc. from vehicles, provides a list of authorities to be approached in case of any discharge outside the prescribed levels and standards.

Under the provision of Section 25 of EPA, 1986 another set of rules was passed “Hazardous Waste(Management and Handling) Rules, 1989”. It includes the management of 18 categories of waste basically all toxic chemicals which could be stored in industries and used for different purposes. Some categories of waste which are included in this are-metal finishing waste, waste containing water-soluble compounds of lead, copper, zinc, etc. It issues the notification that the one generating this type of wastes or the one operating the facility which generates this type of wastes is responsible for the proper management and handling of the waste.

The Environmental Impact Assessment Notification of 1994 includes almost all kinds of activities which could harm the environment in any way. Through this notification, an impact assessment of any project became mandatory. The Central Government is required to carry out an environmental impact assessment on a large scale before passing any project listed under the notification. It also established a “Right to Know”, that is, public hearing through which the common man who would get affected by the project is given the chance to speak out and is made aware of the project. Basically, a lot of transparency was included in the system for the validation of any developmental project.

The journey begins of legal principle cannot be easily understood through a case study of a very landmark case M.C. Mehta vs. Union of India.

The principle of “Absolute Liability” was established by Supreme Court after one more gas leak (though not a major one like Bhopal Gas Tragedy) in Shriram Fertilizer Factory in New Delhi on 4th Dec 1985, where the oleum gas was leaked from the bursting of the tank containing oleum gas which was caused by human and mechanical errors and not by any third party. This concept is of utmost importance today.

Bhopal Gas Tragedy was an incident which opened the eyes of the legislature and made their attention available to the environment and its protection. Even before this tragedy, laws such as Water Act of 1974 and Air Act of 1981 existed but EPA provides an umbrella to the Central Government for the coordination of various state and central authorities established under these previous laws. Therefore it would not be wrong to state that had the proper legislative framework would have existed then either this tragedy would not have occurred or the sufferings of the people could have been made less. The CEO of the accused UCC has died and the lawsuit against him has been shut down forever. Lack of proper and sufficient laws resulted in the loss of life of thousands of people and leaving behind many to suffer and live in pain of the after-effects of the tragedy.

Principle of Strict Liability

This principle was to develop from a well-known case of  Ryland vs. Fletcher (1868 LR 3 HL 330). This case was decided by Lord Chancellor, Lord Cranworth and Lord Cairns.

Ryland was the plaintiff and Fletcher was the defendant in the case. Plaintiff was the occupier of the mine and defendant owes a mill in neighbour to the mine and they propose to make a reservoir to store water for the purpose to use in a mill and another adjacent land near to it. Defendant took the help of agents to construct the reservoir while making it.

They did not take reasonable care and precaution and due to the heavy weight of water, the shaft broke and the water passed into the mine of the plaintiff which cause damage to the plaintiff. While giving the final decision Lord Cairns distinguished between the natural and non-natural use of land.

Under Ryland case, the court declares it’s as Principle of “Strict Liability” rule. The Supreme Court got the chance to make this principle when a petition filed under Article 32 of the Constitution of India emerged into the form of PIL (Public Interest Litigation).

A very famous case of M.C. Mehta vs. Union of India was filed in the Court of law as a PIL for the incident which took place on 4th December to 6th December 1985, where Oleum gas was leaked from one of the Units of Shriram Food and Fertilizers in the area of Delhi and become famous by the name of Oleum Gas Leakage Case. During this accident, one of the advocates of Tis Hazari Court died and many others were also affected by it at a large number.

So, an environmental activist Mr M.C. Mehta approached Supreme Court of India and filed a PIL, so the court may take action on the matter and decide the liability and responsibility of the person for the incident.

During that period, the court was going across the most activist stage and denied to follow the ruling of Ryland vs. Fletcher case. Justice Bhagwati said that he cannot afford to evolve any type of guidance and any standard liability under constitutional norms. Law has been made to satisfy the needs of the rapid changing society and keep aside the development of the economy of the country.

All the industries which are set up in the residential locality and engaged in a hazardous toxic chemical which will affect the health and safety of the people of locality owe an absolute responsibility for the community to ensure them no harm or damage will be caused to them.  The industries are under obligation to use the highest standard amount of equipment and machines to avoid damages to a large number of the population residing nearby. They should use a filter to avoid pollution.

Certain guidelines are given under Environmental law which needs to be followed by every industry which is engaged with the toxic and hazardous substances to avoid pollution. If they do not follow the guideline then their licence will be cancelled by the inspection team.

So, now we can easily distinguish between both the principles of Strict liability and Absolute Liability Strict liability is applicable to all the things which exist in a place but for absolute liability, things causing harm or damages and it must be in relation to Hazardous and toxic substance. So, on this note, the court has narrowed down the principle of strict liability.

But the more exciting and happening part of it is that the liability of the defendant become absolute in every manner. No matter what the damages will be caused due to the negligence on the part of the defendant, no matter how the hazardous item escaped, what the reason is but the consequences are to be faced by defendant only, once it is proved by the plaintiff side that the damage was caused by the defendant through hazardous item, no excuse will be applicable to it except the case of Act of God. Court laid down that measure will be taken to finalize the amount of compensation should be within the capacity of the enterprise.

The rule laid down under this case was approved by Court in Charan Lal Sahu Vs. Union of India, AIR 1990 SC 1480 where the court held that defendant has absolute liability for the act he cannot escape by saying that he took all the reasonable care on behalf of his part.

Yet in another case of Indian Council for Environmental Legal Action vs. Union of India AIR 1996 SC 1446 the court held that “Once the event is carried related to hazardous substance then is liable to take all the loss caused to another person irrespective of taking reasonable care while carrying out the activity.

Conclusion

After this act, the principle of absolute liability is given more emphasis and the Indian Judicial system took an affirmative step by adopting this principle. Bhopal Gas Tragedy was an event whose effect can still be seen in many newborn children who were born with abnormalities and it was very important to give direction to all the industries established near the residential area to take all the precaution and not to play with the precious lives of people.

References

1. Edward Broughton. The Bhopal disaster and its aftermath: a review.

2. Sunita Narain, Chandra Bhushan. 30 years of Bhopal gas tragedy: a continuing disaster. Down to Earth

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This article is written by Khushi Agrawal, a student of Symbiosis Law School, Noida. She has discussed the concepts of transfer of ownership under the Contract Act in detail.

Introduction

Transfer time for the sale of goods involves the transfer of ownership of the property from the seller to the buyer. For the following reasons, it is necessary to determine the exact time at which ownership of the goods passes from the seller to the buyer:

1. Risk passes through the property. The rule is, prima facie risk passes with the property. Where the goods are lost, damaged, accidentally or otherwise, the owner of the goods shall incur the loss, subject to certain exceptions at the time of loss or damage of the goods.
2. Any action taken in connection with third parties. If a third party damages the goods, it is the owner who can take action.
3. What are the implications of insolvency? In the case of either the buyer or insolvency of the seller, it is necessary to know if the official customer will take control of the goods. The answer depends on whether ownership of the goods is with the insolvent party.
4. Price suit. The seller’s price suit will not lie unless the property has passed on to the buyer unless the contract provides for other reasons.

Law relating to the passing of risk in case of the sale of goods

The fundamental principle is the prima facie risk of ownership. According to Section 26, the goods remain at the risk of the seller until their property is transferred to the buyer unless otherwise decided. However, if the property is transferred to the purchaser, the goods are at risk, whether or not the delivery was made. Thus risk and property go hand in hand.

But separating the risk from ownership is open to the parties. For example, the parties may agree that the risk passes after or before the property passes.

You can do the following to separate risk from the property.

• First of all, the goods are at risk of failure of the party where delivery is delayed due to the seller or buyer’s fault.
• Second, a commercial custom can divide risks and goods.
• Third, the agreement between the parties can distinguish between risk and property.

When is property in the goods passed under The Sale of Goods Act?

Sections 18 to 25 of the Goods Sale Act set out the rules that determine when ownership of the property passes from the seller to the buyer. These rules can be summarized as follows:

1. Transfer of property in unspecified goods
2. Transfer of ownership in ascertained goods
3. Transfer of property in ascertained goods
4. Transfer of property in the sale by approval
5. Transfer of property when the right of disposal is reserved

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A. Transfer of property in unspecified goods

1. In the case of an uncertain goods sale contract, the property in the goods shall not be transferred to the buyer until and unless it has been determined (see Section 18).
2. How are the commodities determined? By a valid assumption, the goods contained in that description shall be passed on to the buyer under Section 23(1), in a description contract, by either the seller or the buyer in agreement with the consent of the seller if the goods contained in that description are unconditionally assumed under that contract. The goods are subject to appropriation verification. There is only a selling agreement until appropriation has been reached. Appropriation means, by mutual consent of the parties, the selection of goods.

The following are the appropriation essentials:

(A) The goods should confirm the description and quality stated in the contract.

(B) The goods must be in a deliverable condition.

(C) The goods must be unconditionally (as distinguished from the intention to be appropriate) appropriated to the contract either by delivery to the purchaser or his agent or carrier.

(D) The appropriation shall be by the seller with the purchaser’s consent or by the buyer with the seller’s consent.

(E) The consent may be expressed or implied.

(F) The consent may be given either before or after the appropriation.

Therefore if a person agrees to sell ‘B’ 20 tons of oil of a specific description in his cisterns and has in its cisterns over 20 tons of description oil, no property shall be sold to ‘B’ unless 20 tons is separated and suitable for the contract from others. Therefore, no property shall be allowed.

Delivery to the carrier [Section23(2)]– Where the seller delivers the goods to the carrier for transfer to the purchaser and does not reserve the right of disposal, the property shall be transferred to the purchaser. The carrier is the purchaser’s agent, and delivery to the purchaser amounts to risk.

The key elements of the carrier’s delivery are:

• The delivery, i.e. the goods must be in accordance with the contract description and quality.  
• For transmission, to the buyer, the seller delivers products to the buyer or carrier or bailee. This must be in accordance with the contract.
• No right of disposal shall be reserved for the seller.

By the seller with the consent of the buyer

Illustration

‘A’ of Madras orders certain goods from a Calcutta manufacturer ‘B’. When the goods have been ready, ‘B’ shall assign the goods to the contract informing ‘A’ that the goods are ready, on which ‘A’ requests ‘B’, after having affected the Insurance, to send them by rail to Madras. As soon as the goods after being insured are delivered to the Railway Authorities (the buyer’s consent after appropriation), the property on the goods shall pass from ‘B’ to ‘A’.

‘A’ sell 500 pounds of rice to ‘B’ and the rice is packed into the seller’s gunny bags and the words “wait orders from the buyer” are added to the gunny bags with buyer’s address. The decision was made that, despite the fact that the goods are in a deliverable state, the property did not change hands because the buyer did not have the agreement to this appropriation yet.

B. Transfer of property in ascertained goods

If an agreement exists for the sale of certain or ascertained goods, the property therein shall be transferred to the customer at the time the contracting parties intend to transfer the good [Section 19(1)]. The intention of the parties concerned must be determined-

• the terms of the contract,
• the conduct of the parties, and
• the circumstances of the case [Section 19(2)]

The rules laid down in sections 20 to 24 are applicable only if the parties’ intention cannot be judged on the basis of their contract or conduct or other circumstances [Section 19(3)]. The rules are as follows:

(a) Specific goods in a deliverable state [Section 20]

In the case of the unconditional contract for the sale in a deliverable state of the specific goods, the property transfers to the buyer and whether the date on which payments were made or the time the goods were delivered or both were delayed is irrelevant.

(b)Specific goods to be placed in a deliverable state [Section 21]

Where there is a contract to sell specific goods and the seller is bound to perform anything in order to put them in a deliverable condition, the property shall not pass into the goods until such things have been done and the buyer has received notice of it.

(c) Specific goods to be weighed or measured

• Section 22 in a contract for the sale of specific goods in a deliverable state,
• The property shall not pass on the property until the buyer has notified the seller,
• where the seller has the obligation to weigh, measure, test or do any other action or thing concerning those goods for price determination.

Here the ownership is transferred to the buyer in any of the following three ways:

1. By acceptance.
2. By adoption of the transaction.
3. By failure to return the goods.

1. Acceptance

The buyer can accept the goods and inform the seller accordingly. The buyer shall transfer its ownership to the buyer if the buyer gives its acceptance to the seller.

Example: ‘A’, a seller of books, delivered “approval books” to ‘B’. Later, ‘B’ notified ‘A’ that the books had been accepted. In this case, the books are expressly approved and the property is transferred to ‘B’ upon its approval.

2. Adoption of the Transaction

The purchaser may adopt the transaction by acting in respect of the goods. When the buyer makes any act which shows that the goods have been adopted, ownership shall be transferred to the buyer on the adoption act. The implicit acceptance is known. It usually occurs when the buyer handles his own goods.

Example: ‘A’ on “sale or return” basis delivered certain golden ornaments to ‘B’. In similar terms, ‘B’ delivered them to ‘C’ and ‘C’ to ‘D’. During D’s custody, the ornaments were stolen. ‘B’ had taken the transaction in this case by supplying the ornaments to ‘C’. ‘B’ is therefore responsible for paying the price to ‘A’. ‘C’ also took the transaction by supplying the ornaments to ‘D’. And thus, ‘C’ is also liable to pay the price to ‘B’.

3. Failure to Return the Goods

Ownership is also transferred to the buyer if the goods are not returned to the seller. This is also implied acceptance of the goods.

C. Transfer of Property in the sale by approval  

When goods are delivered on approval (Section 24), the property therein passes to the buyer when goods are delivered on an approval to the buyer, or on “on sale or return” or under a similar condition:

• Where the buyer expresses his consent or acceptance to the seller, or
• where the buyer does any other act that takes the form of transaction, e.g. pledges or resells the goods.
• the purchaser retains the goods after the time specified for the return of the goods, without notice of refusal or without time specified, over a reasonable time period.

Illustration

‘A’ sells or returns a diamond to ‘B’. ‘B’ gives the same to ‘C’ on similar terms and ‘C’ provides the same to ‘D’ on sale or return. The diamond was lost from D’s custody. Since ‘B’ is unable to return the diamond to ‘A’, his act of giving the diamond to ‘C’ is tantamount to adopting the transaction. Similarly, if the buyer on sale or return pledges the goods to a third party, the act of pledge shall be taken as an act adopting the transaction.

Where the goods have been sent to the purchaser on sale or return within a fixed period of time within which to express his approval, the property shall pass to the purchaser as soon as that period expires although the purchaser does not give his approval or acceptance and if no such time is fixed upon the expiry of a reasonable period of time.

D. Transfer of Property When Right of Disposal is Reserved  

The purpose of reserving the right of disposal of the goods is to ensure that the price is paid before the property passes to the purchaser. In the Vpp (Prepaid Value) system, for example, the buyer is owned until the seller retains control of the products when the price is paid against the delivery.

Section 25(1) stipulates that-

• In a contract to sell specific goods or where the goods are subsequently appropriated for the contract.
• The seller can, until certain conditions are met, reserve the right to dispose of the goods.
• the purchaser may not acquire ownership of the goods until conditions imposed by a seller are fulfilled, even if the goods are delivered either to the purchaser itself or to any carrier or other bailees for transmission to the purchaser.
• For example, X sends certain goods by lorry to Y and instructs the lorry driver not to deliver the goods until Y pays the lorry driver the price.
• When the price is paid. The seller is presumed to have reserved the right of disposal under the following circumstances:
• By taking a title document in his own name or his agent’s name [Section 25(2)].  The seller is presumed to have reserved the right of disposal when goods are shipped or delivered for carriage to railways but the seller takes the title document, i.e. the lading bill (in the case of carriage by sea) or the railway receipts (in the case of carriage by rail) in his own name or on behalf of his agent. Only when the buyer pays the price in exchange for a lading bill or receipt from the railway, the property passes over to the buyer.

Example: Some paper bales sold by rail to ‘B’ were to be sent to him. ‘A’ took the railway receipt in the name of ‘B’ and sent it to his own banker to be delivered to ‘B’ upon payment of the price. The goods were destroyed by fire before ‘B’ paid the price and received receipts from the railway. The court held that the seller should suffer the loss as he reserved the right of disposal and when the bales were destroyed, their ownership was not transferred to the buyer. [General Papers Ltd. v. V.P.] Mohideen & Bros. 1958 Madras 482.

• When the bills of exchange are sent along with the RR / bill of lading to the buyer. [Paragraph 25(3)]. Where a carriage (e.g. a shipping company or railway) receives the goods on behalf of the buyer and receives a lading bill or rr. However, the seller draws an exchange letter to the buyer for the price of the goods and sends it to the buyer to ensure price payment along with the loading letter or railway receipts. The goods will not be passed on to him until the buyer accepts the bill of exchange for the property or pays the price of the goods. If the goods are retained without accepting a bill of exchange or paying the price, the property will not pass.

Transfer of title

A Latin maxim says: ‘The Nemo dat quod non habet.’ That is the basic principle of the transfer of title. Section 27 to 30 of the Sale of Goods Act, 1930 states laws on the transfer of title. The Latin maxim says that no one can give what they don’t have.

Section 27 deals with the sale of a person who is not the owner. Imagine a sales contract where the seller-

• Is not the owner of the goods
• Does not have the owner’s consent to sell the goods
• Has not been given the owner’s authority to sell the goods on his behalf

In such cases, the buyer does not acquire a better title to the goods than the seller had, provided that the conduct of the owner precludes the authority of the seller to sell.

Let’s look at an example. Peter steals a mobile phone from his office and sells it to John, who buys it in good faith. John will not get a title on the phone and will have to return it to the owner when he asks, i.e. there is no transfer of title.

Now, it seems to be a very straightforward rule. However, enforcing this rule can mean that innocent buyers may suffer losses in most cases. Therefore, certain exceptions are provided to protect the interest of buyers.

Exceptions– In each of the following cases, a person who is not an owner may give the transferor a valid title to the goods:

1. Transfer of title by estoppel [(Section 27)]

If by his conduct or words or by any act or omission, the true owner of the goods leads the buyer to believe that the seller is the owner of the goods or has the authority to sell them, he can not subsequently deny the seller’s authority to sell them. The purchaser is better than the seller in such a case.

Examples:

• ‘O’ who is the real owner of the goods, causes buyer ‘B’ to believe that ‘S’ has the authority to sell the goods. ‘O’ can’t question the seller’s desire for title on the goods.
• ‘A’ was the true owner of the goods. ‘B’ the seller told buyer ‘C’ that he owned the goods. ‘A’ was there but remained silent. ‘C’ bought the goods from the title ‘B.’ Can ‘A’ question ‘C’ over the goods?

2. Sale by a mercantile agent [Proviso to Section 27]

Goods are frequently purchased under joint ownership. In many cases, by the authorisation of co-owners, the goods are held by one of these joint proprietors. If the person (who only owns the goods) sells the goods, the property is transferred to the buyer in respect of the goods. The buyer does this in good faith and has no reason to believe that the seller does not have the right to sell the goods.

Illustration

• Peter, John, and Oliver are three friends buying a 42-inch TV set to watch the upcoming World Cup cricket. They unanimously decide to keep the television set in the house of Oliver. Once the World Cup is over, the TV is still in his house.
• One day, Julia, Oliver’s office colleague, visits his house and sells the TV to her. She buys it in good faith and has no knowledge of the fact that it was purchased together. She gets a good TV title in this case.

3] Sale by a Person in Possession of Goods under a Voidable Contract (Section 29)

Consider a person who acquires possession of certain goods under a contract which is voidable on the grounds of coercion, misrepresentation, fraud or undue influence. The purchaser shall acquire the goods a proper title if the original owner of the goods sells the goods until the contract is terminated.

Illustration

Peter fraudulently gets a ring of gold diamonds from Olivia. Olivia can waive the contract whenever she wishes. Peter sells the ring to Julia, an innocent buyer before she realizes the fraud. In this case, Olivia cannot recover the ring from Julia as she did not cancel the contract before the sale was made.

4] Sale by a Person who has already sold the Goods but Continues to have Possession [Section 30 (1)]

Consider a person who has sold goods but remains in possession of the goods or title documents. This person can sell the goods to another buyer.

If the purchaser acts in good faith and is not aware of the prior sale, a good title for the goods will be issued to the purchaser even if the property contained in the goods has been transferred to the first purchaser.

5] Sale by Buyer obtaining possession before the Property in the Goods has Vested in him [Section 30 (2)]

Consider a buyer who obtains possession of the goods before the property in them is passed on to him, with the seller’s permission. He may sell the goods to another person, make promises or dispose of them.

Where a second buyer receives goods in good faith and without notice or any other right from the original buyer, he gets a good title.

This rule does not apply to a contract for hire purchase that allows a person unless the sale has been agreed to own the goods and buy an option.

Illustration

Peter takes a car from John under the conditions that he will pay Rs. 5,000 each month as rent for the vehicle and may choose to buy it for Rs. 100,000 to be paid in 24 equal installments. Three months Peter pays Rs. 5,000 and sells Oliver’s car. In that case, John is able to recover Oliver’s car because Peter didn’t buy it nor agreed to buy it. He had only one way to purchase a car.

6] Estoppel

If the conduct prevents a goods owner from denying the authority of the seller to sell, the buyer receives a good title. However, in order to obtain a good estoppel title, it must be proved that the original owner actively suffered or condemned the seller in question as a person authorized to sell the goods.

Let’s look at an example. Peter, John, and Oliver are having a conversation. Peter tells John that he owns the nearby parked BMW car that really belongs to Oliver. However, Oliver remains silent. Then Peter sells the car to John.

In this case, though the seller is Peter who has no title to it, John will get a good title to the car. Because Oliver did not deny Peter the power to sell the car through his conduct.

7] Sale by an Unpaid Seller [Section 54 (3)]

If a non-paid seller uses his lien or stop-in-transit rights and sells the goods to another purchaser, then the second purchaser receives a good title against the original purchaser. In such a case, therefore, the title will be transferred.

8] Sale under the Provisions of other Acts

• Sale by the Company’s Official Receiver or Liquidator will give the buyer a valid title.
• Under the circumstances [Section 169 of the Indian Contract Act, 1872] the sale of goods by a pawnee may convey a good title to the buyer [Section 176 of the Indian Contract Act, 1872].

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This article is written by Richa Goel of Banasthali Vidyapith. In this article, she has discussed the concept of Public Prosecutor along with its provision and its important case laws.

Introduction

A Public Prosecutor is considered as the agent of the state to represent the interest of common people in the criminal justice system. The prosecution of the accused is the duty of the state but not individually the duty of the aggrieved party. They are appointed in almost all countries. The Public Prosecutor is defined in Section 24 of Cr.P.C. They serve as the basic principle of Rule of Law i.e. auld alteram partem (no person shall be condemned unheard).

Meaning

Section 2(u) of the Code of Criminal Procedure defines Public Prosecutor.

“A person who is appointed under Section 24 of CrPC and it also includes any person who is acting under the directions of Public Prosecutor.”

In the case of Babu vs State of Kerala,

The Court observed that Public Prosecutors are ministers of justice who is duty bound to assist the judge in the administration of justice.

Functions

The functions of the Public Prosecutor differ according to their designation.

• Public Prosecutor- supervise the function exercised by the Additional Public Prosecutor in Session Court and High Court.
• Chief Prosecutor- supervise the functions exercised by Assistant Public Prosecutor in Metropolitan Magistrate Court.
• Additional Prosecutor- conduct criminal proceedings in the Session Court.
• Assistant Public Prosecutor- they examine the charge sheet prepared by agencies and submit the acquittal or discharge. They also are responsible for the evaluation of evidence and filing revisions petitions. They also conduct the criminal proceedings in the Court of Metropolitan Magistrate.
• Director of Prosecution- it is the head office. They exercise the overall control and supervision of officers of Directorate. They also look after the Account Branches.

The objective of establishing a Directorate of Public Prosecutors is to supervise and scrutinise the functions relating to various prosecution agencies at Assistant Session level and Session level except at High Court.

Reasons for the Appointment of Public Prosecutor

Whenever any crime is committed against a group or individual, it is assumed that it has been committed against society. It is the duty of the state to provide justice to any group of society or person who is affected by the crime. In India, it is necessary that the criminal justice system should function within the limits of the Indian Constitution, which means that it is necessary for the Public Prosecutor to act in accordance with the principles of:

• Equality before law
• Protection against double jeopardy
• Protection against self-incrimination
• Protection against ex-post law
• Right to life and personal liberty except procedure established by law
• Presumption of innocence until proven guilty
• Arrest and detention must be in accordance with the provisions of Cr.P.C.
• Equal protection of laws
• Speedy trial
• Prohibition of discrimination
• Right of accused to remain silent

Role of Public Prosecutors

It is divided into two parts:

• In investigating process
• During the trial

Role of the Public Prosecutor in the investigating process

• To make an appearance in the Court and obtain an arrest warrant
• To obtain search warrants for conducting a search in specified premises
• To obtain police custody remand for interrogation (including custodial interrogation) of the accused
• To initiate a proceeding for the declaration of the non-traceable offender as the proclaimed offender
• To record the evidence of accused in the police report regarding the advisability of the prosecutions

Role of Public Prosecutors at the time of trial

• Sentencing- when the accused is proven guilty, then the defence counsel and the Public Prosecutor further argue to decide the quantum of punishment. At this stage, the Public Prosecutor may argue for the adequate punishment keeping in mind the facts, circumstances of case and gravity of the offence. It helps the judge to arrive at a judicious decision.
• To conduct a speedy trial- Right to a speedy trial is a fundamental right and it is impliedly given in Article 21 of Constitution of India which states “Right to life and Personal Liberty”. The prosecutors have a responsibility to call all the witnesses whose evidence is essential to decide the case. To cross-examine the witness and to see that no witness if left unexamined. To produce all the necessary documents.

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Other Important Roles

• The Public Prosecutor cannot aggravate the facts of the case or deny to examine the witness whose evidence may weaken the case. The main aim must be to discover the truth.
• He should not defend the accused. It is against the fair play of administration of justice or against the legal profession.
• He represents the State, not police. He is an Officer of State and is appointed by State Government. He is not a part of any investigating agencies but an independent authority. He is charged with statutory duties.
• Superintendent of; police or District Magistrate cannot compel to the Public Prosecutor to withdraw the case.
• If there is an issue which is raised by defence counsel and failed, it should be brought out in the notice of the court by Public Prosecutor.
• To ensure that justice is done.

Provision Under Cr.P.C

Hierarchy of Public Prosecutor according to Section 24:

• The Public Prosecutor appointed by Central Government
• The Public Prosecutor appointed by State Government
• Additional Public Prosecutor appointed by State Government.
• Special Public Prosecutor appointed by Central Government
• Special Public Prosecutor appointed by State Government.

Section 24 of Cr.P.C  talks about the appointment of Public Prosecutors in the District Court and High Court by the state government and central government respectively.

Sub-section 3 states that the Public Prosecutor needs to be appointed for each district and may also appoint Additional Public Prosecutor.

Subsection 4 states that the District Magistrate in consultation with Session judge needs to prepare a panel of names which is considered as fit for such an appointment.

Subsection 5 states that the person can’t be appointed as a Public Prosecutor or Additional Public Prosecutor by the State Government in a district unless his names are on the panel prepared under subsection 4.

Subsection 6 explains that in a  case where a state has a local cadre of prosecuting officers, but there is no suitable person in such cadre for an appointment the appointment must be made from the panel prepared under subsection 4.

Subsection 7 states that person can be appointed as Public Prosecutor only after he has been practised as an advocate for the minimum period of 7 years.

Section 25 of Cr.P.C  states that the Assistant Public Prosecutors is appointed in the district for the purpose of conducting prosecution in Magistrate Court. The court may appoint one or more Assistant Public Prosecutors for the purpose of conducting a case.

If there are no Assistant Public Prosecutors then District Magistrate may appoint any other person to act as the Assistant Public Prosecutors.

Section 321 permits the Public Prosecutor or Assistant Public Prosecutor to withdraw from the case or prosecution with the permission of the court at any time before the judgement is pronounced. The power of the prosecutor is derived from the statute itself and they must act in the interest of the administration of justice.

Judicial trend

In the case of Vineet Narain vs Union of India,

Facts– the offence involves high political dignitaries. CBI failed to investigate properly.

The court stated that there are no limitations or restrictions as to launching of prosecutor or initiation of investigations.

In the case of Jitendra Kumar @Ajju vs State (NCT OF Delhi)

The High Court of Delhi stated that “the Public Prosecutor acts on the behalf of the state. They are the ministers of justice who play a pivot role in the administration of criminal justice”.

In the case of Zahira Habibullah vs State of Gujarat,

This case is known as “Best Bakery Case”.

Facts– burning down of construction in the city of Vadodara results in the death of 14 persons This matter came up before the Supreme Court for consideration.

The Supreme Court stated the “Public Prosecutors acted more as the defence rather than focusing on presenting the truth before Court”.

In the case of Thakur Ram vs State of Bihar,

The reason behind the establishment of the office of Public Prosecutor is that no private person can use the legal apparatus to wreak private vengeance anyone.

In the case of Tikam Singh vs State & Ors,

There is no dispute related to the office of the Public Prosecutor but there is a public element attached to it. He acts as the representative of the state but not a complainant. The role of the Public Prosecutor is distinguished from the role of private counsel.

In the case of Sandeep Kumar Bafna vs State of Maharashtra & Anr,

The court stated that “a Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or other irrespective of the facts of the case. The attitude of the Public Prosecutor must be fair towards the investigating agencies and as well as towards the accused.”

In the case of Radheyshyam vs State of M.P & Ors,

The court stated that a special Public Prosecutor can be appointed when the administration of justice is required. They cannot appoint only on the request of the complainant. His remuneration is paid by the state because if it will be paid by the private party, then his ability or capacity to perform his role as a Public Prosecutor will be endangered. The government cannot appoint Special Public Prosecutor on such terms, directing him to receive his remuneration from any private individual.

In the case of Kunja Subidhi and Anr vs Emperor,

The duty of the Public Prosecutor is to place before the court all the relevant evidence whether it is in favour or against the accused and to leave upon the court to decide the matter.

Recent illustrations

In the year 2018, The Government of Delhi appointed senior lawyers, Rebecca Mammen John and Vishal Goshen as special Public Prosecutors in the murder case of Ankit Saxena Murder Case for the purpose of the rial.

In the year 2019, Arvind Kejriwal ordered for the appointment of a special Public Prosecutor in the Soumya Vishwanath’s case.

Present scenario India

There is no uniformity in the structure of the public prosecution in India. There is no boundary created between the investigating agency and the prosecution in a number of states. This affects the impartiality of Public Prosecutor since police control the prosecutions. When the prosecution is headed by a senior police officer, the boundary collapses completely.

Although the Law Commission in the year 1958 suggested the establishment of Directorate of prosecution with its own cadre, such a recommendation was not accepted in Cr.P.C. Some states have Directorate of Prosecution while others do not.  

Suggestions

• Encouraging more lawyers to become Public Prosecutors.
• Increasing the salary structure of the Public Prosecutor so that it can act as a reinforcement to more people.
• Limit the experience required to 3 years instead of 7 years.
• To establish a national institute to impart proper training upon the aspiring candidates.
• Making compulsory for all the states to create its own Directorate of Prosecutions.

Conclusion

A Public Prosecutor is an officer of the court helping in the administration of justice. It is clear from the fact that the main duty of the Public Prosecutor is to help the court in finding the facts of the case. The Public Prosecutor must be impartial, fair and honest. He must act on the directions of the judge. He should not believe in the conviction of accused by hook or crook. The guiding principles of any public prosecution must be equity, justice and good conscience.

References

1. https://shodhganga.inflibnet.ac.in/bitstream/10603/144597/8/chapter%20iv.pdf
2. https://www.latestlaws.com/articles/role-of-public-prosecutor-in-magisterial-courts-by-rakesh-kumar-singh/

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This article is written by Khushi Agrawal, a student of Symbiosis Law School, Noida. In this article, she has discussed the concepts of rights of the Pawnee on default by the Pawnor in detail.

Introduction

Pursuant to Section 172 of the Indian Contract Act, 1872, a Pledge is a contract where a person deposits an item or good with a lender of money as security for repayment of a loan or performance of a promise. Pledge is also known as a peon. The depositor or bailor is the Pawnor and the bailee or the depository is the Pawnee. The Pawnee is under the duty to take reasonable care of the goods pledged to him.

Rights of the Pawnee on default by the Pawnor

The rights of Pawnee where Pawnor makes default is given under Section 176 of the Indian Contract Act, 1872.

If the Pawnor fails to pay the debt or fulfil the promise at the specified time:

• the Pawnee may bring a suit against the Pawnor on debt or promise;
• retention of the pledged goods as collateral security;
• may sell the pledged goods by giving reasonable notice of sale to Pawnor. If the proceeds of the sale are less than the amount of the debt or promise, the Pawnee is entitled to claim the balance from the Pawnor, if the proceeds are greater, the surplus belongs to the Pawnor.

The rights to retain or sell the pawn are not concurrent, but the rights to sue and sell are concurrent rights, i.e. he may sue and retain the goods as collateral security or sell them after notice has been given. Using the word or in relation to two or more alternatives does not necessarily imply mutual exclusion. It depends on the ascertainable intention of the provision as a whole.

Once the Pawnee, after having given reasonable notice to the Pawnor of his intention to sell the pawned goods, sells them in pursuant to Section 176 of the Contract Act, the right of redemption of the Pawnor shall be extinguished, but his right of redemption shall continue until the sale, i.e. at any time until the Pawnee exercises his power of sale by entering into a valid contract of sale.

In the case of the pledge where the borrower had died, it was held that the bank was not entitled by the heirs to pay the loan and interest and could not insist that the letter of administration should be issued in its favour as a condition for the return of the ornaments.

Default by Pawnor

A pledgee is not entitled to sell the goods pledged to him before the amount of the loans becomes due. Section 176 and 177 also apply to cases where no time is stipulated for payment of the debt for which goods have been pledged as security. Where no time is originally stipulated for payment, the debtor is not in fault until notice is given by the creditors that he requires payment on a certain day, and that day is past. The debtor is then in default and is in the same position as if a day for repayment had been fixed in the original contract.

In a contract of pledge, goods were required to be insured by the borrower. Bank was also given the liberty to get insurance at risk and expenses of borrower. The goods were destroyed due to fire. The borrower took no insurance policy and claimed that he was not liable since the bank failed to get the goods insured. It was held that provision regarding getting insurance by the bank was only enabling provision for the benefit of the bank, and it could not be used by the borrower for denying his own liability.

Right to sue

This enables the Pawnee to institute a suit independently of the pawn. The power conferred upon the Pawnee under this section to sell the property without reference to the court does not take away his right to sue the Pawnor on the debt or bring a suit for the sale of the property pledged to him. The Pawnee can sue on the debt, retaining the pledged goods as collateral security, even without first selling the goods pledged. If the debt is paid, the goods have to be delivered, and if sold, the Pawnee can appropriate the sale proceeds towards the debt. He cannot retain the goods pledged and also sue for his debt. The right to sue on the debt assumes that he is in position to deliver the goods on payment of the debt and, therefore, if he has put himself in a position where he is not able to redeliver the goods he cannot obtain a decree. He cannot have both the payment of the debt, and also the goods.

Any suit by a Pawnee for a declaration of his right to sell the article pledged for the satisfaction of his claim is one to enforce his charge upon the said article.

A bank chose to seek a simple money decree without seeking to enforce the security of goods hypothecated to it. It was held that the bank would be deemed to have waived its right as hypothecate.

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Notice before suit

The section does not contemplate any notice before the institution of the suit. A suit for the debt due can be brought through notice is not given. The Pawnee can also bring a suit to sell the goods pledged. However, a suit to recover the debt by sale of pledged articles must be preceded by notice.

Right of sale

On the debtor’s default, the Pawnee has the right to sell the goods pledged for debt repayment or promise performance. He may sell the goods by private sale. He must give reasonable notice to the Pawnor before selling the goods.

The power of sale is granted to the Pawnee and can be exercised at his discretion. Merely because the Pawnee gave a notice that he would sell the goods, cannot compel that Pawnee to effect the sale. The Pawnor has no right to call upon the Pawnee to sell the goods pledged except as provided in Sections 161 and 176 and if the Pawnee does not exercise that discretion, the Pawnee cannot be blamed. If fixed deposit receipts are taken as collateral security for repayment of a loan, it is not obligatory on the bank to adjust the instalment due every month from this security.

A pledge cannot compel the pledge to exercise the power of sale as a means of discharging or fulfilling the decree. His only rights are the following:

• In the event that the pledgee exercises the power to insist that it be done honestly and properly and that the sale proceeds be applied to the debt;

• In the event that the pledgee does not exercise the power to redeem the pledge on payment of the debtor so much of it as otherwise remains unpaid;
• and in the event that the sale is improperly exercised, damages are caused by it.

However, if the pledgee agrees to sell part of the pledged goods, he cannot then raise a plea for the right of lien and he is bound to sell the property within a reasonable time. In Vimal Chandra Grover v Bank of India, the pledgor asked the pledgee bank to sell the pledged shares at the prevailing price of Rs 2400 per share. The pledgor, quite wrongly, indicated that the share was at the head office of the bank. The bank took nine months to locate the shares and to sell them, at which time the price of the shares had fallen to Rs 700 per share. Observing that it was for the bank to locate where the pledged shares are kept, the supreme court upheld the claim of the pledgor for this loss.

Right of sale by Hypothecation

A hypothecate has the right of private sale and he can take possession and proceed to sell the hypothecated property without the intervention of the court, on default by the debtor, or on a breach by the debtor of any condition of the agreement, but only if the hypothecate has that power under the hypothecation agreement. If he fails to take possession of the hypothecated property on his own or to enforce it as security in a suit, the right of private sale stands waived, and he would rank like others as a secured creditor.

Notice before sale

If the Pawnee wants to sell articles, without the intervention of the court, he can do so, only after issuing a notice of sale to the Pawnor. The word sale in Section 176 means intended sale and not a sale actually arranged on a particular date. However, no fresh notice is necessary for an adjourned sale nor is it necessary to make the debt due recoverable. It is only necessary to make the debt due recoverable; it is only necessary before goods are sold.

This section is mandatory and the required notice must be given. The requirement cannot be waived at the of making the contract of a pledge and supersedes any contract to the contrary. An agreement authorizing the Pawnee to sell the goods pawned, without notice, is void under Section 23 of the Contract Act.

Requisites of a valid notice

This notice must be clear and specific in its language and must indicate the Pawnee’s intention to dispose of the security. It can’t be implied. The notice must be reasonable and not vague under this section. The debt for which the pledged goods are being sold must be mentioned. Thus, a notice stating failure to arrange for the sale of hypothecated stock is merely an intimation that arrangements would be made for sale, not notice for sale. However, a notice, that in case of default the Pawnee would send its representative to the place where goods were pledged, to sell them at market price, was a notice of actual sale, not just an intimation of arrangement.

A notice is not valid if it does not specify the amount payable. It is not vague and ineffective, nor is it unreasonable because it gave six days’ period in which to pay when repeated demands had previously been made and the sale was seven months later, nor is it invalid where it makes a demand for payment of the amount for which the goods are pledged, and also refers to and demands payment of another debt.

Reasonable notice

Since the word sale in the section refers to the intended sale, and not as arranged on a particular date, reasonable notice, therefore, it does not require a date, time and place specification. The law stipulates that the Pawnee should give Pawnor a reasonable time to exercise his right of redemption and proceed to sell if the property is not redeemed. A Pawnee’s notice to the Pawnor that unless the Pawnee redeems the pledged items within a fortnight, the Pawnee will sell them is a good notice, although the Pawnee may not sell the goods until a few days after the fortnight’s expiration. Reasonable notice was held to have been given where on 11th August, notice was given for payment of money by 18th August, failing which the pledged shares would be sold without further reference to the debtor, and shares were sold on 20th August. A Pawnee entitled to sell is not bound to sell within a reasonable time after the expiry of the period mentioned in the notice. He is entitled to choose his own time to sell after he has given notice of the sale.

Effect of Sale without Notice

Sale without notice is invalid and cannot be upheld. Such a sale would amount to conversion giving rise to damages to be assessed at the market rate on the date of conversion, i.e. at the date of sale. Sale without notice is void, and a vendee without notice of the pledgee, takes only the limited rights or interest of the Pawnee, in other words, he steps into the shoes of the Pawnee.

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This article is written by Khushi Agrawal, a student of Symbiosis Law School, Noida. In this article, she has discussed the concepts of types of damages under Section 73 of the Indian Contract Act, 1872 in detail.

Introduction

Section 73 provides compensation for loss or damage caused by the breach of contract. When a contract has been broken, the party that suffers from such infringement is entitled to receive compensation for any loss or damage resulting from such infringement. Such compensation shall not be given for any remote and indirect loss or damage sustained as a result of the breach.

Compensation for failure to discharge obligations similar to those created by the contract.

If an obligation similar to what was created in the contract has not been discharged, any person who fails to discharge is entitled to receive the same compensation from the party in default as if that person had contracted to discharge it and had broken his contract.

Explanation

In estimating the loss or damage resulting from the breach of a contract, consideration must be given to the means that existed to remedy the inconvenience caused by the non-performance of the contract.

Illustration

‘A’ contract to repair B’s house in a certain way and receive the money in advance. ‘A’ repairs house, but not according to the contract. ‘B’ is entitled to recover the cost of making the repairs conform to the contract from ‘A’.

‘X’, the owner of a boat, contracts with ‘Y’ to take a cargo of jute to Mirzapur for sale at that place, starting on a given day. The boat does not start at the appointed time because of some unavoidable cause, whereby the arrival of the cargo at Mirzapur is delayed beyond the time it would have arrived if the boat had sailed under the contract. After that date, the price of jute falls and before the cargo arrives. The measure of the compensation payable to ‘Y’ by ‘X’ is the difference between the price ‘B’ could have obtained for the Mirzapur cargo at the time it was delivered in due course and its market price at the time it actually arrived.

What are the different types of damages?

General and Special Damages

Difference between general and special damages are:

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Nominal Damages

If the defendant is found liable for breach of contract, the plaintiff is entitled to nominal damages even if no actual damage is proven. Nominal damages are awarded if there is an infringement of a legal right and if it does not give the rise to any real damages, it gives the right to a verdict because of the infringement.

In the following circumstances, nominal damages are awarded to the plaintiff:

• The defendant committed a technical breach and the plaintiff himself did not intend to execute the contract;

• The complainant fails to prove the loss he may have suffered as a result of the contract breach;

• He has suffered actual damage, not because of the defendant’s wrongful act, but because of the complainants’ own conduct or from an outside event;

• The complainant may seek to establish the infringement of his legal rights without being concerned about the actual loss. Where there is no basis for determining the amount. The view that nominal damage does not connote a trifling amount is erroneous; nominal damage means a small sum of money. Nominal damages have been defined as a sum of money that can be spoken of, but which does not exist in terms of quantity.

Where the loss is small and quantifiable, the damages awarded, although small, are not nominal damages.

If the market rate on the date of the breach is not proven, the plaintiff shall be entitled to nominal damages. However, the fact that the buyer does not sustain any actual loss as a result of the seller’s failure to deliver the goods is no reason to award the buyer nominal damage.

Substantial Damages

In cases where an offense is proven, many authorities may claim substantial damages even if it is not only difficult but also impossible to calculate the damages with certainty or accuracy. In all these cases, however, the extent of the breach has been established. There was a complete failure to perform the contract on one side. However, where the breach is partial and the extent of the failure is determined, only nominal damage is awarded. The plaintiff who can not show that after the breach he would have had the contract performed, he is in a worse financial position, usually, recover only nominal damages for breach of contract.

Where a defendant refuses to accept goods sold or manufactured for him, the plaintiff sells them to a third party on the same terms as the defendant agreed and makes a similar profit, the plaintiff shall be entitled to nominal damages if the demand exceeds the supply of similar goods; but if the supply exceeds the demand, the plaintiff shall be entitled to recover his loss of profit on the defendant’s contract.

Aggravated and Exemplary Damages

In certain circumstances, by taking into account the motives or behavior of the defendant, the court may award more than the normal measure of damages. Such damage may be:

Where the motives, conduct or manner of inflicting the injury on the defendant may have aggravated the damage to the plaintiff by injuring his proper feelings of dignity and pride, the damages awarded to compensate the plaintiff would be aggravated. These are awarded in tort, but not in a contract because the motives and conduct of the defendant are not to be taken into account when assessing damages and it is not to be awarded in respect of feelings of disappointment or injury; they are too remote. Thus, if an employee is wrongly dismissed from his job, the damages payable to him will not include compensation for the manner in which he is dismissed, for his injured feelings, or for the loss that he may suffer from the fact that the dismissal of himself makes it more difficult for him to obtain fresh employment.

Liquidated and Unliquidated Damages

Damages are said to be liquidated once agreed and fixed by the parties. It is the sum agreed by the parties by contract as payable on the default of one of them, Section 74 applies to such damages. In all other cases, the court quantifies or assesses the damage or loss; such damages are unliquidated. The parties may only fix an amount as liquidated damages for specific types of a breach, then the party suffering from another type breach may sue for unliquidated damages resulting from such breach.

Where, under the terms of the contract, the purchaser was entitled to claim damages at the agreed rate if the goods were not delivered before the fixed date and if they were not delivered within seven days of the fixed date, the purchaser was entitled to cancel the contract and pay guarantee amount to the bank, but the goods were delivered within the extended period. It was held that the buyer was only entitled to claim damages at the agreed rate and that the banking guarantee confiscation clause could not be invoked as the contract was not cancelled.

What does loss or damage mean?

The word loss or damage means:

• Harm to persons through physical injury, disabilities, loss of enjoyment, loss of comfort, inconvenience or disappointment, injured feelings, vexation, mental distress, loss of reputation.
• Harm to property, viz. damage or destruction of property; and
• Injury to an economic position which is the amount by which the plaintiff is worse off than he would have been performed, and would include loss of profits, expenses incurred, costs, damages paid to third parties, etc.  

Consequential Damage and Incidental Loss

Consequential damage or loss usually refers to pecuniary loss resulting from physical damage, such as loss of profit sustained due to fire damage in a factory. When used in the exemption clause in a contract, consequential damages refer to damages that can only be recovered under the second head in Hadley v Baxendale, i.e. the second branch of the section, and may also include recovery of profit and losses under the first branch.

Another term incidental loss refers to the loss incurred by the complainant after he became aware of the breach and made to avoid the loss, i.e. the cost of buying or hitting a replacement or returning defective goods.

How to measure the damage caused?

The measure of damage or measure of damages is concerned with the legal principles governing recoverability; the principle of the remoteness of damage confines the recoverability of damages. Questions of quantum of damages are only concerned with the amount of damages to be awarded and are, therefore, different from the measure of damages; the latter involves consideration of the law.

What does the remoteness of damages mean?

The term remoteness of damages refers to the legal test used to determine which type of loss caused by contract breach can be compensated by awarding damages. It has been distinguished from the term measure of damages or quantification which refers to the method of assessing the money the compensation for a particular consequence or loss which has been held to be not too remote.

How to test the remoteness?

In deciding whether the claimed damages are too remote, the test is whether the damage is such that it must have been considered by the parties as a possible result of the breach. If it is, then it can not be considered too remote. The damage shall be assessed on the basis of the natural and probable consequences of the breach. Actual knowledge must be demonstrated that mere impudence and carelessness is not knowledge.

The defendant is only liable for reasonably foreseeable losses- those who would have reason to foresee the likelihood of future infringement if a normally prudent person in his place had this information when contracting.

The remoteness of damage is a matter of fact, and the only guidance that the law can give is to lay down general principles.

The principle governing the remoteness of damages was elaborated in the landmark case of Hadley v. Baxendale. The rules stated in this case were that a party injured by a breach of contract could recover only those damages which were either to be considered “reasonably as arising naturally, i.e., according to the usual course of things” from the breach, or could reasonably have been considered by both parties at the time they entered into the contract as the likely result of the breach. This is the basis for understanding special damages. In this case, the Court acknowledged that the defendant’s failure to send the crankshaft for repair was the only cause for the plaintiffs’ mill to stop, resulting in loss of profits.

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