This article is written by Ashpreet Kaur, IInd year student, B.B.A. LL.B, Symbiosis Law School, NOIDA. In this article, the author discusses discrepancies in the Hindu Minority and Guardianship Act and how it is affecting our society.

Introduction and meaning

In the Hindu Dharamshastras, not much has been said about the guardianship. This was due to the concept of joint families where a child without parents is taken care of by the head of the joint family. Thus no specific laws were required regarding the guardianship. In modern times the concept of guardianship has changed from the paternal power to the idea of protection and the Hindu Minority and Guardianship Act, 1956 codifies the laws regarding minority and guardianship with the welfare of the child at the core.

Under the Hindu Minority and Guardianship Act, 1956 a person who is a minor i.e. below the age of Eighteen years is incapable of taking care of himself or of handling his affairs and thus requires help, support and protection. Then, under such a situation a guardian has been appointed for the care of his body and his property.

In 1956 as a part of Hindu Code Bills, the Hindu Minority and Guardianship Act along with Hindu Marriage Act, Hindu Succession Act and Hindu Adoption and Maintenance Act were established under the leadership of Jawaharlal Nehru in order to modernize prevalent scenario of Hindu legal tradition. The Hindu Minority and Guardianship Act was established to empower the Guardians and Wards Act of 1890 and provide better right and protection to children instead of acting as a replacement of already prevalent act.

This act was passed with a motive of defining rights, obligations, relationships between adults and minors. Not only Hindus are covered under this act but also Lingayat, Virashiva, Brahmo followers, Parthana Samaj followers, Arya Samaj followers, Buddhist, Sikhs and Jains. In other words, Muslims, Christians, Parsis and Jewish are not covered under this act.

Minority of a particular person is defined according to the age of that person. Attainment age for being a major varies according to religion and time, for instance, in old Hindu law age of 15 or 16 years was the age of majority but now it has been increased to 18 years, for Muslims, age of puberty is considered as the age of majority.

Both legitimate and illegitimate minors who have at least one parent that meets the stipulations outlined above fall under the jurisdiction of this Act. Irrespective of personal laws followed by individual communities a common act majority is known as Indian Majority Act, 1875 applies to all communities.

Under this act attainment of age of majority is 18 years but if a person is under the care of guardian attainment of age of majority increases to 21 years. The Guardians and Wards Act, 1890 applies to everyone irrespective of their caste, creed or community unlike Hindu Minority and guardianship act which applies to Hindus and religion considered as Hindus only.

Jurisprudential Aspect And Evolution

Be it noted that the Hindu Minority and Guardianship Act of 1956 has been engrafted on the statute book by way of an amendment and codification of certain parts of the law relating to minority and guardianship among Hindus. It is not out of place to mention also that Hindu law being one of the oldest known system of jurisprudence has shown no signs of decrepitude and it has its values and importance even today.

But the lawmakers, however, thought it prudent to codify certain parts of the law in order to give a fruitful meaning and statutory sanction to the prevailing concept of law having due regard to the social and economic changes in the society. It is on this perspective however certain aspects of the law as it stood prior to the codification ought to be noted.

Incidentally, the law relating to minority and guardianship amongst Hindus is to be found not only in the old Hindu law as laid down by the smritis, shrutis and the commentaries as recognised by the Courts of law but also statutes applicable amongst others to Hindus, to wit, Guardian and Wards Act of 1890 and Indian Majority Act of 1875.

Be it further noted that the Act of 1956 does not as a matter of fact in any way run counter to the earlier statutes in the subject but they are supplemental to each other as reflected in Section 2 of the Act of 1956 itself which provides that the Act shall be in addition to and not in derogation of the Acts as noticed above.

Before proceeding further, however, on the provisions of the Act in its true perspective, it is convenient to note that lately, the Indian Courts following the rule of equality as administered in England have refused to give effect to the inflexible application of the paternal right of minor children. In equity, a discretionary power has been exercised to control the father’s or guardian’s legal rights of custody, where the exercise of such right cannot but be termed to be capricious or whimsical in nature or would materially interfere with the happiness and the welfare of the child.

The statute therefore on a plain reading with literal meaning being ascribed to the words used, depicts that the mother’s right to act as a natural guardian stands suspended during the lifetime of the father and it is only in the event of death of the father, the mother obtains such a right to act as a natural guardian of a Hindu minor. It is this interpretation which has been ascribed to be having a gender bias and thus opposed to the constitutional provision.

It has been contended that the classification is based on marital status depriving a mother’s guardianship of a child during the lifetime of the father which also cannot but be stated to be a prohibited marker under Article 15 of the Constitution. The whole tenor of the Act of 1956 is to protect the welfare of the child and as such interpretation ought to be in consonance with the legislative intent in engrafting the statute on the Statute Book and not de hors the same and it is on this perspective that the word `after’ appearing in section 6A shall have to be interpreted.

It is now settled law that a narrow pedantic interpretation running counter to the constitutional mandate ought always to be avoided unless of course, the same makes a violent departure from the Legislative intent in the event of which a wider debate may be had having due reference to the contextual facts.

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Law Commission Report

Accordingly, this report of the Law Commission reviews the current laws dealing with custody and guardianship and recommends legislative amendments to the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956. These amendments are necessary in order to bring these laws in tune with modern social considerations.

Major amendments are recommended to the Guardians and Wards Act, 1890, by introducing a new chapter on custody and visitation arrangements. The Commission believes that the Guardians and Wards Act, 1890, being a secular law, will be relevant for all custody proceedings, besides any personal laws that may apply.

The new chapter opens with a set of objectives, to clarify that the welfare of the child is the primary guiding factor in all such matters. For the first time in India, the amendments also introduce several concepts relating to joint custody and child welfare, such as child support, mediation processes, parenting plans, and grand-parenting time.

The commission has suggested the following amendments in Hindu Minority and Guardianship Act-

It analyses Section 6 (a) of the Act, which lists the natural guardians of a Hindu minor in respect of the minor’s person and property. In the case of a boy or an unmarried girl, this section clearly states that the natural guardian of a Hindu minor is the father and after him the mother. The Commission notes that even after the Supreme Court’s judgment in Gita Hariharan v Reserve Bank of India, the mother can become a natural guardian during the lifetime of the father only in exceptional circumstances.

The report says that this is required to change “to fulfil the principles of equality enshrined in Article 14 of the Constitution.” Accordingly, the Law Commission recommended that this superiority of one parent over the other should be removed and that both the mother and the father should be regarded, simultaneously, as the natural guardians of a minor. The welfare of the minor must be the paramount consideration in every circumstance.

It has recommended changes to Section 7 as well. This section provides that the natural guardianship of an adopted son who is a minor passes, on adoption, to the adoptive father and after him to the adoptive mother. The language of this section is incongruous in that it refers only to the natural guardianship of an adopted son, and does not refer to an adopted daughter.

The Hindu Minority and Guardianship Act, 1956 came into force at a time when the general Hindu law as administered by the courts did not recognise the adoption of a daughter. Thus, at the time of passing of the Act, the adoption of daughters was only allowed under custom and not under codified law. It was also enacted before the Hindu Adoptions and Maintenance Act, 1956, which corrected the legal position of adoption of a daughter statutorily.

It hence recommends that now the Act should include both an adopted son and an adopted daughter within the scope of natural guardianship. Further, the Commission recommended that the natural guardians of an adopted child should include both the adoptive parents, in keeping with its recommendations to Section 6(a) provided above.

Critical analysis of Hindu Minority and Guardianship Act

According to section 7 of Hindu minority and guardianship act, the natural guardianship of an adopted son who is a minor passes, on adoption, to the adoptive father and after him to the adoptive mother. This provides natural guardianship in case of adoption only for son because of the traditional notion that adoption is meant for couples who do not have a son. Hindu Minority and Guardianship Act is, for now, silent on this issue. Over the time as the society has developed many legal measures are taken for empowerment of females as a gender and sex ratio but this legal lacuna has not been fixed due to the deeply enrooted preference of son over a daughter.

Conflicting law

The law commission of India in its 2015 report has highlighted the gender anomalies prevalent in the society which have affected the gender ratio and discrimination and why there is a need of women empowerment. Shortly after the Hindu Minority and Guardianship Act was enacted, the Hindu Adoption and Maintenance Act of 1956 was also enacted which had recognized the adoption of daughters. This difference of opinion and policy happened because Hindu Minority and Guardianship Act was Act No 32 of 1956 and Hindu Adoption and Maintenance Act was Act No 78 of 1956 it would appear that the Nehru government’s gender consciousness had evolved a great deal in the span of a few months.

The law commission’s report states that Hindu Minority and Guardianship Act was passed by the parliament when the adoption of daughters was not recognized under Hindu law and Hindu Adoption and Maintenance Act nevertheless the position of daughters were improved statutorily, but the conflict between these two laws remained unsolved. In order to resolve this conflict, The Law Commission of India recommended amending section 7 of Hindu Minority and Guardianship Act.  

Father’s First

Commission has also recommended on another outdated provision of Hindu Minority and Guardianship Act, section 6, this section deals with natural guardianship of a child and its property. According to this section, the first natural guardian is the father and then after him, the mother is the natural guardian of a child. This means that as long as the father is alive mother cannot claim the status of a natural guardian.

Our patriarchal society is so prevalent that our laws reflect its hint. Law commission found out that the issue of natural guardianship is not that small that it should be ignored and the influence of patriarchy is so strong that it is suppressing the rights of a mother.

The Law Commission could see Section 6 for what it was only when it returned to the subject in 1989 with the express intent of removing “discrimination against women in matters relating to guardianship and custody of minor children”. Complying with the object The Law Commission recommended the amendment of section 6 so that mother and father can have equal rights of being a natural guardian and enjoy guardianship jointly and severally.

This matter came into limelight in the year 1999 when the supreme court ruled on a petition filed by Geeta Hariharan for challenging the validity of the stipulation that only father can be first natural guardian after him, the mother is considered as natural guardian. Even though it did not amend any part of section 6 but the supreme court interpreted in such a way that its severity should be mitigated. Supreme court interpreted the word ‘after’ in section 6 which originally meant that “after the death of the father” but now it is ”in the absence of the father”. Herein, absence means that father was away for a long duration or inconsiderate towards the child or unfit due to illness.

Therefore, the Apex court had delivered the judgements where the father is always preferred in case of natural guardianship but in extraordinary circumstances mother is considered as natural guardian. This was seen in case of Gita Hariharan famous writer when she wanted to invest some money for her son but stipulations required her to mention details of the father but she was separated and sole guardian of her son. The principle of equity was challenged here and this unresolved issue of guardianship was mitigated to some extent in 2010 by parliament.

When parliament amended section 19 of Guardians and Wards Act, 1890. This section had barred the court from appointing a guardian for a minor whose father was alive and was not unfit to assume that responsibility. The 2010 amendment applies this clause to cases where even the mother is alive, thus removing the preferential position of the father under GWA which is applicable to all communities.

Sharing Custody

The law commission of India in its report of the year 2015 has restated that section 6 of Hindu minority and guardianship act should be amended stating that if one law has removed such discrepancy then other should also accept that implement the same. This report has also highlighted the related issues related to custody of a child and status of mother and father in that custody and have proposed that for giving equal rights to father and mother with regards to guardianship the commission has suggested joint custody of the child.

For easing out the concept of joint custody commission had also laid down certain guidelines for the same so that minor’s welfare is not compromised. Keeping in mind this same principle our laws relating to guardianship, custody and adoption should be updated.

Position of Unwed mothers for sole guardianship

A glimpse of patriarchal society can be seen from our Hindu Minority and Guardianship Act where the first natural guardian of a child for both property and person is father and second is a mother. But as society is modernizing, its laws have to change accordingly so that people a change and develop, the apex court had understood this proposition very well. Consequently, in recent judgements supreme court allowed an unwed mother to apply for sole guardianship of minor children.

In case of Ms. Githa Hariharan & Anr vs Reserve Bank Of India & Anr (AIR 1999, 2 SCC 228), an educated and employed mother wants to make her five-year-old child nominee for her investments but asked for the paperwork in which she was either required to provide the name of the father or guardianship certificate. The district court rejected her claim because under section 11 of the Guardians and Wards Act, 1890 she needs to disclose the information of the father of that child which she was not willing to do.

When this case was transferred to the high court, they gave the reasoning for upholding this judgement that even if the mother is unmarried, father of that child could have an interest in the child. But the supreme court bench headed by Justice Vikramjit Sen overturn this judgement by laying down two fundamental rules; first interests of the child are supreme and in the pursuance of that a mother can be considered as guardian; second on the ground of privacy woman has a fundamental right to conceal the father’s identity.

The ruling of this case had at least given a ray of hope to women who have fought for the equal rights in guardianship, which will ease out their daily life from From school admission and bank account opening forms to investment papers, official documentation insists on the father’s name. Gita Hariharan case where she applead to the supreme court when she was not able to make an investment for her son as his guardian because of the fact that it requires stipulation that father’s information should be mentioned. In this case, the couple was separated and the mother was the guardian of the child.

The court of law held that both parents will be treated on equal footing for the purpose of guardianship and the word ‘after’ in Hindu minority and guardianship act should not render the mother’s position secondary. But the father’s information is still required by many private and public institutions.

This new ruling had benefitted the society in two ways, firstly protection of rights of a child born out of wedlock and secondly provided a legal status to single mother especially for the children of sex workers. This judgement will at least do some good and safeguard the rights of unwed mothers or illegitimate child which Guardianship act had mentioned but society had still not accepted.

Implications of the ruling-

• After this ruling mother of the child got equal rights in case of guardianship.
• Interpretation of the word ‘after’ has been changed from ‘after the death of husband’ to ‘in the absence of husband’ so now the secondary position of the mother is changed to equal.
• This ruling will be beneficial to some extent fro child born out of wedlock or progenies of commercial sex workers.
• This landmark judgement will also encourage adoption by single, independent women in India

Conclusion

India is a country where people tend to believe that children are exemplar of god. But every ideology, every belief, and every tradition has two sides one is good and another one is bad. While goods side being, a child raised in India is being pampered, taken care of and provided with healthy environment to grow.

On the contrary, bad side being, there are more than 60,000 children who abandoned every year in India. In most of the cases, these children are pushed into a vicious cycle of forced labour, human trafficking or prostitution. In order to save the lives of these children and mitigate the harm they have suffered, a child is gifted with a second life through adoption. In its simplest of senses, adoption is a process whereby a person assumes the parenting for another and, in doing so, permanently transfers all rights and responsibilities, along with filiation, from the biological parent or parents. So, to freely promote adoption for a noble cause of saving lives of children or tackling the issue of guardianship of one’s own child our prevalent law needs some reform and amendment.

Now take a look at gender discrimination and gender gap, the concept of treating natural born child and adopted child on same footing is followed by Hindu law in India. Reason being traditional, spiritual and material being of the family can be maintained only because of a son. But most importantly for the ‘moksh prapti’ of the parents when they die having a son is quintessential.

Not only this a hint of patriarchy can be seen in laws stated above where father is first natural guardian and mother is considered a first guardian only in the absence of the father. But nowadays when women are being empowered and society is developing rapidly these age-old laws needs an amendment in order to cope up with the changing environment or otherwise in future cases of guardianship of one’s own child will be pilled up in our courts.

References

1. n.d. “constitution of India.” universal.
2. diwan, paras. 2015. family law. lexis nexis.
3. gandhi, dharam vir. n.d. “THE HINDU MINORITY AND GUARDIANSHIP (AMENDMENT) BILL, 2016.”
4. 1956. “Hindu minority and guardianship act.” universal.
5. india, Law commission of. 2015. “reforms in custody and guardianship law in india.”
6. kusum. n.d. family law lectures. lexis nexis.
7. kusum. n.d. “gender Bias in Adoption Law: A Comment On Malti Roy Choudhury v. Sudhindranath Majumdar.” journal of Indian law institute.
8. maurya, r r. n.d. hindu law.
9. mittal, pawan. n.d. “legal aspects of legitemacy in India.”
10. singh, shubash chandra. n.d. “Adoption Law in India: Need for a Fresh Look.”
11. n.d. universal declaration of human rights.

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This article is written by Lakshay Kumar, a second-year B.A.LLB student of Delhi Metropolitan Education, Indraprastha University. In this article, he talks about the evolution of common law and its expansion to Asia, especially to India.

What is Common Law

Common law is the body of customary laws based on the judicial decisions and is embodied in the already decided cases which are administered in the common law courts of England since the middle ages. Common law emphasizes the centrality of the judges in the development of law. Common law generally contains the rules and other doctrines gradually developed by the judges of the English courts as the foundation of their decision and added over time by judges of that various jurisdiction the authority of the accumulating doctrine.

Origin of common law

The English common law originated in the early middle ages in the King’s court. It did not have substantive rights but it consisted of procedural remedies. Until the 19th century, the English common law continued to be developed primarily by the judges rather than the legislature. The common law of England was largely created in the period after the Norman Conquest of 1606. Body of rules was created in northern Europe and local customs governed most matters.

Church played a large part in the government, crimes were treated as wrongs for which compensation was provided for the victims. Serious wrongs were regarded as public crimes rather than personal matters, and the perpetrators were punished by death. An important development took place in the growth of common law during the Henry II reign. Royal officials roamed around the country, inquiring about the administration of justice, the church and the state were separated and had their own laws and courts. All these developments led to the growth and emergence of a body of rules based on local conditions.

Basic Principles of Common Law

Common law Adjudication

In common law jurisdictions, several stages of research and analysis are required to determine what the law is, first one must ascertain the facts, then one must locate the appropriate statutes and cases, then one must extract the principles, analogies, and statements by various courts of what they consider regarding the facts of the present case, after looking into all these factors it is determined what the law is.

Interaction between common law and statutes

In common law legal systems, the common law is crucial to understanding almost all important areas of law. In States like the United Kingdom, Wales, and England the basic law regarding torts, contracts, and property do not exist in statute but it does in common law although with some variations.

Common law as the foundation of commercial economics

The reliance on judicial opinion is a strength of common law system and is a significant contributor to the robust commercial systems in the United States and the United Kingdom because there is common law to give reasonably precise guidance on almost every issue, parties can predict whether the proposed course of action is lawful or unlawful.

Advantage and Disadvantage of Common Law

Advantages

1. The most important advantage of a common law system is that there is a certainty, it is highly possible that cases of a similar nature if confronted in the future, would be decided in the same manner as they are decided in the present.
2. In the 19th-century common law courts were combined with equity courts by doing defects in the common law system were also reduced. Equity was not a complete system of law but it was present to cover the defects  in the common law.
3. In common law system judgments are given on the basis of previously decided cases which means that the decision which pronounced is more efficient.
4. The common law system is based upon precedents which means that laws applied in common law system the judge made judges are considered to be the lawgivers so it seems appropriate that those who have the knowledge about laws should make and decide which law is to be applied in which case.

Disadvantage

1. One disadvantage of the common law system is that if the judgment given in the past is erroneous or wrong it will set a wrong precedent for the judges to decide the future cases.
2. Sometimes strict application of common law may not render justice as it does not take into account the concept of equity.
3. the law system is based upon precedent,  it is not necessary that for every case there is a  decided case with similar facts or similar situation, in that case, it is difficult to apply common law.
4. Common law is not flexible therefore the law cannot be changed according to the changing needs of the society.

Evolution of common law(11th Century-20th Century)

11th Century Common Law

Before the institutional stability was imposed on England in 1066, English residents, like those of many other societies were governed by unwritten local customs that varied from community to community and were generally enforced in an arbitrary fashion. For example, courts consisted of informal public assemblies that weighed conflicting claims in a case, if they were unable to reach a conclusion, then the accused had to go through a test which determined the guilt or innocence of the accused. The test generally involved either carrying a red hot iron or snatching a stone from the cauldron of boiling water.

12th Century Common Law

In 1154, Henry II became the first Plantagenet king, Henry II institutionalized common law by creating a unified system of law common to the country by elevating the local customs to the national, ending local control and peculiarities. He reinstated the jury system of citizens sworn on oath to investigate reliable criminal accusations and civil claims.

Concept of stare decisis

Henry II introduced the concept of stare decisis. Stare decisis literally means let the decision stand, under this concept if there is an already decided case similar to the present case then the judgment has to be given according to the decided case. This principle replaced the inconsistent local traditions and laws with reliable and consistent laws that were applicable to the region.

15th-century common law

During this time the concept of equity was established. Under the doctrine of equity if any person felt that some injustice has happened to him he can make an appeal in the court of chancery administered by the lord chancellor. For example, if anyone felt that the damages awarded to him through common law were insufficient then he could approach the court of equity and seek redressal.

19th-century common law

During the 19th century, the common law courts were combined with equity courts, and equity courts were superior in case there was some conflict between them.

20th-century common law

In the 20th century, some changes were made in the common law system in the united states under which different systems were established to resolve the dispute and to award compensation. The system provided relief in the form of money damages while the second system worked as a court of equity.

Countries that got influenced by the common law system

The common law constitutes the basis of the legal system of England, Wales, Northern Ireland and the United States of America Among the various Asian countries which were influenced by the common law system are India, Pakistan, Sri Lanka, Hong Kong, Malaysia, etc.

Evolution of common law system in India

1. The application of common law in India was mainly done during the colonial period, to be precise during the rule. When the Britishers came to they brought with themselves their own system of governance as well as laws.
2. Initially, the Britishers limited their influence to the personal laws of the Hindus and the Muslims and allowed the rest of the cases to be dealt with by the local laws, especially the criminal cases.
3. All the criminal cases were judged by the native Muslim law until lord became the governor general and abolished the authority of the native Muslim leaders to decide the criminal cases, this was done because the native law suffered from many defects and the people did not have any faith in them.
4. It was during the British rule that the concept of justice, equity, and good conscience was introduced, under this doctrine if there was no specific statutory law pertaining to the present  case or if the Hindu and the Muslim personal law was also quite , then the judgment was supposed to be given by applying the doctrine of justice, equity and good conscience.
5. It literally meant what the judge considered in the particular case and gave accordingly. The application of common law in India evolved during the 19th century when certain laws were codified and proper courts were established under the charter of 1861. Before the 19th century, there was the supreme court which was established and also applied the laws of England as far as applicable to the Indian condition.
6. Later in the 20th century when the Federal court was established it also applied the laws of England although by that time many of the laws were codified like Indian Penal Code 1862, Civil Procedure Code, 1908 but before independence common law was the major source of framing laws in India.
7. After Independence although the Britishers left India but they left behind themselves the laws and it is normal that if a country that ruled over another country for almost 200 years, the ruled country would be affected by its laws and the same happened with India, the Constitution of India is sometimes said to be a replica of Govt of India Act, 1935.
8. India after independence adopted the parliamentary system of government which is followed in Britain.
9. Many of the laws that were made during the British rule still continue to exist even after independence like the Indian Contract Act, 1872, Indian Partnership Act, 1932, Sales of Goods Act, 1930, Indian Penal Code, 1862, etc.
10. Although from time to time all these laws have been molded or amended according to the needs of the people and the change in the society,  it would not be wrong to say that the Common Law System of Britain laid the foundation of the Indian legal system.
11. The concept of rule of law, judicial precedent and other principles of public law has been introduced in India from common law. The doctrine of precedent was introduced in the 18th century through the royal charter. The constitution of India is heavily influenced by the government of India act 1935, for example, article 141 of our constitution is similar to article 212 of the Govt of India Act, 1935 .
12. The concept of separation of powers has been adopted from the common law. Though the Indian legal system is based on common law it has not copied all its provision word to word. Some differences can be highlighted for example, the House of Lords in England has been made bound by its own decision but the Supreme Court in India is not bound by its own decisions. Another example is, common law does not include any of the statutes or any other regulation but in India, our system is developed through the judgments along with statutory laws.

Conclusion

Finally, we could see how common law evolved in Europe and America and later it spread to other parts of the world, especially in Asia. Common law laid the foundation of many legal systems of the world and therefore served as a great impetus for the development of legal structures of many countries especially in India. Although the common law system had some defects as well when we look at the contribution made by it, its defects stand nowhere.

References

1. https://www.newworldencyclopedia.org/entry/Common_law
2. https://www.lawteacher.net/free-law-essays/administrative-law/what-is-common-law-administrative-law-essay.php

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This article has been written by Arkodeep Gorai, a fourth year student of Amity Law School, Noida. In this article he discusses how noise pollution is prevented and controlled in India.

Introduction

Throughout history, humans have always ignored the problem related to Noise Pollution. But with modernisation, the problem of noise pollution can no longer be ignored. The government and the general public need to take preventive measures to stop noise pollution which causes the problem to humans, animals and plants. In this article, we will look into the causes and statutory provisions related to noise pollution.

Meaning

Noise pollution simply means when there is a lot of noise in the environment which is consequentially harming the environment then it can be termed as noise pollution.

Section 2(a) of the Air (Prevention and Control of Pollution) Act, 1981 states that noise is actually a part of air pollutant.

Noise can be defined as unwanted or undesired sound. Noise is non-harmonious and but even music played loudly can also become noise.

Measurement of noise

The system of the physical unit or the SI unit for measurement of noise is decibel (dB). So to get a clear reference on the decibel scale we can look into a few examples:

20 to 25 dB is a whisper, 30 dB is noise at a quiet home, 60 dB is a normal conversation and 80 dB is the level of noise where it becomes physically uncomfortable for people.

Sources of noise pollution

Noise pollution is generally a by-product of action. Noise pollution is a consequential event so noise pollution definitely has a source and we will be looking further into the sources of noise pollution.

Traffic Noise- Except for the new generations of electric cars and bikes almost all the vehicles release a high amount of noise. India is already the second most populous country in the world and a lot of people own either a four-wheeler or a two-wheeler vehicle or both. A normal car releases around 85 dB of noise and a bike releases around 90 dB of noise. Additionally, Indians have a bad habit of honking the horn of their vehicles which additionally causes much more noise pollution.

Air-Craft Noise- Passenger planes, cargo planes, low flying military aircraft all of them combine together to cause more noise pollution. Initially, passenger planes were out of the picture but with new airports building near housing societies, the passenger planes are causing more problems than ever.

Noise due to commercial and industrial activities- Globalisation and Modernisation of India has led to an emphatic increase in a number of large industries and low-level industries. Most of the industries require heavy machinery to work and function. Even though industries do not affect communities that much but the noise pollution.

Noise from social gathering or event- Parties, religious ceremonies, clubs etc they all fall under the category of social gathering or event. Even such social gatherings also create quite a nuisance and cause a considerable amount of noise pollution.

Household noise- The scope of noises from household sources are too large but some typical examples would be barking of pet dogs, playing loud music at your house, usage of various kitchen appliances and more. Even such actions cause noise pollution in the environment.

Harmful effects of noise pollution

Whatever the source may be for noise pollution but the fact is noise pollution is harmful to human beings, animals and the environment as a whole. Initially, noise pollution was not evident and it did not cause much concern but in the last century noise pollution has been pervasive and intense. The harmful effects of noise pollution are as follows:

1. Lack of concentration- Noise pollution results in lack of concentration in many individuals. If a work environment is quiet then it leads to higher productivity of a person. High level of noise can cause headaches which can act as a barrier for a high level of concentration.
2. Blood pressure- Noise pollution increases the tension in a human being. These tensions further put pressure in a person’s mental health and as a result, it leads to high blood pressure.
3. Abortion- During the delivery of a baby there is an absolute requirement for a cool and calm environment, if there is too much noise then it irritates the baby and it can actually lead to abortion.
4. Deafness- This is easily one of the most common harmful effects of noise pollution. If a person exposes themselves to a high level of noise for an extended period of time it can easily cause temporary or permanent deafness in a human being.
5. Effects on plants and crops- Plants are similar to human beings and even they are sensitive to loud noises. When crops are exposed to too much noise then the quality of the crops drastically reduces.
6. Effects on animals- Noise pollution is particularly very dangerous for animals. Their nervous system is damaged due to noise pollution. Since they do not have the intelligence of humans so they are much more vulnerable to the ill effects of noise pollution compared to human beings.

Statutory provisions related to noise pollution in India

There are various statutory provisions related to noise pollution in India. Such provisions are spread across various laws and amendments and the various statutory provisions are as follows-

1. Constitution of India

Article 21 of the Indian Constitution grants the right to life to the citizens of India. Through various Supreme Court pronouncements, it has been made clear that the right to life doesn’t just mean mere existence or survival of a person. The scope of Article 21 is large and it is stated that it ensures a person to live with dignity or right to a better life.

So any person who faces problems due to noise pollution and it disrupts the person’s peace and comfort then it means the noise pollution is violating the person’s right to life.

2. The Code of Criminal Procedure

Section 133 of The Code of Criminal Procedure empowers an executive magistrate, district magistrate or sub-divisional magistrate to conditionally remove something that is causing a nuisance.

So this provision can be used or utilised in case of nuisance caused by noise. So if the executive magistrate, district magistrate or sub-divisional magistrate receives a report from a police officer or from some other source that loud noises are causing unlawful obstruction or nuisance and the source of such loud noises must be removed from public places which are lawfully used by the public then the executive magistrate, district magistrate or sub-divisional magistrate within a fixed time can order removal of such nuisance. If the executive magistrate, district magistrate or sub-divisional magistrate doesn’t take the required action then, in that case, this section can be called into question in a Civil Court.

3. Indian Penal Code

Chapter 14 of the Indian Penal Code deals with certain offences. Such offences are any action that affects public health or safety. Section 268, Section 287, Section 288, Section 290, Section 291 and Section 294 deals with noise pollution.

Section 268 talks about public nuisance and any person who is guilty of any public nuisance if that person commits an act which can cause injury to any person, which may irritate the general public or which can cause any general obstruction. So causing noise pollution also comes under the provisions of Section 268.

Section 287 talks about irresponsible use of any machinery. Any person who irresponsibly handles any machinery which later causes injury or harm to someone. So if someone is causing noise pollution with a machine then, in that case, that person may attract imprisonment up to 6 months or a fine of Rs. 1000.

Section 288 states that when a building is under the process of construction or repairmen then in that case if a person negligently causes injury to someone then that person is liable for imprisonment for a term of 6 months along with a fine of Rs. 1000.

Now during construction or repair of buildings, there is significant noise pollution. So such noise pollution can easily result in harming an individual or the general public and if something like that happens then the offender is punished under Section 288 of the Indian Penal Code.

Section 290 talks about any other form of public nuisance which has not been mentioned under the Indian Penal Code. So basically if there is any noise related incident which has not been mentioned under the code and such noise related incident is causing some form of a public nuisance then, in that case, the offender is served a fine of Rs. 200.

Section 291 states that if a person still continues causing public nuisance even when the person has been served injunction by a Court of law and such injunction is already ordering the person to not repeat such acts then in that case the person is punished with imprisonment of 6 months or he can be fined.

Section 294 talks about indecent songs and it further state if a person plays or recite or sing such indecent songs then in that he is causing a nuisance. Such an offender is jailed for a term of 3 months with fine or both.

4. Law of Torts

Noise pollution can be included under the offence of nuisance under the law of torts. Any person who is facing an issue due to such noise pollution can file a civil suit to claim damages. As long as there is interference in the use of land by the person due to the noise pollution and the person can prove such damages then in that case the person can file a suit related to such noise pollution.

5. Motor Vehicle Act

The Motor Vehicle Act lays down guidelines and related to the use of horns in vehicles. Horns that are too loud and causes nuisance are not allowed to be used under this Act.

6.Noise Pollution Control Rule, 2000 under The Environment Protection Act, 1996

The Noise Pollution Control Rule was amended in the year 2000 by the Indian Government to tackle and restrain noise pollution and it was made a part of The Environment Protection Act, 1996.

Under this rule, the government categorised territories as industrial, commercial and residential areas and the noise standard for such categorised territories were specified under this rule. This rule also stated that within the area of 100 meters of any hospital, schools, universities and court premises must be declared as silence zone and minimal noise shall be made in the 100 meters range.

The noise standard for day time in industrial areas is 75 dB, commercial areas are 65 dB, residential areas is 55 dB and for silence zone is 50 dB. The noise standard for night time in industrial areas is 70 dB, commercial areas are 55 dB, residential areas is 45 dB and for silence zone is 40 dB.

Also, this rule states that any loudspeaker can only be used after it has been permitted by the authority and such loudspeaker cannot be used from 10 p.m. to 6 a.m. and any person violating these rules becomes an offender and such an offender is liable for punishment and fine.

This rule is implemented across the territory of India.

Case laws related to noise pollution in India

Moulana Mufti Syed vs State of West Bengal and ORS. 1998

In this case, there were certain restrictions imposed in the State of West Bengal regarding the use of microphones. The restriction was that microphones cannot be used from 9 p.m. to 7 a.m. and only public authorities can use microphones in that time period.

The petitioners filed a writ application. The petitioners stated that azaan is part of their religion and such restrictions are violating their Article 25 which allows freedom of religion.

The court disposed of their petition and it stated that other people cannot be forced to listen to such azaan and the following restriction is not violating their Article 25 by any means and the police under the state of West Bengal were directed to confiscate any microphone used before 7 a.m.

Ram Autar vs State of Uttar Pradesh, 1962

The appellant, in this case, used to sell vegetables. In the process of selling, he used to auctions the price of vegetables which caused disruptions and nuisance. This auctioning was used to be carried out in private but still, it caused disruptions. The Court passed a restraining order in auctioning.

Later the Supreme Court repealed the orders and stated that under Section 133 of CrPC and stated that Section 133 was not made to stop such trade merely on the ground of disruption and discomfort. Hence, the appellant was allowed.

Conclusion

We can say that India with time has addressed the issue of noise pollution and the damages it can cause. By implementation of several laws regarding noise pollution, it can be said that the Indian Government is doing its part in the prevention and control of Noise Pollution.

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This article is written by Yash Jain, a third-year student of Institute of Law, Nirma University. This article talks about the Central Bureau of Investigation from its origin to its current position in India.

Introduction

Central Bureau of Investigation or CBI was established in the year 1963 by a resolution of the Home Ministry. CBI is not a statutory body. CBI has its origin from the Special Police Establishment which was set up by the government of India in 1941. After the world war ended, the need for investigation in matters of corruption was felt and for that, the Delhi Special Police Establishment Act was brought into force in the year 1946. Finally through a resolution, by the Home Ministry, dated 1.04.1963 the Delhi Special Police Establishment Act got the name Central Bureau of Investigation.

The bureau in the initial years, handled matters of corruption by the government servants as notified by the central government to the bureau, but with the passage of time and an increasing number of public sectors, CBI started handling matters of those working under the public sectors. It was from the year 1969, after the nationalization of banks that CBI widened its ambit to cover public sector banks and its employees under its purview. With this CBI started gaining its reputation so that the apex court and high courts also started assigning cases to it, with resources for investigation high-level complicated cases, CBI in today’s time handles the cases of murder, kidnapping and terrorism as well.

Composition of CBI

The CBI is headed by the director which has a term of two years and is selected through a difficult procedure. The founder director of CBI was Mr D P Kohli, during his long tenure of 5 years, firstly as inspector general of Special Police Establishment and then founder director of CBI laid the foundation and set the graph of agency for high growth. The director of CBI is an IPS officer of director general of police rank selected by a committee comprising of Prime Minister who is the head of the committee, leader of the opposition of Lok Sabha who acts as a member of the committee and Chief Justice of India or any other Supreme Court Judge appointed by the CJI, who acts as the another member of the committee. Where there is no recognised leader of opposition in Lok Sabha, leader of the single largest opposition party in the Lok Sabha will comprise as a member. Also, the views and recommendations of the outgoing director are taken into consideration during the selection procedure. The selection committee is empowered under The Delhi Special Police Establishment Act, 1946 while the composition of the committee has its place in the Lokpal and Lokayuktas Act, 2013. Earlier the constituting power of the committee was in the hands of Central Vigilance Commissioner.

There shall be a Directorate of prosecution headed by a Director for conducting prosecution of cases under the Lokpal and Lokayuktas Act, 2003. Directorate of Prosecution shall be an officer not below the rank of Joint Secretary to Government of India. He shall function under the overall supervision and control of the Director of the CBI.

Central Government shall appoint officers of the rank of SP and above in the CBI on the recommendation of a committee consisting of:

1. Central Vigilance Commissioner as Chairperson.
2. Vigilance Commissioners.
3. Secretary of the Home Ministry.
4. Secretary of the Department of Personnel.

The Central Bureau of investigation has its headquarters in New Delhi having all its agencies in an 11- storey building. CBI major agencies or divisions are:

1. Anti-corruption division: Responsible for collecting information with regard to corruption and bribery cases.
2. Special crimes division: The investigation of crimes which are a public threat such as murder, kidnapping, human trafficking takes place in this division.
3. Economic offence division: Responsible for economy-related offences like crime, money laundering, bank frauds, etc.
4. Directorate of prosecution: Responsible for legal action of people who have been arrested by all the other divisions of CBI.
5. Policy and coordination division: Responsible for decision and policy making includes works like coordinating with other ministries as well.
6. Central forensic laboratory: The forensic science laboratory is located in this division which is responsible for the investigation conducted by the police and the CBI as well.
7. Training Division: The CBI Academy is situated at Ghaziabad. It is a modern police training centre and imparts the specialised knowledge and skills that make a modern crime investigator.
8. Technical Advisory Unit: The Technical Advisory Units provide expert guidance and assistance in banking, taxation, engineering and foreign exchange matters during enquiries and investigations taken up by the CBI.

In total, it has about 5000 staff members, about 125 forensic scientists and about 250 law officers.

Functions of CBI

• The major functions of the Special Police Establishment were to take care of and investigate the cases of corruption and bribery with respect to the transactions of war and supply department of India.
• The CBI undertake cases of corruption, bribery, economic-offences committed by the central government employees.
• The major functions of CBI include investigating cases of corruption against central government employees.
• Investigating cases of bribery and misconduct by the central government officers, investigating cases of infringement of fiscal and economic laws upon consultation of the department concerned.
• Investigating crimes of serious nature having national and international importance.
• To keep check and balance on works of various anti-corruption and state police department.
• To investigate any case of public importance on request of the state government and to investigate cases directed by the supreme court and high courts.
• A five-judge constitutional bench held that the Supreme Court and the High Court has the power and jurisdiction to direct the CBI to investigate a particular case in order to protect the fundamental rights of the citizens and also that this power is extraordinary and hence should be used in exceptional situations only.
• The CBI acts as the “National Central Bureau” of Interpol in India. The Interpol Wing of the CBI coordinates requests for investigation-related activities originating from Indian law enforcement agencies and the member countries of the Interpol.

Provision of Prior Approval

Prior Approval of the Central Government is necessary before conducting any enquiry or investigation into an offence committed by the officers of the rank of joint secretary and above in the Central Government and its authorities. A Constitutional Bench of the Supreme Court held that Section 6A of the Delhi Special Police Establishment Act, which grants protection to the joint secretary and above officers from facing even a preliminary inquiry by the CBI in corruption cases, was violative of Article 14 of the Indian Constitution. Section 6A of the Delhi Special Police Establishment Act (granting protection to one set of officers) is directly destructive and runs counter to the object of Article 14.   

CBI vs. State Police Forces

• Special Police Establishment (a division of CBI) is supplementary to that of state police forces.
• It avoids duplication and overlapping of cases between these two agencies.
• Special Police Establishment takes up such cases which are essentially and substantially concerned with the Central Government’s affairs or employees, even if it also involves certain State Government employees.   
• The State Police Force takes up such cases which are substantially concerned with the State Government’s affairs or employees, even if it also involves certain Central Government employees.  
• The Special Police Establishment takes up cases against employees of public understanding or statutory bodies established and financed by the Central Government.

Ground for Right To Information

Central Bureau of Investigation is exempted to provide Right to Information to the public. The exemption was granted on the ground of “National Security”. The set exemption was also given to agencies like the National Investigating Agency (NIA), the Directorate General of Income Tax Investigation and the National Intelligence Grid (Natgrid). Without setting a blanket ban on Right to Information for the public, the CBI can take advantage of the provision of “in the interest of national security”. At the same time, CBI has also the right to deny information relating to an investigation of on-going cases, whether of corruption or of other common law crime or terrorism-related. The ban was criticized by the Central Information Commission and RTI activists, who said that the blanket ban on RTI violated the purpose of Right To Information Act, 2005.

Constitutional Status of CBI

CBI is not a statutory body. It is an extra-constitutional non-statutory body, which means its establishment is done by executive order and not by any act. Even though it derives its powers from the Delhi Special Police Establishment Act it’s not a statutory body. On 6 Nov 2013, the Gauhati High Court judgement confirmed the status of CBI, holding that CBI does not hold legal status.  

Conviction Rate of CBI

There has been a big decline in the conviction rate of cases investigated by the Central Bureau of Investigation. Official figures say that the conviction rate was close to 71 per cent in 2010 but declined to 67 per cent during 2011-12. After the general elections of 2014, the rate rose marginally by two per cent. But for the past two years, it has dropped to 66.8 per cent.  

Current Controversy  

The CBI has always been into news and controversies for some or the other reasons. In the latest case of CBI v. CBI, there was a conflict between CBI director Alok Verma and CBI special director Rakesh Asthana. In October 2017, Rakesh Asthana was promoted to the post of special director of CBI. Alok Verma, who was the director of the CBI at that time, questioned his promotion because Rakesh Asthana was accused in a corruption case known as Sterling Biotech Corruption Case. Alok questioned to Central Vigilance Commission on promoting a person who is accused in a corruption case and whose decision is still pending. But, CVC rejected the objections of Alok Verma. When the case reached to SC, the apex court denied interfering in the matter and hence the promotion of Rakesh Asthana was upheld.  

In Oct 2018, CBI raided the office of Asthana accusing him of taking bribery in Moin Qureshi Case. From there the name that hit the headlines is CBI v. CBI case. Rakesh Asthana in his defence said that he was not the one who took bribery, but it was the CBI director Alok Verma who took the bribery. The government interfered and gave both the officers an indefinite leave from their offices. In the meanwhile, government-appointed interim chief Nageshwar Rao whose decision also raised many controversies. The interim chief will only administer administrative powers and no policy decisions can be taken by him.

In another recent controversy of CBI, State Governments of Andhra Pradesh and West Bengal withdrew general consent given to CBI to investigate cases. They have lost faith in central agencies like CBI to their misuse by the Prime Minister at the central level.

Conclusion

After CBI was referred to as a “caged parrot speaking in its master’s voice” and further as “It’s a sordid saga that there are many masters and one parrot,” by the apex court, CBI has been in the limelight in recent years. CBI is India’s one of the supreme investigation agencies. From years after years, the body has played a predominant role in curbing corruption and bribery cases. After such a vast role that CBI handles, it is not easy to maintain the same level of effectiveness every time. Sometimes some things are meant to happen which cannot be escaped. The recent controversies of the Central Bureau of Investigation are some of the examples of those mishappenings. But that does not mean in any way that people will lose faith over CBI that in all circumstances conducts all investigations in a free, fair and impartial manner as per the law. People should have their trust and faith in CBI irrespective of the fact that the CBI has faced harsh criticism and being in the spotlight in recent times.  

References

1. http://cbi.gov.in/rt_infoact/rti.php.
2. https://www.civilsdaily.com/central-bureau-of-investigation-composition-functions/.
3. https://timesofindia.indiatimes.com/blogs/les-avis/cbi-the-past-the-present-and-the-future/.
4. https://www.thehindu.com/news/national/why-exempt-cbi-from-rti-asks-petition/article19902011.ece.
5. https://www.thehindu.com/todays-paper/tp-in-school/cbi-a-caged-parrot-speaking-in-its-masters-voice-sc/article4697433.ece.
6. https://in.reuters.com/article/cbi-supreme-court-parrot-coal/a-caged-parrot-supreme-court-describes-cbi-idINDEE94901W20130510.
7. http://www.newindianexpress.com/nation/2018/may/28/cbi-probes-leading-to-fewer-convictions-1820325.html.
8. https://www.outlookindia.com/website/story/has-cbi-failed-the-nation/309332.
9. https://www.outlookindia.com/website/story/the-cbi-the-rti/277551.
10. https://www.indiatoday.in/india/story/was-cbi-director-alok-verma-removed-illegally-1374234-2018-10-24.
11. 18-10-23.https://scroll.in/article/909334/the-daily-fix-everything-about-alok-vermas-sacking-from-the-cbi-is-under-question.

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This article is written by Richa Goel of Banasthali Vidyapith. In this article, she has discussed the concept of legal rights and duties.

Introduction

The law protects the legal right of every citizen. By being a citizen of the country, the people are given the legal right. It is the duty of every individual to protect the rights of each individual.

Meaning

In general word, it means that the action which is permitted by the law is called legal right or the act which is recognized or protected by the state is called legal right. The definition is given by the number of jurists like Holland, Austin, Pollock.

According to Salmond:

A legal right is an “interest which is protected and recognized by the rule of law. It is an interest which has its duty and disregard of which is wrong”.

According to Gray:

A legal right is “that power which the man has, to make a person or persons to do or restrains from doing a certain act or acts so far as the power arises from society imposing a legal duty upon the person or persons. He states that the “right is not the interest itself, it is the means to enjoy the interest secured”.

In the case of State of Rajasthan vs Union of India[1], the Supreme Court stated that “Legal rights in the strict sense are correlatives of legal duties and legal rights are defined as the interests which the law protects by imposing duties on other persons. But the legal right in the strict sense means right is the immunity from the legal power of another. Immunity is no subjection at all”.

Essential conditions of legal right

According to Salmond, there are five essential conditions that need to be fulfilled:

• The person of inheritance/ Subject of right:

He shall be the person who is the owner of the right. He is the subject of the legal right. Such a person is called a person of inheritance. Example:-Y purchase a van for Rs 20,000. Here Y is the subject of the right.

Even in the case when the property is bequest to the unborn child, the unborn child is the owner of the property even though he is uncertain.

• The subject of duty/ the person of incidence:

It is the duty of another person or persons to respect and recognize the right of the person. Such a person who has a legal duty is called a person of incidence. Example- If A has a legal right against B, then it is the duty of B to respect the right of A.

• Contents or Subject Matter of legal right:

The subject matter of legal right is an essential element. It deals with the subject matter of the legal right. It is related to do something or to refrain from doing certain acts or forbearance. It obligates the person to forbear or act in favour of the person possessing a legal right. Example-Y purchase a van for Rs 20,000. Here Y is the subject of the right. The subject matter ( Y) has a legal right and he can exclude others.

• The object of the legal right:

The object of the legal rights is a thing or object over which the legal right is exercised. Example- A purchases the car for Rs 1,00,000. Here the car is the object.

• Title of the legal right:

The title is the process by which the right is vested or conferred on the person. It is certain events by which right is acquired from its previous owner. Example- By purchase or gift or will etc.

Theories Related To The Legal Right

• Interest Theory

Developed by: Rudolf Von Jhering

Rudolf Von Jhering stated that Legal right is the legally protected interest. He gave importance to the interest of the people rather than the will of the people. The main objective is to protect the interests of the people and to avoid the conflict between the individual interest.

Their interest exists in the life of the community itself. They are not created by any statute.

Salmond positive view:

He supported this theory but he stated that its enforceability is an essential condition.

Salmond criticism:

He criticized the interest theory on the ground that the interest is not protected by the state. In order to confer a legal right, it is essential that interest should be protected and recognized by the state.

Gray view:

He said that this theory is partially correct because a legal right is not an interest in itself but it is only meant to protect the interests of an individual. He also stated that legal rights confer the right on the person to do a certain act / to forbear by imposing a legal duty on them through the agency of law “state”.

Dr Allen view:

It can be said that both the theories are not contradictory to each other but it is the combination of both the theories. He tried to combine these two theories by pointing out that the essence of legal right seems to be, not legally guaranteed power by itself nor legally protected by itself, but the legally guaranteed power to realise an interest.  It can be concluded that both theories are the essential ingredients of the legal right.

• Will theory

Supported by: Kant, Hegel, Hume

According to his theory “rights is an inherent attribute of the human will”. The purpose of the law is to permit the expression of free will. The subject matter is derived from the human will.

Rights are defined in the terms of will by Austin, Pollock and Holland. According to John Locke, “the basis of the right is the will of the individual”. According to Puchta the legal rights gives power to the person over the object which by means of right can be subjected to the will of the person who is enjoying the right.

Criticized by: Duguit

According to him the basis of the law is not a subjective will but it is an objective will. The purpose of the law is to protect only those acts which further support social solidarity. He further stated that the theory of subjective right is a metaphysical abstraction.

Classification of Legal Right

Right in rem and Right in Persona

The right in rem is the right available against society at large. For Example:- a crime committed under I.P.C  because it is a crime committed against the state.

Right in Persona means right that is available against an individual. Example breach of Contract. When there is a breach of contract, the party who has performed the act files the suit against the breaching party. Right in Persona is temporary in nature, which can be converted into right in rem. Right in rem is a permanent in nature.

Positive Rights and Negative Rights

A positive right is a right when some action needs to be done by the person who has the corresponding duty. The person on whom the duty lies must perform some positive acts.

The negative rights are the rights which omit the person from performing certain acts. Negative rights correspond to negative duty. The person on whom such duty is imposed is restrained from performing certain acts.

Personal and Proprietary Rights

Personal rights are the right to respect the owner of the right. The personal right has no economic value and this right is related to personal status or well being. Example the right to live with dignity, the right to freedom of speech and expression.

The proprietary right is given in respect of the owner of the property. These rights are rights which has some monetary value or economic value and constitute the estate of the person.  Example-patent rights, right to land, debt etc.

Perfect and Imperfect right

Perfect rights are protected and recognized by law and the suit can be instituted in the court against the wrongdoer for the breach of it. Example: A has taken the loan from B. B has the duty to pay the loan and A has the perfect right to claim the loan amount. If B fails to pay then A has the right to file the suit in the court.

Imperfect rights are those rights which are neither recognized nor protected by law. Example: if the loan becomes time-barred, then he can claim his money back but it cannot be enforced by law.

Principal and Accessory Rights

The principal right is the most important rights. They are the basic right that is vested on an individual.

The accessory right is the consequential or incidental right. They are not important but they are ostensible to basic right.

Right in Re-aliens and Right in Re-propria

Right in Re-aliena is the right available against the property of another person. Example- The right of easement. It is the result of jurisprudence concept of dominant heritage and servient heritage.

Right in Re-Propria is the right available in respect of one’s own property. It results in absolute ownership. This is the result of jurisprudence concept of ownership.

Corporeal and Incorporeal right

Both the rights are protected by law. The corporeal right is the rights over tangible objects or material objects. Corporeal rights are having the rights over the objects which can be seen, touch or perceived. Example: I purchase the watch. The watch has physical existence so I have a corporeal right over it.

The incorporeal right is the right over the object which cannot be seen or touched. Example right to reputation.

Legal and Equitable Right

Legal rights are protected by the common law i.e Court of England. Common law depends upon the usage and custom.

Equitable rights are protected by the equity court or the court of chancellor. The basic principle is natural justice, equity, justice and good conscience.

Primary and Sanctioning Rights

The primary right is important and is a very basic right. These rights are ipso facto. These rights are independent in nature. It has a binding force. They are right in rem. Example: the right to reputation. If these rights are infringed in such case a person can approach the Courts of Law. A legal remedy is available against such right in the form of compensation or imposing a penalty or imprisonment.

Sanctioning rights are resultant rights. They are supporting rights to primary rights. They are right in persona, which results from some wrongdoing. Example: it arises when there is an infringement of primary rights.

Public and Private Rights

The public right is the right that is exercised by the State. Example- right to vote, right to use road etc. The private right is exercised by an individual for his personal benefit. Example:- right to sleep, right to clean water.

Vested and Contingent Rights

A vested right is a right which is vested on the person from the very beginning. No events are required to take place for conferring the rights of an individual. It depends on the present situation.

Contingent rights are rights which are conferred on the happening or non-happening of certain acts. This right depends upon future acts. If the act which is prescribed take place then only the right will be conferred on the person.

How Legal Right is Enforced

Ubi jus ibi remedium which means where there is a right there is a remedy. If the person’s right is violated that can be approached to the court. They can get relief in the form of compensation. When the compensation does not satisfy the claim of the plaintiff then the court may order for the specific performance of the Contract. It is governed by the Specific Relief Act.

Duties

When the right is given to the person then it is assumed that certain duties are also imposed on the person. The right has its correlative duties. There are two kinds of duties when it is the obligation of the person to perform his duty when he has a legal duty but in case of moral duty he has no obligation. It is on the discretion of an individual. The duties are classified into absolute and relative duty, positive and negative duty and primary and secondary duty.

Let us study the concept of duty through the ppt.

Conclusion

We can conclude that rights and duties are co-existent. In the words of Salmond, it can be said that no right exists without the corresponding duty. Every duty of the person must be the duty towards some person, in whom the right is vested and conversely every right must be against some persons upon whom a duty is imposed.

References

1. 1978 SCR (1)1
2. http://www.desikanoon.co.in/2012/08/jurisprudence-notes-legal-concepts.html
3. https://www.lawnotes.in/Legal_Duty

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This article is written by Anirudh Vats, 2nd year student at Rajiv Gandhi National University of Law, Patiala. This article will aim to lay out some basic realities about being a law student, will capture the misconceptions students might have while aiming to join a school and help change the outlook of a student towards law school.

Getting into a quality Law School is a dream many aspiring lawyers have. But the actual experience of Law school can be much different from the image students have in mind of their law school life. Therefore, being aware of the realities and challenges of Law School is something that is of utmost importance, even if one is entirely convinced that becoming a lawyer is his sole path in life.

1. Reading, reading and more reading

If you are seriously considering enrolling in Law School, it would be almost expected of you to be a voracious reader, because Law school expects you to gorge down books like fried chicken. From statutes to journals, articles, research papers, even literature and poetry, Law school requires extensive reading and is an essential habit to have in your arsenal if you want to succeed in Law School.

It is difficult to overestimate just how much reading a law student has to do, perhaps more than in any other academic course. Moreover, when you are reading a legal document, never can you be a passive reader. It requires a lot of deliberation, analysis, and critical thinking skills to adequately grasp what a legal document means.

The library is your church, and the books are the holy word. Embrace your inner academic and start flipping pages!

If you are someone who doesn’t do a lot of reading, don’t be discouraged. Although you are at a disadvantage and the way ahead is hard and long, reading is not a difficult habit to cultivate if you approach it the right way. First of all, realize that you are a beginner. Do not pick up complex bare acts or 1000 page judgements from the get go. You will probably feel lost and unable to grasp the legal jargon, hence be discouraged and feel inadequate. The best approach to cultivating a habit of reading, is to start with fiction. These books may not be in any way related to your legal aspirations, but interesting stories keep us hooked, and we need to be interested in what we’re reading to build a habit out of it.

When you start Law School, it all might seem like too much of you. Case laws, precedents, judgements will need to be memorized to the tee along with latin maxims and other legal jargon. But know that everyone else is starting out with you, and with persistent effort and incremental improvement, you’ll get there.

One of the great things about law school is that sooner than you know, you’ll be able to sift through complex writings and identify relevant information, you’ll start to understand the use of language and how to say a lot in a few words.

This will not only help you in your professional life, but also in your personal transactions and finances. Reading an insurance agreement, a contract or a complex tax procedure, all become child’s play after reading pages and pages of judgements, cases and statutes.

2. Academics is not enough to succeed

From my time in Law School, this is one of the most important lessons that I have learned. Some students tend to be overly academic, acing all their exams, memorizing all the case laws, and having legal maxims at the tip of their tongue. While this proclivity towards academics is certainly helpful, it is not enough to excel and may eat away into time you should be putting into developing other essential skills.

Law is a profession which is based on your communication skills. When you graduate, it is your own networking, that you’ve done throughout your course, which will help you land your dream job and push you towards success.

Students should use their time in law school to develop their communication skills. Establishing mature and professional friendships with your peers, working on your public speaking skills, building your collaborative skills are some areas which are essential for a law aspirant to be good at.

Participating in debate competitions, Moot Court competitions, Arbitration and Mediation seminars and conferences etc. are instrumental in determining your law school success.

Developing critical thinking skills is essential as a lawyer. Don’t simply accept what you read and learn in University. Challenge it, reject it, put your own ideas forward. Question your professors in class, review articles and always value your own unique opinion.

Being a bookworm might help you become the most knowledgeable student in class, but it does not teach you the practical, pragmatic skills which need to be applied in real life professional situations to solve problems and excel in your profession.

3. The Job Market

India, in recent years, has become a factory for lawyers. Each year, thousands of students come into the profession, and there just aren’t enough jobs for them.

Firms hire only the top students from the top universities, and it is a given that if you are not from a leading university, you will have trouble landing a job once you graduate.

This is not to discourage anyone from enrolling in Law School, but a reminder to students to adjust their expectations to be realistic.

After you graduate, the struggle has just begun. You may have to pursue more internships, more specialized courses, higher studies, vocational training etc. before you land a reasonable job.

If you want to pursue litigation, understand that it is immensely competitive and overcrowded. You will have to put in the years and the effort before clients start trusting you and you build a brand name for yourself. But the good part is that once you get to where you want to, the profession can be incredibly rewarding. For starters, as a practising lawyer, you work on your own terms. You take up clients when you want to, you can choose to work from wherever you want to, and most importantly, you are your own boss!

My advice would be to not fear the struggle, but to embrace it. Know that you will succeed if you put in the required time and effort, and get to wherever you want to be.

4. Research your law school before starting

Don’t go in blind. Having a roadmap in your mind at the start of Law School can give you the headstart you need to get you going. These are some of the things you can do to be better prepared:

• Research the location surrounding your college. Where to eat, where to shop, where to get essentials.

• Research the departments of your school. What areas, committees, editorials, research cells do you want to get involved in and which courses or subjects to take up.

• Research your faculty. Their resumes, CV’s, achievements etc. will help you acquaint with them beforehand and know who is going to be teaching you and shaping your worldview and opinions for the next few years.

• Also learn about where your university lacks, to better understand the areas you need to excel in on an individual level to stand out amongst the crowd.

• Having a basic idea as to the functioning of your Law school will give you a headstart in navigating through the challenges you will inevitably face.

• Talk to your seniors and learn more about how to thrive in your university. Seniors often give the best advice, as their experience is recent and firsthand.

5. Don’t give out free legal advice at the first sign

When your non-lawyer friends ask you about a case, or about a personal legal battle, it can be tempting to throw out your legal wisdom and have your moment in the sun. Realize that you are still learning and law only gets grayer as you delve deep. Certainty in law often means ignorance.

Law is a field which rewards specializations. If your friend has an IPR case ongoing, realize that you are no expert in the field, and your advice might be misleading or useless.

However, friends and family will continue to come to you for their smallest legal problems, and you will have to help them out the best you can. Just don’t go overboard and admit when you don’t know enough about a certain law or provision.

6. Practising self-care and striking a balance.

This advice is more general but applies to Law Schools specially as well. Pulling all nighters, eating fast food and staying glued to screens is the norm in Law School. In no time, you can become a slave to these unhealthy habits. Remember to be conscious about changing behavioural patterns, and be really careful about what habits you pick up.

Law school is also known to be an indulgent place. Alcohol, drugs and partying are a lifestyle. To each his own, i will not make any judgement on a person’s indulgences. Just make sure that when you indulge, you always do it on your own terms. Do it whenever YOU want to, and how much you want to. Peer pressure is a rabbit hole anyone can fall into fairly easily, be careful to never give in to your friends’ persistence, especially when it comes to alcohol or drugs.

Exercising regularly is good advice regardless of context, place or time. This applies to Law School as well. Your day could easily get so busy that you forget to take that one hour out of the day to go for a run, have a short workout in the gym or play a sport. Exercising and keeping yourself fit does not only have health benefits, but will also build confidence, keep you energetic and help you succeed.

Eating healthy is perhaps the most important of all advice. Law School is full of highly caffeinated people surviving on two cheeseburgers a day. Believe me, you do not want to be that guy.

Equally as important as your physical wellbeing, is your mental health. Daily life in university will bombard your mind with complex emotional, interpersonal and philosophical problems, and you need to understand that you cannot deal with them all at once. Do not let a person or an experience disturb you mental peace. Take time off to be alone, enjoy your own company and reconnect with yourself. The good part is, over time, you will realize that you have begun to understand people, their problems, their insecurities and their aspirations much better than you used to. University can teach you a lot about human nature and tendencies. Just try to absorb all that learning without sacrificing your mental health.

7. Learn to think for yourself

Be wary of people advising you. There is more bad advice out there than good. Every suggestion or advice you receive (including this article) needs to be rationalized and interpreted by everyone according to their own understanding. Don’t accept anything a person advises you to do without thinking it through yourself. That person may be an authority figure or someone influential. Influential people can hijack your mind and make you believe anything they want, be wary of their intentions and motivations whenever they advise you or tell you what to do.

In interpersonal and social scenarios, retain your individuality. Do not blindly follow the path that everyone is following.

Remember to not be affected by what people are doing around you. Anyone can easily make you insecure if you are not clear in your mind as to what you want to achieve. The smallest thing can make you feel inadequate, or that people are getting ahead while you are stuck in a mental rut.

Realize that people are as stupid and confused as you. They are also experiencing everything that you are with you and dealing with it in their own ways.

Do not do anything just to feel included, or to please someone, or prove a point. Clear out your aims and aspirations in your head and work towards realizing your goals. Law School is a single player game!

Conclusion

Law School, despite its challenges, can be the most enriching and rewarding experience of your life. It can teach you work ethic, how to build professional relationships, how to read and write better, how to network yourself and arm you with the skills that you need to conquer whatever field you choose to strive for success.

Happy lawyering!

The post Things you should know before starting Law School 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 act of private defences and to what extent it is excusable in case criminal liability arises under the Indian Penal Code.

Introduction

Everyone has a right of private defence. Right of self-defence is based upon the general maxim that “necessity knows no law” and “it is the primary duty of man to first help himself” [1].

If a person does an act while exercising his right of private defence, his act would be no offence (Section 96). Right of private defence is based upon the instinct of self-preservation. This instinct is vested in every human being and has been recognised by the law in all the civilized countries. The need for self-preservation is rooted in the doctrine of necessity [2].

Common law has always recognised the right of a person to protect himself from attack and to act in defence of others. In this process, he can inflict violence on another, if necessary [3]. The person who is about to be attacked does not have to wait for the assailant to attack first[4].

What is the nature of the right of private defence?

The right of private defence of people is recognised in all free, civilised and democratic societies within certain reasonable limits. Those limits are dictated in two considerations [5]:

• Every member of the society can claim this right
• That the state takes responsibility for the maintenance of law and order

This right of private defence is preventive and not punitive.

Supreme Court said that the right of private defence is a defensive right surrounded by the law and is available only when the person is able to justify his circumstances. This right is available against an offence and therefore, where an act is done in exercise of the right of private defence, such an act cannot go in favour of the aggressor.

In the case of Darshan Singh v. State of Punjab, the Supreme Court gave the following principles to govern the ‘right to private defence’:

1. All the civilized countries recognise the right of private defence but of-course with reasonable limits. Self-preservation is duly recognized by the criminal jurisprudence of all civilized countries.
2. The right of private defence is available only when the person is under necessity to tackle the danger and not of self-creation.
3. Only a reasonable apprehension is enough to exercise the right of self-defence. It is not necessary that there should be an actual commission of the offence to give rise to the right of private defence. It is enough if the accused apprehended that an offence is likely to be committed if the right of private defence is not exercised.
4. The right of private defence commences as soon as a reasonable apprehension arises and continues till the time such apprehension exists.
5. We cannot expect a person under assault to use his defence in a step by step manner.
6. In private defence, the force used by the accused must be reasonable and necessary for the protection of the person or property.
7. If the accused does not plead self-defence, the court can consider the chances of the existence of such defence depending upon the material on record.
8. There is no need for the accused to prove beyond reasonable doubt that the right of private defence existed.
9. Under The Indian Penal Code [10] the right of private defence exists only against an offence.
10. If a person is in imminent and reasonable danger of losing his life or limb; he may exercise the right of self-defence to inflict any harm which can extend to death on his assailant.

What is the scope of the right?

Chapter IV of the IPC, which includes Section 76 to Section 106, explains general defences which can be pleaded as an exception for any offence. The right of private defence explains that if something is done in private defence then it is no offence. A right to defend does not include a right to launch an offence, particularly when there is no more a need to defend [6].

The right of private defence has to be exercised directly in proportion to the extent of aggression [7].

How to test the right of private defence?

There is no as such hardcore formula to test that the act of the person falls within the ambit of private defence or not. It depends upon the set of circumstances in which the person has acted. Whether in a particular circumstance, a person has legitimately acted to exercise his right of private defence is a question of fact.

In determining this question of fact, the court must consider the surrounding facts and circumstances. If the circumstances show that the right of private defence has been legitimately exercised, the court is open to consider the plea [8].

Certain factors need to be kept in mind in considering the act of private defence:

• If there was sufficient time for recourse to public authorities or not
• If the harm caused was more than what was necessary to be caused or not
• If there was a necessity to take such action or not
• If the accused person was the aggressor or not
• If there was a reasonable apprehension of death, grievous hurt or hurt to the body or property. [9]

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Important points to be noted for the right of private defence!

• The right of private defence is a defensive right covered under the statute available only when the circumstances can justify it. It should not be allowed to be used under the pretext of a vindictive, retributive or aggressive purpose[11].
• The right of private defence cannot be used as a shield to justify an act of aggression [12]. No one is allowed to provoke an act under the pretext of killing [13]. No aggressor can claim a right of private defence [14].
• The necessity must be real and apparent [15].
• The exercise of the right of private defence is not an offence in return [16].
• In considering the plea of private defence, time is also important. If an attack is made before any fear of injury to body or property has arisen, it will not be considered as a step taken for private defence. Also, if after the fear is over, no attack can be considered as an act of private defence. Additionally, if someone attacks for an injury incurred in past, it will be considered as revenge and not a private defence.
• The right of private defence ends with the necessity for it or at the moment the aggressor becomes disabled or helpless.
• In exercise of the right, the person must use force which is necessary for the purpose and must stop using such force when the threat stops existing.
• When both the sides entered into the free fight, no right of private defence is usually available to either party and they will be guilty for their respective acts [17].
• The burden of proof is on the accused to prove that his act lies under the exception of private defence.
• No right of private defence can arise in case a person joins an unlawful assembly.
• If a person acted to resist an illegal act, he can be excused under the private defence.
• It is the right of the accused to plea for private defence.
• The circumstances need to clearly justify the act of private defence.

Against whom and to what extent can the right of private defence be exercised? (Section 97)

Section 97 states that the right of private defence is available against the body and property only. Along with this, Section 99 states the exceptions to the rule of private defence. Both of these sections together lay down the principles of the right of private defence.

The right of private defence against Body

Under section 97, every person has a right to defend his body or of any other person or to defend against any offence which affects the human body. The person can also exercise the right against his property including both movable property such as a car or jewellery and immovable property such as land or house.

The right of private defence against property

A person can also exercise the right against the property of other people along with his own property. The right of private defence against property can only be exercised against offences in the category of theft, robbery, mischief or criminal trespass or against theft, mischief or house-trespass the person is under reasonable fear of probable death or grievous hurt.

Every person has a right to dispose of his property and to throw away any trespasser who enters into the property without permission. But if the trespasser has the possession of the property and the owner knows about it, the right of private defence is not available to the owner. For example, tenant.

The right of self-defence against a trespasser is available till the time the trespasser is actually on the land. If the trespasser tries to dispossess the owner from the property, the owner has the right to inflict such injuries over the trespasser to dispossess him from the property. The moment the trespasser is dispossessed, the owner’s right of private defence is expired and he cannot take laws in his hands and injure the trespasser.

There are cases where the private defence is available against the owner. If the person is in lawful possession of the property and the owner tries to dispossess him from the property, the possessor of the property has a right to exercise self-defence.

For exercising such right, following conditions needs to be fulfilled [18]:

• The trespasser must be in actual physical possession of the property over a sufficiently long period.
• The possession must be in knowledge of the owner, either expressed or without any concealment of fact.
• The process of dispossession of the true owner by the trespasser must be complete and final.
• In case of culturable land, if the possessor has grown any crop on the land then none including the true owner has a right to destroy those crops [67].

The right of private defence of property is available to prevent theft, robbery, mischief or criminal trespass or an attempt to commit any of these offences. Where the offence has been committed or the act constituting the offence has ceased, the right cannot be exercised [68].

In short, the law of private defence is summarised by a full bench of Orissa High court in the case of State of Orissa v. Rabindra Nath [19]:

• It is the responsibility of the State to defend a person’s body and property. In the same way, it is the duty of every person to take shelter under the machinery of the state. But in case such aid is not available, he has the right of private defence.

• Whether or not a person was allowed to use his right of private defence without the recourse of public authorities depends upon the nature of threat of imminent danger. The right of private defence of property commences when a reasonable apprehension of danger to the property commences.

• After the actual danger has commenced, the question of applying for protection of the public authorities does not arise.

• The law does not expect a person to run away for protection under public authorities when someone attacks on a person in possession of the property. The moment reasonable apprehension of imminent danger to the property commences, the right of private defence is available to the individual. There is no duty on the accused to run for protection of public authorities.

• When a person in possession is attacked by trespassers, he has the whole right to drive away the aggressors by application of force. When the person who is in physical possession of the property is dispossessed by the trespasser, he is entitled in exercise of the right of private defence to drive away such intruder provided that the trespasser has not obtained settled possession over the property.

• If the accused although has the physical possession of the property but at the time of attack, if he is not present at the spot, is entitled to exercise his right to force aggressor to not to enter into the property or to turn away the aggressor when he comes to know that the trespasser is getting into possession of his property or is attempting to do so.

• If there is an imminent danger to the property and the person in possession incurs sufficient injury, he is entitled to defend the act of aggressor without asking for the aid of the state.

• When there is no serious loss to the property or no urgency for driving away from the trespasser, the person must recourse to state aid and not exercise any offence under the shelter of private defence. Where such person exercising the right is present on the property at the time trespass is attempted, he would ordinarily have the right of private defence as soon as his possession over the property is actually threatened. There can be an exception to the rule of seeking state aid in case where the aggressor tries to take advantage of the temporary absence of the person who has the settled possession of the property and attempts to trespass to the property.

• Just because the location of police station was not away from the crime scene, it does not mean that a person cannot exercise his right of private defence. This can be taken into account if it is proved that could have been timely and effective. The effectiveness of the police help depends on the possibility that timely information to the police and obtaining timely assistance from the police was possible and effective.

• In dealing with cases of private defence, a distinction must be made between enforcing a right and maintaining the right.
• If the aggressor was only preparing for the attack, this does not mean that the other person has no right of private defence. It must, however, be proved that there was no time to take recourse of public authorities.

Can you exercise the right of private defence against a person of unsound mind? (Section 98)

We know that a person of unsound mind is immune from getting punished for any offence. But what can we do if that person attacks or tries to harm our body or property? It is said that the immunity given to the insane person will not affect your right of private defence in any manner. Although any offence committed by an insane person is no offence in the eyes of the law; this won’t affect your right of private defence. An individual has the same right of private defence against an insane person as he has against a sane person.

For example, a person under the influence of sleepwalking, tries to kill Mr. Gabbar. Mr. Gabbar in private defence hits that person with a stick causing hurt. Here, the person who is sleepwalking is guilty of no offence. Mr. Gabbar, however, has a complete right of private defence.

This right is applicable to other exceptional cases as well such as:

• A child below 12 years
• A person who lacks understanding
• A person with unsound mind
• An intoxicated person

When can a person exercise his right of private defence against the body to cause death? (Section 100)

1. 100 authorises a person to take away life in exercise of his right of private defence against body. The basic idea behind Section 100 was that no innocent person should be punished. If a person has committed an offence in order to protect his or someone else’s person or property instead of running away from the spot; the law gives him the right to defend the concerned person or property [20].

It is the duty of the court to check if the action of the accused is protected under the exceptions of Section 100 or not, even though the accused has not taken a plea. It is not necessary that the accused has obtained any injury or not. Mere reasonable apprehension would be sufficient for the exercise of right of private defence [21].

The right of private defence can save a person from guilt even if he causes the death of another person in the following situations:

• The deceased was the actual assailant,
• There was a threat to life or of great bodily harm must be present,
• The threat must be real and apparent as to create honest belief that necessity exists,
• There must be no other reasonable or safe mode of escape,
• There must be a necessity of taking life
• If the offence which is committed by the deceased and which had occasioned the cause of the exercise of the right of private defence of body and property falls within any of the seven categories enumerated in Sections 100 of the penal code [22].

This Section exercises a limit on the right of private defence to the extent of absolute necessity. It must not be more than what is necessary for defending aggression. There must be reasonable apprehension of danger that comes from the aggressor [23].

The question of private defence arises only when the prosecution has established that the act of the accused is an offence [24].

Cases in which the right of private defence can be exercised to the extent of causing death:

• Fear of death: If there is an assault and a person has a reasonable fear that his death will cause if he will not kill that person.
• Fear of grievous hurt: If there is an assault and a person has a reasonable fear that he will be grievously hurt if he will not kill that person.

To prove that the person was under fear of death or grievous hurt; the following conditions need to be fulfilled:

• • The accused must not have caused the fault i.e. he must not have started the encounter first. It needs to be the victim who should cause the fear of death or grievous hurt without fault of the accused.
  • There must be an approaching danger to life or of great bodily harm. This danger must be so evident and real that the other person felt the necessity to cause death.
  • There must not be any other safe or reasonable way to escape from that situation.
  • There must be a necessity to do so. The act of voluntarily causing death can be excused only when the person feels that it is necessary to act that way [25].

Reasonable Apprehension of danger:

The right of private defence of the body extends to voluntarily causing of death to the assailant during the assault if the victim has reasonable apprehension that grievous hurt would otherwise be the consequence. It is this apprehension in the mind of the victim which gives him the right of private defence to voluntarily cause death of the assailant [26].

In considering the plea of self-defence, it is not to be considered that how many injuries have been inflicted upon the accused. It does not matter if any injury has been inflicted or not. What is to be considered is whether the accused had any reasonable apprehension of grievous hurt or death to himself or not [27].

Real or apparent danger:

The apprehension of death or grievous hurt which was present in the mind of the accused to enable him to invoke the aid of private defence is to be ascertained objectively with reference to events and deeds at the time of the offence and the surrounding circumstances [28].

• Intention of Rape: If a person feels that the other person is committing assault with an intention of rape; the death can be committed for self-defence. In the case of State of orissa v. Nirupama Panda [29], the victim entered into the house of accused and tried to rape her. There was a scuffle between them and the accused lady finally stabbed the man and he died. She was not held liable because she was acting in her right of private defence.
• Intention of satisfying unnatural lust: If a person is committing assault with an intention of satisfying his unnatural lust; the other person can exercise his right of private defence to the extent of causing the death of that person. It has been held in the case of Indu Kumari Pathak v. S. K. Pathak [30] that if a wife refuses to submit to her husband for cohabitation, the husband is not expected to use force to make the wife to sexual intercourse. The husband has no right to cause injury to his wife in enforcing sexual intercourse and wife has the right of private defence to retaliate the force used on her [31].
• Intention of kidnapping or abduction: If a person feels that the other person is acting with an intention of kidnapping or abducting him or any other person, he may use his right to cause death of kidnapper.
• Intention of wrongful confinement: If a person feels that the other person is intending to wrongfully confine him or any other person and if the person is confined, he will not be able to escape or take help of public authorities for his release. In this case, he can exercise his right of private defence to cause death of another person.
• Act of throwing or attempt to throw acid: This provision was not present in the original provision but observing the increasing rates of acid attack, this condition was added after recommendations of Justice J. S. Verma Committee [32] under which a person, in certain circumstances may exercise his right of private defence to voluntarily cause harm or death to the assailant.

If a person is in fear that other person is going to throw acid or is attempting to throw acid and this may cause grievously hurt; He /she can exercise his/her right of private defence to cause death of that person. The act of throwing or attempting to throw acid is an offence under Section 326A and 326B of the Indian Penal Code.

The right of self-defence to cause death and the doctrine of necessity

The doctrine of necessity states that if an act is an offence, it will not be considered as one if the following conditions are satisfied [33]:

• The act was done to avoid other harm which could not be avoided otherwise. If that situation was not avoided, it would have inflicted upon him or another person’s body or property, inevitable and irreparable evil.
• The force inflicted was reasonable as per the necessity
• The evil inflicted was proportionate to the evil avoided

As stated in KENNY on Outlines of Criminal [34], where the man has inflicted harm upon others person or property for the purpose of saving himself or others from greater harm, he is saved under this defence.

One person, in private defence can kill any number of aggressors to protect himself alone. private defence overlaps the doctrine of necessity. Unlike necessity, the private defence does not. [35]

What is the extent of private defence against body in a situation which is not mentioned in the seven categories of Section 100? (Section 101)

If there is any situation which is not mentioned in Section 100, the person cannot exercise his right of private defence against the body to cause death of any person. He can only exercise the right to the extent of causing any other harm or injury except death.

In the case of Mahinder Pal,[36] when small mischief was committed in the factory by the workers, the owner was not justified in doing his act when he shot dead one of the workers.

When does the right of private defence Commences, and ends? (S. 102)

Section 102 deals with the commencement and continuance of right of private defence with respect to body only. The person exercising the right must consider whether the threat to his person is real and immediate or not.

Commencement: A person can exercise the right of private defence as soon as he reasonably apprehends the danger to the body. This may be sensed when any person attempts to commit an offence or threatens that he will commit an offence. The person is not expected to wait till the offence is committed. Even if the person threatens to commit the offence, it is sufficient for the other person to exercise his right of private defence.

The extent to which the right can be exercised does not depends upon the actual danger but on the reasonable apprehension of danger. The right to private defence gives right to defend one self from any reasonable apprehension of danger. The threat however must give rise to present and imminent danger and not remote or distant danger [37].

Continuance: As long as the fear of danger continues, the person is free to use his right of private defence.

It was held in the case of Sitaram v. Emperor, [38] that a person exercising the right of private defence is entitled to secure his victory as long as the contest is continued. He is not obliged to retreat but may continue to defend till he finds himself out of danger.

End: When it can be reasonably seen that the danger no longer exists, the person’s right of private defence ends. He has no such right after that. If in case he commits any hurt to other after the fear ends, he will not be immune and will be held liable for his act.

For example, Mr. A threatened Mr. B that he will kill him and moved with a sword towards Mr. B. Meanwhile, Mr. X, father of Mr. A, came in between and stopped Mr. A. Mr. A followed his order and started going back to his home. Now, the apprehension of threat on Mr. B has ended. If Mr. B attacks Mr. A now, he will not be given shelter under private defence and will be held liable for his acts.

When can a person exercise his right of private defence against Property to cause death? (Section 103)

This section postulates that in certain cases, when you have threat to a property, be it yours or someone else’s or movable or immovable property, you can exercise the right of private defence to cause death of a person.

In the case of Jagan Ram v. State, [39] the court said that whenever any offence is committed on a property, it is immaterial that the accused is the owner of the property or not. However, they cannot exercise this right to defend the property of other person if that person has entered into a free fight.

This act justifies the mentioned acts when they causes reasonable apprehension of death or grievous harm. If a person is not in possession of the property, he cannot claim any right of private defence regarding such property. Right to dispossess or throw out a trespasser is not available to the true owner if the trespasser is in the lawful possession of the property at that time. [40].

If a person is appointed to guard the property of his employer, he is protected under Section 103 if he commits homicide while defending the property from aggressors. Similarly, a person who is appointed to guard a public property enjoys the same right [41].

Cases in which the right of private defence can be exercised to the extent of causing death:

A person cannot exercise his right of private defence against the property to cause death of any person except in the following cases:

• Robbery: Robbery, as per section 390 of IPC, can be committed in two ways. Eventually, robbery is an advanced stage of either theft or extortion.

Theft is Robbery when at the time of committing theft, the thieves eventually:

• • Causes death, hurt or wrongful restraint
  • Attempts to cause death, hurt or wrongful restraint
  • Causes fear of death, hurt or wrongful restraint
  • Attempts to cause fear of death, hurt or wrongful restraint

Extortion is robbery when at the time of committing robbery, the person is put in fear of instant death, hurt or wrongful confinement.

• House-breaking at night: As per section 446 of IPC, if a person commits housebreaking after sunset and before sunrise, the other person has a right of private defence to an extent of causing the death of the house breaker.
• Mischief by fire: It is explained under section 436 of IPC. If any person acts to cause wrongful damage to someone’s property, it comes under mischief. Mischief by fire is considered as the most aggravated form of mischief.

If a person commits mischief by setting fire on any building, tent or vessel which is used for Human dwelling; another person has a right to cause death of that person under right of private defence.

• Theft, mischief or house-trespass with reasonable fear of death or grievous hurt: If any offence of theft, mischief or house-trespass is being committed on someone’s property, a person generally cannot cause death of the offender. But if the person is under a reasonable fear that if he will not cause death of that person, the result will be his death or grievous hurt, he can cause death of the offender.

It may be noticed in the case of Kanchan v. State, [42] just because mischief was committed by victim and his companions on the property of the accused, the accused does not have a right to cause death. There must be reasonable apprehension that death or grievous hurt may otherwise be the consequence.

In all the above-said situations, although the right of a person can be extended to causing death of the aggressor, the right cannot be exercised in excess to what is necessary.

What is the extent of private defence against property in a situation which is not mentioned in the seven categories of Section 103? (Section 104)

If there is any other threat to the property which is not mentioned above, the person cannot exercise his right of private defence to cause death to any person. However, the person can exercise his right of private defence to cause any harm other than death to the person who is doing wrong to his property. (Section 104)

Also, in cases where theft, mischief or trespass if it does not cause reasonable apprehension of death then one cannot cause death of a person.

When does the right of private defence Commences, continues and ends? (Section 105)

Under this section, what is important to be noticed is that was there a reasonable apprehension of danger to the property or not. Once there is such apprehension of danger, the right is available to the accused irrespective of the fact that the offence or the attempt for the offence has actually committed or not.

Commencement: A person can exercise the right of private defence as soon as he reasonably senses the danger to the property. For commencing the right of private defence, reasonable apprehension is important and not the fact that actual crime has been committed or not.

Continuance:

Theft: A person can exercise the private defence till:

• The offender has not withdrawn from the property, or
• The police assistance is not obtained, or
• The property is not recovered

If the thief has withdrawn or the property has been recovered, the person has can no longer exercise the right of private defence.

Robbery: A person can exercise his right of private defence as long as:

• The offender causes or attempts to cause death, hurt or wrongful restraint to any person, or
• The fear of death, hurt or wrongful restraint continuous

Criminal Trespass and Mischief: A person can exercise the right until the aggressors leave the field. If the trespassers use violence against the persons resisting the criminal trespass, any hurt made as an exercise of private defence over the trespassers is justified.

House Breaking by night: A person can exercise the right till the offence of housebreaking continues.

Ends: As soon as the above conditions stops operating, a person’s right of private defence cannot be exercised.

But the right of private defence against property is not extended to intellectual property such as patents, copyrights etc.

What does the Supreme Court says on the right of private defence to cause death?

The Supreme Court reviewed the law relating to the right of self-defence extending to cause death and clearly enunciated these:- [43]

1. It is not a right to take revenge. It is a right to defend.
2. It can be exercised only when the person is unable to get immediate aid from the State machinery [44].
3. This right can be extended to protect the body and property of third party as well.
4. It should not be an act of self-creation [45] but an act of necessity which causes an impending danger and should not exceed than what is legitimate and necessary[46]. One may cause such injury as may be necessary to tackle with that danger or threat” [47].
5. Where the person is exercising the right of self-defence, it is not possible to calculate the amount of force which he needs to exercise. The person exercising the right does not need to prove the existence of a right of private defence beyond reasonable doubt [48].
6. The right of private defence is recognized under the law but within certain reasonable limits [49].
7. Even if the accused does not plead self-defence, it is open to the Court to consider that such circumstances might exist [50].
8. The fight of self-defence commences as soon as reasonable apprehension arises, and continues till such apprehension lasts [51].
9. There is nothing which lays down in absolute terms and in all situations that the injuries incurred by the accused have to be explained! [52]’.
10. Once the reasonable apprehension disappears, the right of self-defence is not available anymore [53].
11. The plea of reasonable apprehension is a question of fact which the court finds out through certain facts and circumstances [54].
12. It is unrealistic to expect a person under assault to step by step modulate his defence [55].

Right of private defence against reasonable fear of death in case where there is a risk of harm to innocent person (Section 106)

Where a person can reasonably foresee that there is fear to his life but if he exercises the right of private defence, any innocent person may get hurt; he has the right to exercise such right. In case he hurts an innocent person while exercising his right of private defence; he will not be held liable for this act.

Section 106 contemplates an assault which reasonably causes apprehension of death and therefore contemplates exercise of the right at the risk of harm to innocent person [56].

What are the Exceptions to the rule of private defence? (Section 99)

Act of a public servant or under the direction of a public servant:

A person cannot exercise his right of private defence if the following conditions are satisfied:

• There was no fear of death or grievous hurt
• The act was done or attempted to be done by a public servant or under the direction of public servant
• The public servant was acting in good faith
• The public servant was under colour of his office
• It does not matter if the act or direction was justified by law or not

Section 99 specifically says that there is no right of private defence against an act which does not cause reasonable apprehension of death or grievous hurt, if done or attempted to be done on the direction of a public servant acting under good faith under the colour of his office. The protection extents to acts which are not even justified by law [57].

However, there is a difference between acts which are not strictly justified by law and acts which are wholly illegal. If a public servant acts without jurisdiction, it cannot be said that he acted in good faith and his act should be protected even if it is not justified by law. The law does not protect illegal acts and the acts committed by officers without jurisdiction. ‘Act not justified by law does not cover an act which is wholly illegal and totally without jurisdiction. Section 99 Applies to acts where jurisdiction is wrongly applied but not in cases where jurisdiction is absent [58].

When a person has time to recourse:

If a person has reasonable time to have recourse to the protection of the public authorities; he has no right to use its private defence. For example, if a person is threatened that he will be killed after three days, he has sufficient time to inform the police. If in case he waits for the person who threatened him and shot him dead. He cannot say that he was using his right of private defence.

A per the Supreme Court of India, when a person has time to get recourse and there is no need to take law in hands, right of private defence cannot be exercised [59].

This does not mean that a person must run away to have recourse of the public authorities when he is attacked instead of defending himself [60].

In the case of Jai Dev v. state of Punjab, [61] the Supreme court said that “In a civilized society, the state is assumed to take care of person and properties of Individual. This, however, does not mean that if a person suddenly faces an assault, he must run away and protect himself. He is entitled to resist the attack and defend himself.”

The law of private defence itself states that there is no right of private defence available unless the situation was so urgent that there was no time to have recourse to the protection of public authorities. The urgency of the situation must naturally depend upon several facts and circumstances. These circumstances may include:

• Immediate danger to person or property that if it is not immediately protected, would be lost by the time the protection from public servants is obtained.
• Reasonable apprehension of the danger to person or property arises out of committed, attempted or threatened crime. The act was going to affect person and property and justifies the particular injury inflicted.

When the act of private defence extends to inflicting of more harm than it is necessary to inflict for the purpose of defence:

The right of private defence is restricted to not inflicting more harm than necessary for the purpose of defence. To determine the amount of force which was necessary to be inflicted, the facts and circumstances are needed to be considered. There is no protection available in case the harm is inflicted unnecessarily and is much extended than what was reasonable [62]. For instance, if a person is going to slap you, you cannot shoot the person with a gun in self-defence.

There have been instances where the force inflicted was more than necessary. Some of them are:

• A person killed old woman found stealing at night [63]
• A person caught a thief at night and deliberately killed him with a pick-axe [64]
• A thief was caught committing housebreaking and was subjected to gross maltreatment [65]

The right of private defence arises when an aggressor has struck or a reasonable apprehension of a grievous hurt arises depending upon the facts of each case. But such a right in no case extends to the inflicting of more harm than is necessary to inflict for the purpose of defence [66].

Exception to the exception of right of private defence!

• If the person who uses his right of private defence over a public servant did not know or had no reason to believe that he is a public servant; he can exercise his right. For example, Mr. X saw Mr. A was followed by an unknown person with a gun. Mr. X hit that unknown person in order to save Mr. A. Later, it is revealed that the unknown person was Mr. Z, a police officer. Since Mr. Z was not in his uniform, Mr. X did not know and has no reason to believe that he is a public servant. Therefore, Mr. X’s right of private defence was justified.

• If the person who uses his right of private defence against a person who was acting under the direction of public servant; his right of private defence cannot be taken if:
  • He did not know that the person is acting under the direction of a public servant
  • He has no reason to believe that the person is acting under the direction of a public servant
  • The person does not state that he is working under such authority
  • If the person has the authority in writing and he did not produce such authority, if demanded

Bonafied Act: Even if the act of a public servant is not justified by law, the right of private defence cannot be exercised if he acts bonafied and under the colour of his office. But in case the officer is acting unlawfully, he cannot be said to be acting in discharge of his duties.

Knowledge of identity of public officer and his authority: In order to establish this condition, it is necessary that the accused must be sure that the person is a public officer.

In case of Emperor v. Abdul Hamim, policemen raided to the house of accused at night. The accused was sleeping and was awakened by some noise and rushed out of the room. The policemen fired at him and he fired back not knowing who they were. It was held that the accused was under a mistake of fact with regards to the identity of the officers. This gave him the right to private defence to save his body and property from trespassers.

Note: Even if the accused denies that he has killed the accused, if there is sufficient evidence to show that the actions of the accused comes under self-defence, the court cannot deny the benefit of the privilege of private defence.

Conclusion

The right of private defence has been recognised in law in almost all the countries today. It is a right of a person to defend body and property of himself and others. If someone commits an act in this process, it is no offence. Subject to limitations and conditions, it a right of every individual. The law has given liberty to a person in lieu of private defence to even cause death in certain cases. This is because the law has itself has accepted that self protection is the primary duty of every individual. Law will not be able to help someone who is not capable of helping himself when something wrong happens to that person.

References

1. SARTHAK SHARMA, ABUSE OF THE RIGHT OF private defence, MANUPATRA, MIGHTYLAWS.IN
2. JUSTICE K T THOMAS & M A RASHID, RATANLAL & DHIRAJLAL THE INDIAN PENAL CODE. 553 (33RD ed. 2016).
3. JUSTICE K T THOMAS & M A RASHID, RATANLAL & DHIRAJLAL THE INDIAN PENAL CODE. 553 (33RD ed. 2016).
4. Backwford v. Queen, (1988) 1 AC 130 PC per LORD GRIFFITHS at p. 144
5. JUSTICE K T THOMAS & M A RASHID, RATANLAL & DHIRAJLAL THE INDIAN PENAL CODE. 554 (33RD ed. 2016).
6. Babulal Bhagwan Khandare v. State of Maharashtra, (2005) 10 SCC 404
7. Mano Dutt v. State of UP, (2012) 4 SCC 1983
8. V. Subramani and Anr. v. state of Tamil Nadu, (2005) 10 SCC 1983
9. Puran Singh v. state of Punjab, 1975 4 SCC 518
10. The Indian Penal Code, 1860
11. JUSTICE K T THOMAS & M A RASHID, RATANLAL & DHIRAJLAL THE INDIAN PENAL CODE. 559 (33RD ed. 2016).
12. JUSTICE K T THOMAS & M A RASHID, RATANLAL & DHIRAJLAL THE INDIAN PENAL CODE. 561 (33RD ed. 2016).
13. State of UP v. Ram Swarup, AIR 1974 SC 1570
14. Chacko v. State of Kerala, 2001 CrLJ 146
15. Subbanna Goundar v. Emperor, 1935 Mad WN 1228
16. Goriesanker v. Sheikh Sultan
17. Gopal and Anr. v. State of Rajasthan, (2013) 2 SCC 188
18. JUSTICE K T THOMAS & M A RASHID, RATANLAL & DHIRAJLAL THE INDIAN PENAL CODE. 579 (33RD ed. 2016).
19. State of Orissa v. Rabindra Nath, 1973 CrLJ 1686
20. JUSTICE K T THOMAS & M A RASHID, RATANLAL & DHIRAJLAL THE INDIAN PENAL CODE. 625 (33RD ed. 2016).
21. JUSTICE K T THOMAS & M A RASHID, RATANLAL & DHIRAJLAL THE INDIAN PENAL CODE. 625 (33RD ed. 2016).
22. KUDRAT. RIGHT OF private defence. ACADEMIKE. (February 14, 2015).
23. KUDRAT. RIGHT OF private defence. ACADEMIKE. (February 14, 2015).
24. Nga Chit Tin v. King, AIR 1939 Rang 225
25. JUSTICE K T THOMAS & M A RASHID, RATANLAL & DHIRAJLAL THE INDIAN PENAL CODE. 631 & 632 (33RD ed. 2016).
26. Raja Ram v. State of UP, 1977 All Cr C 25
27. JUSTICE K T THOMAS & M A RASHID, RATANLAL & DHIRAJLAL THE INDIAN PENAL CODE. 635-636 (33RD ed. 2016).
28. JUSTICE K T THOMAS & M A RASHID, RATANLAL & DHIRAJLAL THE INDIAN PENAL CODE 638, 639 (33RD ed. 2016).
29. State of orissa v. Nirupama Panda, 1989 CrLJ 621 (Ori)
30. Indu Kumari Pathak v. S. K. Pathak, (1983) 2 DMC 64 (Raj)
31. Shigni v. State of Haryana, 1969 CrLJ 220
32. JUSTICE J. S. VERMA COMMITTEE. PARA 4 & 9. CHAPTER 5. 146 TO 148
33. ARCHBOLD ON PLEADING, EVIDENCE AND PRACTICE IN CRIMINAL CASES. 1040 (41st ed.).
34. KENNY ON OUTLINES OF CRIMINAL LAW. 72, 73 (19th ed.)
35. GLANVILLE WILLIAMS ON TEXTBOOK OF CRIMINAL LAW. 603 (2nd ed.)
36. Mahinder pal, 1979 CrLJ 584 (SC)
37. Deonarain v. State of UP, 1973 scc (Cr) 330
38. Sitaram v. Emperor, AIR 1973 SC 473
39. Jagan Ram v. State, 2014 CrLJ NOC 483
40. private defence: A Right Available To All People In India Written by: Mohi Kumari
41. JUSTICE K T THOMAS & M A RASHID, RATANLAL & DHIRAJLAL THE INDIAN PENAL CODE. 658 & 659 (33RD ed. 2016).
42. Kanchan v. State, 1982 CrLJ 1633 (All)
43. 116. DR. MUKUND SARDA. Right of private defence-Analysis of Supreme Court ruling in the light of Darshan Singh v. State of Punjab. CRIMINAL LAW JOURNAL. 1330 (oct. 2010)
44. State of Orissa v. Rabindranath Dalai & another, (1973) Cri LJ 1686 (Ori)
45. Laxrnan Sahu v, State of Orissa AIR 1988 SC P. 83 : 1988 Cri LJ 188
46. Puran Singh v. State of Punjab, 1975 Cri LJ 1479: AIR 1975 SC 1674
47. Kashrniri La! v. State of Punjab, 1996 Cri LJ 4452 : AIR 1997 SC 393
48. James Martin v. State of Kerala (2004) 2 SCC 203
49. Gotipulla Venkata Subramanyam v. State of Andhra Pradesh, AIR 197JSC 1079
50. Munshi Ram & others v. Delhi Administration, i968 Cri LJ 806 : AIR 1968 SC 702
51. State of Madhya Pradesh v. Ramesh, AIR 2005 SC 1186: 2005 Cri LJ 6)2.
52. Triloki Nath & others v. State of Uttar Pradesh, AIR 2006 SC 32l
53. Jai Dev v, State of Punjab, AIR 1963 SC 612: 1963 (1) Cri LJ 495
54. Buta Singh v. State of Punjab, AIR 1991 SC 1316: 1991 Cri LJ 1464
55. Vidya Singh v. State of Madhya Pradesh AIR 1971 SC 1857 : 1971 Cri LJ 1296.
56. JUSTICE K T THOMAS & M A RASHID, RATANLAL & DHIRAJLAL THE INDIAN PENAL CODE. 672 (33RD ed. 2016).
57. Kanwar Singh v. Delhi Administration, AIR 1965 SC 871
58. Sawal Seth v. Emperor, AIR 1933 Pat 144
59. Lala Ram v. Hari Ram, (1969) 3 SCC 173
60. Alingal Kunhinayan, (1905) 28 Mad 454
61. Jai Dev v. state of Punjab, AIR 1963 SC 612
62. Sheo Lachan v. State of UP, 1971 All Cr R 91
63. Gokool Bowree, (1866) 5 WR (Cr) 33
64. Durwan Geer, (1866) 5 WR (Cr) 73
65. DhununjaiPoly, (1870) 14 WR (Cr) 68
66. JUSTICE K T THOMAS & M A RASHID, RATANLAL & DHIRAJLAL THE INDIAN PENAL CODE. 621 (33RD ed. 2016).
67. Puran Singh v. state of Punjab, 1975 4 SCC 518
68. JUSTICE K T THOMAS & M A RASHID, RATANLAL & DHIRAJLAL THE INDIAN PENAL CODE. 598 (33RD ed. 2016).

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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 concept of gift under Islamic law, the various formalities of a gift and the differences between the laws relating to gift and will under Islamic law.

Introduction

A Muslim can devolve his property in various ways. Muslim law permits the transfer of property inter vivos (gift) or through testamentary dispositions (will). A disposition inter vivos is unrestricted as to quantum and a Muslim is allowed to give away his entire property during his lifetime by gift, but only one-third of the total property can be bequeathed by will. Conventionally, a gift, being a transfer of property is governed by the Transfer of Property Act, 1882.

But Chapter VII of the Transfer of Property Act, 1882 regulating the gifts does not apply to the ‘Muslim Gifts’ or the ‘Hiba’. Although there is no such difference between a gift made by a non-muslim or a Muslim yet, the formalities of Hiba are different from that of a gift made by a non-muslim. Therefore, Hiba is governed by the Muslim Personal Law.

Meaning and Definition of Gift

A gift is generally a transfer of ownership of a property by a living person to another living person without any consideration. In Islamic law, gifts are known as ‘Hiba’. To be very precise, gift implies to an extensive overtone and appertain to all kind of transfers of ownership not involving any consideration. On the other hand, the term ‘Hiba’ includes a narrow connotation. It is basically transferred inter vivos i.e. between living person.

According to Hedaya– “Hiba is an unconditional transfer of ownership in an existing property, made immediately without any consideration.”

According to Ameer Ali– “A Hiba is a voluntary gift without consideration of property by one person to another so as to constitute the donee the proprietor of the subject-matter of the gift.”

According to Mulla– “A Hiba is a transfer of property, made immediately and without any exchange by one person to another and accepted by or on behalf of the latter.”

According to Fyzee– “Hiba is the immediate and unqualified transfer of the corpus of the property without any return.”

Salient Features of a Hiba

After anatomizing the definitions and meaning, some prominent features of Hiba emerge as follows:

1. Hiba is a transfer of property by act of the parties and not by operation of law. It means that any transfer of property done by the court of law or any transfer of ownership by the Muslim law of inheritance will not be considered as Hiba.
2. Under Hiba, a living Muslim voluntarily transfers the ownership of any property to another living person. Hence, it is a transfer inter vivos.
3. The transferor transfers ownership of the property in absolute interest and the transferee gets the complete title in respect of the property given to him. Conditions, restrictions or partial rights in the gifted property are averse to the concept of Hiba under Islamic law.
4. Hiba is operative with immediate effect and deprives the transferor of his control and ownership over the property. Moreover, as the property is passed immediately to the transferee, the property must be in existence at the time when the gift is made. A gift made for a property which will exist is future is termed as void.
5. A Hiba is a transfer of property without any consideration. If anything of any value is taken by the transferor in return or exchange, such a transfer of property is not a gift.

Competency of the Donor: Capacity and Right

A person who makes the declaration of a gift is called a donor. A donor must be a competent person to make a gift. Every Muslim, male or female, married or unmarried, who has attained the age of majority and has a sound mind is a competent donor. For the purpose of making a gift, the age of majority is the attainment of 18 years and 21 years if he is under a certificated guardian.

Capacity to make a Hiba

Mental capacity: A person who is of sound mind and has the mental capacity to understand the legal implications of his act is eligible to make a gift. However, a gift made by a person of unsound mind during lucid intervals is a valid gift. Also, the donor must be free from any coercive or fraudulent influence while making a gift.

In the case of Hussaina Bai v. Zohara Bai[1], the validity of a gift made by parda-nasheen ladies was declared by the court. In this case, a parda-nasheen Muslim lady was brought from Nagpur to Burhanpur on an excuse that her brother-in-law was seriously ill. After reaching the place, she had a fit of hysteria, and soon after it, she was made to sign a gift deed without informing her the content of the deed and no opportunity was given to her to take an independent decision. The court held that-

“When a gift is made by a parda-nasheen lady, it is important to establish that the consent of the lady was free and she made the gift on her independent advice. The burden to prove that the gift was made free from compulsion lies on the donee. In this case, the deed was executed from the lady under compulsion, it was not her voluntary act, and hence, the deed was held invalid.”

Financial Capacity: According to the Hanafi view, if a person is under insolvent circumstances, he is allowed to make a gift. However, the Kazi has the power to declare any gift as void if it is made with a view to defraud the donee. The Indian courts have accepted the view of the Hanafi school that from the fact of indebtedness or embarrassing financial circumstances of the donor, it cannot be inferred that the donor has fraudulent intentions.

So, in every gift, there must be a bona fide intention on the part of the donor to transfer property to the donee. Evidently, if a gift is made with a malafide intention to defraud the donee, the gift is invalid.

Right to make a Hiba

Capacity to make a gift is not solely enough. The donor must also have a right to make a Hiba. A Muslim has a right to gift only those properties of which he has the ownership. If he is simply a tenant in a house, he is not allowed to gift that house to someone because he does not have the ownership of that house. Such a gift is considered as invalid.

However, a Muslim has a right to gift away all his properties which are under his ownership at the time of declaration of the gift. The transfer of the property by the donor must be in the absolute interest of the donee. Therefore, it is imperative that the donor himself has the ownership of that property which he intends to pass on to the donee.

Competency of the Donee

The person in whose favour the gift is made is known as the donee. For being a competent donee, the only essential requirement is that a donee must be any person in existence at the time of the making of a gift. He may be a person of any religion, sex, or state of mind. Thus, a Muslim can make a lawful Hiba in favour of a non-muslim, female, minor or an insane person.

Child in Womb: A child in the mother’s womb is a competent donee provided that it is born alive within six months from the date on which the gift was made. If after the declaration of the gift the child dies in the womb or an abortion takes place, the gift becomes void. Also, the child must be in existence in the mother’s womb at the time of the making of the gift. If a child is not in the mother’s womb or the conception takes place after the declaration of the gift, such a gift is void ab initio.

Juristic Person: A juristic person includes a firm, corporation, company, association, union, university or any other organization. A juristic person is presumed to be an adult of sound mind like a human being in the eyes of law and hence, is a competent donee in whose favour a gift can be made. A gift in favour of a mosque, temple or a school is valid.

Two or more Donees: A donee may be an individual or a class of persons. In case the donee is a group of people, all the people in that particular group must be ascertainable.

The Subject matter of Hiba

Islamic law does not make any distinction between ancestral or self-acquired or between movable or immovable property as far as the concept of Hiba is concerned. Any form of the property upon which the dominion can be exercised may constitute the subject-matter of the Hiba. Both incorporeal and corporeal property can be the subject-matter of a Hiba.

Similarly, a gift can be made of property on lease, a property of attachment or any actionable claim. Unlike the concept of the will or wasiyat under Islamic law in which only one-third of the total property can be bequeathed by a will, a Hiba or gift can be made of the entire property.

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Formalities of a Hiba

It is often supposed that the word ‘gift’ connotes the exact identical meaning as the term ‘Hiba’. A gift is a broad and generic concept whereas Hiba is a narrow and well-defined legal concept. Juristically, in Islamic law, a Hiba is treated similar to a contract consisting of an offer to give something on the part of donor and acceptance on the part of the donee. Thus, to make a Hiba three essential formalities have to be fulfilled.

1. A declaration of gift by the donor
2. Acceptance of the gift by the donee
3. Delivery of possession by the donor and taking of possession by the donee

These three formalities are discussed in detail below:-

Declaration of gift by the Donor

Declaration simply signifies the intentions of the donor to make a gift. It is a substantiation of the intention of the donor to transfer the ownership of the property to the donee.

Oral or Written: The donor may declare a gift of any kind of property either orally or through a written deed.

In the case of Md. Hesabuddin v. Md. Hesaruddin[2], a Muslim woman made a gift of her immovable properties in favour of her son. The gift was written on ordinary paper and was not a registered deed. The court held the validity of such gifts in this case as-

“ Under Muslim law, writing is not essential for the validity of a gift whether it is moveable or immovable property. Therefore, the gift, in this case, was held to be valid because writing and registration of a gift are not mandatory requisites to make a valid gift.”

Express Declaration: A declaration of a gift must be expressly made in clear words that the donor is conceding his ownership of the property completely. A gift made in ambiguous words is null and void.

In Maimuna Bibi v. Rasool Mian[3], it was held that-

“ It is necessary that the donor divest himself completely of all the dominion and ownership over the property of gift. The donor must express his explicit intention to transfer the ownership to the donee clearly and unequivocally.”

Free Consent: The consent of the donor in making the gift must be free. A declaration of a gift must be made voluntarily by the donor. Any gift made by a donor under threat, force, coercion, influence or fraud is not a valid gift.

Bona fide Intention: Mere announcement of a gift is not considered as a valid declaration until it entails the intention of the donor. Absence of real and honest intention to transfer the ownership of the property will make a gift ineffective. A gift made with an intention to defraud the donee is void. A gift without an intention may be pretence gift, colourable or Benami transaction etc. however, mere indebtedness does not affect the competency of the donor unless his malafide intention is established.

Acceptance of gift by the Donee

For the validity of a gift, it must be accepted by the donee. Acceptance manifests the intention of the donee to take the property and become its new owner. Without acceptance, the gift is considered to be incomplete. Since under Islamic law, Hiba is treated as a bilateral transaction, therefore, it is important that the proposal made by the donor to transfer the ownership of the property must be accepted by the donee.

Minor: In case the donee is minor, the acceptance on behalf of a minor can be given by the guardian of the property of the minor.

Juristic person: If a gift is made in favour of any institution or any other juristic person, the acceptance of the gift is made by either manager or any other competent authority.

Two or more Donees: Gift made in favour of two or more donees must be accepted by each and every person separately. If the share of each person is explicitly specified by the donor then, they will get the separate possession in the same way as declared by the donor. But if the share under a gift is not specified and no separate possession is given by the donor, then also the gift is valid and the donees will take the property as tenants-in-common.

Delivery of Possession

The formalities laid down for gifts under Section 123, Transfer of Property Act, 1882, are not applicable to Muslim gifts. Under Islamic law, a gift is complete only after the delivery of possession by the donor and taking of possession by the donee. Thus, it is obligatory that the declaration and acceptance must be accompanied by the delivery of possession of the property.

The gift takes effect from the date when the possession of the property is delivered to the donee and not from the date when the declaration was made by the donor. Delivery of possession is an overriding facet in Islamic law. The importance is to such an extent that without the delivery of possession to the donee, the gift is void even if it has been made through a registered deed.

The donor must divest himself of not only the ownership but also the possession in favour of the donee in order to make a gift complete. Muslim law does not presume transfer of ownership rights from donor to a donee without the explicit delivery of possession of the property.

In Noorjahan v. Muftakhar[4], a donor made a gift of certain property to the donee, but the donor continued to manage the properties and takes the profit himself. Till the death of the donor, no mutation was made in the name of the donee. It was held by the court that since no delivery of possession was made, the gift was incomplete and ineffective in nature.

Mode of Delivery of Possession

The mode of delivery of possession totally depends upon the nature of the property gifted. Legally, the donor is required to do something by which the donee gets the physical control over the property in order to constitute the delivery of possession.

A donee is said to be in possession of a property when he is so placed that he can exercise exclusive dominion over it and gain the benefits out of it as is usually derived from it. Therefore, the delivery of possession can be either actual or constructive i.e. symbolic.

Actual Delivery of Possession

Actual delivery means when a property is physically handed over to the donee. This type of delivery is possible only with tangible properties (movable as well as immovable) which are capable of being physically possessed and given.

Where the property is movable, it must be actually transferred and handed over to the donee.

For example, if a donor gifts a car to the donee, he must give the keys of the car and all other documents of the car to the donee so that he can use it. Mere declaring the gift on a document is not enough. The property must be handed over immediately.

Similarly, where the property is immovable, its actual delivery of possession is compulsory. But since it cannot be picked up and handed over, the donor may delivery such property by giving all the documents related to that property and by placing it to the donee so that he can use it as he likes.

For example, if a donor gifts the house in which he is residing, he must vacate it and ask the donee to live in it in order to make his gift valid. In case of a garden, the donor may give full dominion to the donee to use the garden in whichever way he wants including all the rights to enjoy the fruits and flowers.

Constructive Delivery of Possession

Constructive delivery of possession means a symbolic transfer of property. In this mode of delivery, the donor does some act due to which it is legally presumed that the possession has been delivered to the donee. Such type of delivery of possession takes place only when the property is of such a nature that it is not possible to delivery through actual mode. Constructive delivery of possession is sufficient to constitute a valid gift under two circumstances only:

1. Where the property is intangible.
2. Where the property is tangible but, under the situation, its actual delivery of possession is not possible.

When the constructive delivery of possession is completed?

When the possession of the movable property is delivered, the exact time of delivery of possession can be easily determined. The problem arises in the case of immovable or incorporeal properties where it is onerous to prove the exact time of the delivery of possession. However, in India, there are two judicial views regarding the exact time of the completion of delivery of possession.

• Benefit Theory: Under this view, it is believed that a constructive delivery of possession is complete as soon as the donee starts getting the benefits out of the gifted property. Where even after the declaration of the gift, the donor is enjoying the benefits, the gift is not complete. But, if the donor enjoys the benefits, it is deemed that the delivery of possession has taken place.

This approach lays more emphasis on the facts of donee’s benefits from the gifted property instead of the act which symbolises constructive delivery of possession.

For example, if a donor gifts a rented house to the donee, the delivery of possession is considered to take place from the date on which the donee gets the rent from the tenants.

• Intention Theory: This approach supports the view that the delivery of possession is completed on the date on which the donor intent to transfer the possession to the donee. The intention of the donor can be proved on the basis of the facts and circumstances which vary from case to case. In correspondence to the intention of the donor, some potent facts must be established which exhibit that the donor has physically done everything he could in the given circumstances.

In other words, the court accepts that the delivery of possession is deemed to have taken place only when the bona fide intention of the donor to complete the gift is thoroughly established and it is not important to prove that from which date the donee reaps the benefits of the property given.

For example, if the donor and donee are living in the same house which constitutes the subject-matter of the gift, the donor’s intention to transfer the possession to the donee is sufficiently proved if the donee has been authorised to manage the house.

Who may challenge the Delivery of Possession?

It is not at all necessary to prove separately in each and every case that the delivery of possession has been completed until and unless the validity of gift is challenged by the donor, the donee or any person legally authorised to claim on behalf of them.

In the case of Y. S. Chen v. Batulbai[5], a Muslim woman made a gift of a portion of her house to her daughter. The gifted portion of the house was occupied by a tenant who used to pay the rent regularly to the daughter (donee) recognising her as the landlady. After some time, the tenant refused to recognise the daughter as his landlady on the ground that the gift made in her favour was void because there was no delivery of possession. It was held by the court that –

“Any objection as to the validity of gift on the ground of absence of delivery of possession cannot be raised by the tenant who is a stranger to the transaction of a gift.”

Conditional or Contingent Hiba

The contingent or conditional gifts whose operation depends upon the occurrence of a contingency. A contingency is a possibility, a chance, an event which may or may not happen. Under Islamic law, conditional or contingent gifts are void.

For example, if a Muslim made a gift to his wife for life, and after her death to his children who are living at the time of his death, the gift is said to be contingent.

Revocation of Hiba

Although Prophet was against the revocation of gifts, it is a well-established rule of the Islamic law that all voluntary transactions, including Hiba, are revocable. Different schools have different views with regard to revocation. The Muslim law-givers classified the Hiba from the point of view of revocability under the following categories:

• Revocation of Hiba before the delivery of possession

All gifts are revocable before the delivery of possession is given to the donee. For such revocation, no orders of the court are necessary. As discussed above that under Muslim law, no Hiba is complete till the delivery of the possession is made, and therefore, in all those cases where possession has not been given to the donee, the gift is incomplete and whether it is revoked or not, it will not be valid till the delivery of possession is made to the donee.

It implies that the donor has changed its mind and not willing to complete the gift by delivery of possession.

For example, X, a Muslim, makes a gift of his car to Y through a gift deed and no delivery of possession has been made to Y. X revokes the gift. The revocation is valid.

• Revocation after the delivery of possession

In this situation, a Hiba can be revoked in either of the following ways:

1. With the consent of the donee
2. By a decree of the court.

Mere declaration of revocation by the donor or filing a suit in the court or any other action is not enough to revoke a gift. The donee is entitled to use the property in any manner until a decree is passed by the court revoking the gift.

Gift to Minor

Any gift made in favour of a minor or insane person is valid. They may not have the capacity to understand the legal consequences but they are persons in existence and thus, are competent donee. But such gifts are valid only if accepted by the guardian of the minor or insane donee. A gift is void without the acceptance by the guardian.

For the purpose of acceptance of the gift, the guardian of a minor or insane donee are as under in the order of priority:

1. Father
2. Father’s executor
3. Paternal grandfather
4. Paternal grandfather’s executor

Therefore, in the presence of the father, the paternal grandfather is not allowed to accept the gift on behalf of the minor or insane and so on. If all the above-mentioned guardians are not present, then the gift is accepted by the ‘guardian of the property of minor or insane’.

If a guardian himself makes a gift in favour of his ward, he will declare the gift acting as a donor and has the capacity to accept the gift as the guardian of the minor or insane.

It is to be noted here that the mother is not recognized as the guardian of the property of her minor child. Hence, she is not entitled to accept the gift on behalf of her minor child.

Where a gift is made to a minor or lunatic, the gift is complete only if the guardian has taken the actual or constructive delivery of possession of the property on behalf of such persons. If the possession is taken by any other person who is neither a legal guardian nor a de facto guardian, the gift becomes ineffective and void.

Katheessa Ummand v. Naravanath Kumhamuand[9] is a leading case on this point.

Facts: In this case, a Muslim husband made a registered gift to his wife who was a minor. The gift was accepted by the donee’s mother. Unfortunately, after two years, the husband died and soon after it the donee (wife) also died. The validity of the gift was challenged by the elder brother of the donor (husband) on the ground that there was no delivery of possession as a gift to the minor was accepted by her mother who is not a legal guardian according to the Islamic law.

Issue: The question before the court was whether a gift by a Muslim husband to his minor wife and accepted by the mother on behalf of the minor wife, is valid?

Held: The court, in this case, held that it is a well-established rule under Islamic law that mother is not a legal guardian of the minor’s property, therefore, she is incompetent to take the delivery of the possession on behalf of the minor donee. But, in case there is no legal guardian to accept the gift, the completion of the gift for the benefit of the minor has the utmost significance.

If the donee had already attained the age of puberty, the gift is valid even if it is accepted by a person who has no authority to accept the gift on behalf of a minor. In this case, the gift was held to be valid although the delivery of possession was not accepted by any competent guardian on behalf of minor but since the minor had reached the age of discretion (fifteen years) and was competent to accept the gift herself.

When Delivery of Possession is not necessary

Islamic law of gift binds great significance to delivery of possession especially in case of immovable property. The other essentials of Hiba will have no legal effect unless accompanied by delivery of possession. But there are certain exceptions to this general rule. The following are the situations under which a gift is valid without actual or constructive delivery of possession:

• Donor and donee live jointly in the gifted house: Where the subject-matter of a gift is a house in which the donor and donee both resides together, any formal delivery of possession is not necessary to complete the gift. Since the donee is already continuing the possession of the house in some other capacity, there is no need to give the donee the same possession again in a different capacity.

But, there must be some conspicuous act or apparent activity on the part of the donor that indicates the bona fide intention of the donor to transfer the possession.

In Humera Bibi v. Najmunnissa[6], a Muslim lady executed a gift deed of her house in favour of her nephew who was living with her in the same house. The property was transferred in the name of the nephew but she continued to live with him as before. But after the making of the gift, the rents were collected in the name of the donee. It was held that “ the gift was valid although there was neither any physical transfer to the donee nor any physical departure of the donor from the house.”

• Gift by a husband to wife or vice versa: where a gift of immovable property is made by a husband to wife or vice versa, no transfer of possession is mandatory. The reason behind this is that a joint residence is an integral aspect of the relationship of marriage. To perform the matrimonial obligations it is necessary the husband and wife must live together.

In the case of Fatmabibi v. Abdul Rehman[7], the husband made an oral gift of a house to his wife. Later, the deed was also registered. The stepson, who lived with his wife in the gifted house, challenged the validity of the gift on the ground that there was no delivery of possession of the house. It was held that –

“Oral gift in presence of two persons amounts to the declaration, mentioning the name of the wife in the registration deed amounts acceptance and mutation in the name of the wife at the instance of the wife amounts sufficient delivery of possession keeping in view the relationship between the parties.”

In Katheessa Ummand v. Naravanath Kumhamuand[8], the Supreme Court held that “ where a husband made a gift in favour of his minor wife by a registered deed and possession is handed over to the mother of minor wife, the gift was valid. Since the wife had no father and grandfather alive, nor any executor, the delivery of the gift deed to her mother instead of the minor wife herself did not invalidate the gift, as the intention was well established.”

• Gift by Guardian to Ward: In case a guardian makes a gifts in favour of his ward, he declares the gift as donor and accepts the gift on the part of the donee, the delivery of possession is not compulsory provided that there is a bona fide intention on the part of the guardian to divest his ownership and give it to his ward.
• Gift of property already in possession of donee: The basic objective behind the concept of delivery of possession is to give the physical dominion over a property to the donee. But, anyhow if the donee already has possession of the property given by donor under a gift, mere declaration and acceptance are enough to complete the gift. No formal delivery of possession is required to complete the gift.

Doctrine of Mushaa

The word ‘Mushaa’ has an Arabic origination which literally means ‘confusion’. Under Islamic law, Mushaa denotes an undivided share in joint property. It is, therefore, a co-owned or joint property. If one of the several owners of such property makes a gift of his own share, there may arise confusion in regard to what part of the property is to be given to the donee. Practically, it is too difficult to deliver the possession of a joint property if a gift is made by a donor without partition of the joint property.

To circumvent such confusion, the Hanafi Jurists have developed the doctrine of Mushaa. Gift of Mushaa i.e gift of a share in the co-owned property is invalid without the partition and actual delivery of that part of the property to the donee. If the co-owned property is not capable of partition, the doctrine of Mushaa is impertinent. A Mushaa or undivided property is of two kinds:

Mushaa Indivisible

It includes the property in which the partition is not possible. A gift of an undivided share (Mushaa) in a property which is incapable of being divided or where the property can be used for better advantage in an undivided condition, is valid. The doctrine of Mushaa is not applicable where the property constituting the subject-matter of the gift is indivisible. All the schools of Islamic law accept the view that a gift of Mushaa indivisible is valid without partition and the actual delivery of possession.

For example, a staircase, a cinema hall, a bathing ghat etc. comprises indivisible Mushaa properties. If these kinds of properties are divided, then their original identity will be lost.

Mushaa Divisible

Mushaa divisible is the property which is capable of division without affecting its value or character. If the subject-matter of a Hiba is Mushaa divisible, the doctrine of Mushaa is applied and the gift is valid only if the specific share which has been gifted, is separated by the donor and is actually given to the donee. However, a gift without partition and the actual delivery of possession is merely irregular and not void ab initio.

For example, a co-owned piece of land or a garden or a house is a Mushaa divisible property which can be divided by a visible mark of identification without changing its original character.

Shia law does not recognize the principle of Mushaa. According to Shia law, a gift of a share of divisible joint property is valid even if it is made without partition.

Comparison of Gift and Will

References

1. AIR 1960 MP 60
2. AIR 1984 Gau. 41
3. AIR 1992 Pat. 203
4. AIR 1970 All. 170
5. AIR 1991 MP 90
6. 1905 28 All. 17
7. AIR 2001 Guj. 175
8. AIR 1964 SC 275
9. AIR 1964 SC 275
10. https://www.lawctopus.com/academike/concept-of-gift-under-muslim-law/
11. http://www.legalserviceindia.com/articles/transfer.htm

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This article is written by Sparsh Mali, a fourth- year law student at the School of Law, UPES, Dehradun. The article explains about the evidentiary value of FIR and how FIR can be used in the Court for different purposes.

Introduction

In layman’s word, First Information Report (FIR) is the knowledge or information of any occurrence especially related to crime or the subjects which are either restricted or prohibited by law. The term FIR is not defined anywhere in our law but Section 154 & 155 of CrPC talks about the cognizance of any information related to cognizable offenses and non-cognizable offenses respectively. The purpose of FIR is to bring the law into the action of cognizance of any offence, and with the cognizance, it is the duty of the state to offer redressal to the victim and protect the society from such offences.

In, State of Haryana v/s Bhajan Lal[1] it was held that in a condition where there is an information and that information must disclose a cognizable offence. And if any such information before an officer satisfies the requirements of Section 154(1), the said police officer has no other option except to enter the substance thereof in the prescribed form.

Evidentiary Value of FIR

The evidentiary value of FIR is very important than any other statements during the process of cognizance of any offense or at the time of initiating the investigation about information recorded as per Section 154 or 155 of CrPC. But at the same time the established principle of law that FIR cannot be assumed as a substantive piece of evidence and can only be considered as an important piece of evidence. The reason for which the FIR is regarded as an important piece of evidence is- because of its nature that it is the first information of the cognizance of any offence, and it can be of very important nature as it will help in the initiation of investigation about the offences.

In, Pandurang Chandrakant Mhatre v. State of Maharashtra, it was seen that ‘it is fairly well settled that FIR is not a substantive piece of evidence and it can be used only to impeach the creditworthiness of the testimony recorded by the maker and it cannot be used for the purpose of contradicting or discrediting the testimony of other witnesses’.

Does FIR has Substantive Values or Its Just an Important Piece of Evidence?

The main reasons why FIR does not have any substantive evidentiary value:

1. Because the statements in the FIR are not made on oath.
2. Because the statements in the FIR are not made during the trial or at the time of proceedings.
3. Because the statements recorded in FIR has no cross-examination in the Court.
4. Because the statements recorded by the police officers are not admissible in court.

The reasons why FIR are treated as an important piece of evidence:

1. For corroborating the statements made by the person who recorded the FIR.
2. For cross-examination of the statements made by the person in the FIR.
3. For refreshing informer’s memory.
4. For impeaching the creditworthiness of the informer.
5. For the purpose of ascertaining the general facts like the identity of accused, witnesses, time of offenses etc.

Certain exceptions, when an FIR can be used as a substantive piece of evidence

For the purpose of corroboration and contradiction the information of the informant- Section 145 of Indian Evidence Act, talk about ‘A witness may be cross-examined as to previous statements made by him for the purpose of contradicting him’. The scope of Section 145 is to deal with the methods of contradicting the information of the informer. Under Section 153(2) of the Evidence Act, a witness may be asked any question for the purpose of impeaching his impartiality and permits oral statement to be used for contradiction. But the present Section which is Section 145 of the Indian Evidence Act, only deals with the method of contradicting previous statements of witness in writing by cross-examination. The rule will apply where a witness is not a party to the suit and would not apply when a party to the suit is examining himself as a witness.

Section 145 of Indian Evidence Act has 2 basic principles which are- According to the first part- a witness may be cross-examined as to the previous statement made by him in writing or is reduced into writing without showing the writing to him or proving the same. And the second part is intended to contradict him through cross-examination where the previous statement is in writing. The main objective of this provision is either to test the memory of witness or to contradict him by previous statements in writing.

In, Ram Chandra V. State of Haryana, the Supreme Court observed that the contents and information of the FIR can only be used for the purpose of contradiction & corroboration the facts stated by the informer or of any other witness.

Section 157 of the Evidence Act which talks about- “Procedure for investigation preliminary inquiry”. The FIR is a kind of evidence whose contradictory and creditworthiness values is only subjected to the person who lodged a FIR or the informer of the offence and the principles laid down under Section 145, 154(2) and 157 of Indian Evidence Act can’t be used for the purpose of contradicting and checking the creditworthiness of any other witness other than the person who is the informer of the offence. And these principles are usually benefiting the accused in way of contradicting and checking the creditworthiness of the informer.

And it has been held by the Apex Court of India that with regard to FIR there can only be two possibilities which are- corroborating and contradicting the informer; and hence it is observed that FIR cannot be considered as a substantive piece of evidence in any manner.

In, Hasib v/s State of Bihar[2], it was held by the Supreme Court that considering the principles of Section 157 and 145 of the Indian Evidence Act, it is quite obvious that the FIR can only be used for the purpose of corroborating or contradicting the informant the one who lodging the FIR.

In, The State of Orissa v. Makund Harijan and another[3], the Orissa High Court held that FIR can only be used to corroborate or contradict the maker of FIR. But omissions of certain important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case.

If the informant of any certain offence is accused himself, then it cannot be possibly to use the facts or information of the FIR for the purpose of corroboration or contraction because accused cannot be a prosecution witness, and he would very rarely offer himself to be a defense witness under Section 315 of the Code of Criminal Procedure. It is noted that if the F.I.R. is of a confessional nature, then again it cannot be proved against the accused as such actions are prohibited by Section 25 of the Evidence Act.

Where confession made to a police officer cannot be used or proved against a person who is accused of a certain offence. But at the same time if the accused admits his act then the F.I.R. is admissible as evidence under Section 21 of the Evidence Act. And if the F.I.R. contains not only the confession of the accused but also relates to several other matters which are relevant to the trial or the procedure, then the provisions make the latter admissible.

Though the contents of F.I.R. can be used only to contradict or corroborate the informant, still there may be cases where the contents become relevant and the F.I.R. can be used as a part of the informant’s conduct under Section 8 and 11 of the Evidence Act.

2. Statements or information by the informant as dying declaration in FIR.

The word “Dying Declaration” means any statement is written or verbal of relevant facts made by a person, who is dead or it is the statement of a person who had died explaining the circumstances of his death.

The concept of dying declaration was evolved from a legal maxim, ‘nemo mariturus presumuntur mentri’ i.e. a man will not meet his maker with a lie in his mouth. Although it may sound impractical but our law has adopted this concept and functions accordingly. Section 32(1) specifically deals with the concept of dying declaration in respect of a cause of death and it is assumed that such statements are relevant even whether the person who made them was not at the time when they were made.

In Uka Ram v. State of Rajasthan[4], the Apex Court defined dying declaration in a way that, “when a statement is made by a person in the threat of his death or as to any circumstances which cause threat or results into his death, and when the cause of his death comes in question the statements made by him are admissible as evidence, such statement in law are compendiously called dying declaration.”

The Supreme Court in deciding P.V. Radhakrishna v. State of Karnataka, Appeal[5] held that ‘the principle on which a dying declaration is admitted in evidence is indicated in the Latin maxim, ‘nemo morturus procsumitur mentri’, which means that a man will not meet his maker with a lie in his mouth. Information lodged by a person who died subsequently relating to the cause of his death is admissible in evidence under this clause.

In K.R. Reddy v. Public Prosecutor[6], the evidentiary value of dying declaration was observed as:-

“The dying declaration is admissible under Section 32 & because the statement not made on oath so that its truth could be tested by cross-examination, the court has to observe the closest inspection of the statement before acting upon it. And it is also assumed that the words of a dying man are of very serious nature because a person on the verge of death is not likely to tell lies or to connect a case to a malice prosecution of an innocent person. Once the court is satisfied that the dying declaration is true & voluntary and are not influenced, then the statements can be sufficient to prove the conviction even without further corroboration.”

The evidentiary value of FIR in the circumstances of dying declaration comes from the concept that- A dying declaration can also be recorded by public servants, or by a doctor as well, where the victim is hospitalized and is badly burnt or injured and wants to make a statement, the doctor can also record the same and make a note of that statement. Although, it is advisable that the dying declaration should be made to the magistrate itself or in the presence of magistrate but if there is a condition where no such possibility is seen then the dying declaration can also be recorded by the police officers, although the court discourages such declaration to the police officer but if the condition and circumstances are of such a nature that no other possibilities are seen, then the dying declarations written by the police officers are also considered by the courts.

In, Kapoor Singh V. Emperor [7] the court observed that the FIR lodged by the deceased person can be admissible as a piece of evidence in the court if the FIR is relating and explaining the circumstances of his death. Also in the case of Sukhar V. State of UP [8], it was observed that if the dying declaration in the FIR is not sufficient to ascertain the facts and reasons for the cause of his death, even though the FIR has enough information related to the accused and details of the incident. Then the information cannot be considered as dying declaration.

In the case of Maniram V. State of Madhya Pradesh [9], the dying declaration was recorded by the doctor but the doctor did not attest the consciousness report of the deceased and also there was no thumb signature on the dying declaration, in that case, the FIR has lost its credibility and it was difficult to rely on the dying declaration.

Conclusion

After ascertaining the provision it can be assumed that the FIR is an important report and if duly recorded provides valuable evidence. Now it can easily be considered as an important and a valuable piece of evidence in any trial either for the purpose of corroborating evidence or for contradicting witnesses, Therefore, it becomes necessary that such report to be recorded in all circumstances and it is the duty of the police officer to initiate the investigation as soon as the information is received. In the discussion of the evidentiary value of the FIR, it is also concluded that the statements recorded by the police officers are not admissible in the court of justice and hence the ascertainment of the facts by the police officer’s also comes under the umbrella of important piece of evidence but not a substantive piece of evidence. FIR can sometimes also be considered as Substantial Evidence but in most of the cases it ends up having a just value of an important piece of evidence. Hence we can assume that FIR is an important and a circumstantial piece of evidence.

References-

1. [AIR 1992 SC 604]
2. (1972) 4 SCC 773
3. (1983) Crl. LJ. 1870
4. A.I.R. 2001 S.C. 1814
5. (crl.) 1018 of 2002
6. 1976 AIR 1994, 1976 SCR 542
7. (AIR 1930 Lah. 450)
8. (1999) 9 SCC 507
9. (AIR 1994 SC 840)

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This article is written by Anirudh Vats, second year student at Rajiv Gandhi National University of Law, Patiala. This article explains the basic tenets of the Imperative theory of law, explores the relevance of Austin’s ideas in contemporary times, discusses the merits of the theory and provides a critical analysis.

Introduction

The Imperative Theory of Law was given by John Austin, an American legal philosopher who has been a huge influence on modern-day understanding of Law. His ideas about Law form the basis of defining and understanding law. Sure, his ideas have been refuted and challenged by a lot of contemporary philosophers, but they still remain relevant and remain a focal point for the understanding of Law.

Imperative Theory of Law in its simplest terms can be defined as “command of the sovereign backed by sanction”. Imperative theory says that law is whatever the political sovereign of a certain state says law is. This law needs to be backed by legitimate sanction, that is punishment or penalty for violation.

Let us explore in depth what this theory entails.

Definition of Law

“If a determinate human superior, not in the habit of obedience to a like superior, receive habitual obedience from the bulk of a given society, that determinate superior is sovereign in that society, and that society (including the superior) is a society political and independent. Furthermore, every positive law simply sand strictly: so-called, is set, directly or circuitously, by a sovereign person or body to a member or members of the independent political society wherein that person or body is sovereign or supreme.”

Simply put, Austin describes Law as flowing from a political superior to its subjects, backed with a system of sanction.

Legal Positivism

The term Legal Positivism means the attempt to establish Law as a true science. The Imperative theory of law is based on an understanding of Law which is free of moralistic notions and merely a collection of empirical rules.

Austin makes a distinction between “What Law is” and “What law should be”. For Austin, the second question is not the concern of law. Law consists of the body of rules or “commands” which are definite and objective.

This was characteristic of philosophers at the time, the academic world had been so singularly inclined towards the natural and true sciences, that everyone wanted to establish their respective fields and areas of study as a natural science. This thread of Positivism can be found in the initial stages of a lot of subjects and areas of study, like the Positivism of August Comte when he started the study of Sociology.

Legal Positivism also says that all Positive laws can be traced back to Human Lawmakers and have no divine sanction, but are rules made by humans for humans.

Idea of the Sovereign

According to Imperative theory of law, there are three conditions a person needs to meet to be considered as Sovereign in a state:

1. The Sovereign’s power must be unlimited and indivisible.
2. The Sovereign must be clearly located and easily identifiable.
3. The commands of the Sovereign must be considered Law.

The Sovereign must make it his duty to consciously formulate laws, which must be backed by sanction, to serve as “motives for compliance”. These sanctions must be coercive or alluring so as to make people obey them.

The Sovereign therefore, is a dynamic entity consisting of a legislative part as well as a judicial one. Physical presence of the Sovereign is not necessary, laws can be implemented and acted upon by the Sovereign’s agents, which may be the Police, the Judiciary or the Bureaucracy. Therefore, while the Sovereign may physically reside in an individual, its functions may be carried out by proper machinery with a definite hierarchy.

Therefore, the Sovereign is more an idea, an idea which is used as a source of legitimacy for the entire legal system in a state.

The Nature of Imperative Law

Austin divides law into two main categories :- Divine Law and Human Law.

Divine Law is law which has a transcendent source. They are inflexible, absolute and superior to man-made laws.

Human law is of two kinds: the first one is as a “Command of the Sovereign”, and the second type is formed through voluntary associations or clubs.

Law, according to Austin, follows the Hobbesian idea of being inherently coercive. He describes law as a combination of “commands and prohibitions”, which dictates what to do as well as what not to do.

Since there is no moral lens through which Austin views law, law is only meant to be obeyed. While on the surface this may seem as arbitrary and restrictive(which are valid criticisms), the issue is deeper. First of all, a value-neutral understanding of Law can ensure stability, peace and security in a nation.

Austin’s opposition to morality being a factor in law arises out of his fear that contravention and disagreement on what law is, will lead to chaos and anarchy.

Austin recognizes that for an effective legal system, you need a legitimate authority which is supreme in a nation and is accepted by people as an upright and just authority over them. When Law emanates from such an authority, people accept it and obey it, not just because there is coercive measures against that obedience, but also because there is a mutual recognition of the importance of laws, and acceptance of just authority over them.

But it is impossible to completely divorce Law from Morality. After all, the driving force of Law was to not just end anarchy and violence, but to also ensure justice, fairness and liberty. The moral convictions of law are central to its nature.

Blind obedience to law can make law oppressive and clamp down on the liberty of people. And when Austin does not allow room to criticize, deliberate or challenge the laws that are imposed on people, the Sovereign authority has no real opposition and can easily devolve into tyranny.

Therefore, the  imperative theory of Law is incomplete in the sense that it does not account for a system to check the excesses of a law making entity.

Merits of the Theory

Austin was one of the first philosophers to define law in a concrete, objective way. He established a clear flow of law between the Sovereign and the people. His theory contained a simple and universal truth, that law is created and enforced by the state, an idea which still remains relevant. His objective and clear understanding of Law ensures security, stability and peace.

Austin’s ideas are often dismissed for being too simplistic, ignorant and inadequate. But to his credit, his theories are widely cited, researched, supported and criticized till date. This is because Austin laid the basic framework for the understanding of Law. Even those who are vocal critics of Austin, admit that without his definitions and perspective of law, the modern conception of law would not have been possible. Knowingly or not, every researcher, philosopher and author theorizing about Law is in some way deriving off of Austin.

What also needs to be realized is that like every theory, the Imperative theory is also a product of its time and place. Austin lived at a time when monarchies and dictatorships were prevalent, and those who held state power, held it for life and had unquestionable authority. Modern ideas like Fundamental rights, Constitutionalism etc. had not yet been conceived. In this scenario, his clear, concise and definite explanation of Law held much more merit than it does now. Just because the relevance of his ideas has declined due to the rise of democracy, it does not mean that we need to discredit him for being a hugely influential legal philosopher and thinker.

Criticism

Ignores Customary Law

Law does not always arise from a political superior. It has existed in society without the modern conception of the state and even when people have no sovereign over them. Customs and traditions were the tools people used for social control and cooperative, civilized living.

According to the theory of Imperative Law, customs were primitive law which are not law in the real sense, and only resembled law. But the fact is, that a major source of Law is Customary law, which is rules and regulations evolved by people over time for self-governance. Without the existence of customs in society, English common law would never have come into existence, which uses customary law as its basis.

When the only source of law becomes a Political superior, it undermines the validity and importance of the rituals, customs and traditions people have evolved for themselves which form the basis for their way of living in society.

Law as Command

The first problem with law being a “command by the sovereign”, is that there is no identifiable commander in the modern state. Modern democracies are based on the idea of Separation of Powers, and authority is spread over a large number of people. Therefore, this idea becomes irrelevant in a time where monarchies and dictatorships are rare and fast disappearing.

The second problem is that most of the Law that we have at our disposal, is born out of decisions made by courts as and when questions of legal character have come up. A very small part of Law is actually made from primary or delegated legislation. Therefore, law seems to evolve out of the solution of a problem and not a “command”.

Idea of Sanction

According to Austin, the primary function of state is to use force to impose sanctions. But modern democracies have governments that serve the people and are elected by them to ensure their safety and prosperity, not use force on them. The force used by the state is not the power of the state but the willingness of the people to obey the same.

Therefore, Austin has an outdated idea of State.

The idea that sanctions can only be imposed through force is false. In International law, sanctions take up the form of Economic and Political sanctions and are achieved through international cooperation, not the use of force.

In fact, some International laws do not have sanctions at all, and yet many states abide by them because of a mutual understanding and recognition of Opinio Juris, i.e. legal obligation. This refutes Austin’s idea that sanction is an essential of Law.

Not Applicable to International or Constitutional law

International Law

Austin’s ideas are not applicable to International law because it has no Sovereign. International law is based on the principles of International recognition, cooperation, and diplomacy. There is no authority above the state. No international organization can act as a world government and assume Sovereignty over all states. Therefore, Austin’s Imperative theory does not square up with the existence of International Law.

Constitutional Law

Modern democracies are found on a constitution, in which rests the source of all the political powers of the state. Therefore, the true Sovereign in a democracy are the people, whose rights the constitution upholds. State power is temporary, granted by and taken away by the people and periodically changes hands. Therefore, the Sovereign is not the ruler, as Austin would concur, but actually the subjects of that ruler in a democracy.

Also, the constitution is the source of the legal basis of a country, and all laws that are formulated or put out in a state, are struck down if seen in contravention with the constitution.

Therefore, Austin’s ideas are not applicable in Constitutional democracies.

Disregard of Ethical elements

Justice is often described as the end of the law. Law always seeks to preserve, ensure and propogate justice, but Austin completely divorces law from any ethical concerns. This is problematic because without any ethical objectives, law can devolve into tyranny and oppression of the people, and lead to totalitarian governments controlling law according to their whims and fancies.

Salmond, a contemporary of Austin, says that a definition of Law must include both the concrete and substantive part of law along with the abstract, ethical concerns it deals with, and without any of the two components, the definition is incomplete.

Flawed Reasoning

Austin fails to explain the validity of the Sovereign. He uses flawed circular reasoning to explain sovereignty and law. He says that Sovereign is so because he commands law, and law is so because it is commanded by the Sovereign. This does not explain the legitimacy of a Sovereign.

Conclusion

Summing up, it is clear that the Imperative theory of law lays out a useful, valuable and valid interpretation of Law which sees law as positive, objective and devoid of any ethical concerns.

We established that while the theory may be widely criticized, the theory still holds immense legal and academic value.

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This article is written by Lakshay Kumar, a second-year B.A.LLB student of Delhi Metropolitan Education, Indraprastha University. In this article, he talks about the various sources of Hindu, Muslim and Christian law.

Introduction

India is a country that comprises of people following different religions. It is obvious that when it comes to governing them, religious beliefs of the people cannot be ignored, but the question is what all things should be considered as law and what not, not only this which all sources should be looked upon while framing laws in order to govern people of different religions. The two major religions in India are Islam and Hinduism. Apart from that, there is a considerable amount of population comprising of Sikhs, Buddhists, Jains, and Christian. Therefore it is necessary to examine all the sources which are looked upon before framing laws affecting the lives of people especially their personal matters like divorce, marriages, inheritances, etc.

Hindu Law

Hindu law is nothing but the concept of dharma, the concept of dharma in Hindu law is not defined precisely but it has come to mean the way of life a person lives and enjoys, which includes every aspect of his life. Right from the birth till the death of a person everything is included and governed by dharma. In other words, dharma is sometimes said to be the guiding force for all the Hindus. It contains rules regarding the proper conduct of people, it preaches love for everyone and contains the duties that every individual has towards the society as a whole. Dharma also was the major law which the kings of ancient times, especially the Hindu kings used to govern the people. All the laws which were passed had to be in conformity with the dharma, in simple terms the king was not above dharma and had to rule according to dharma.

Scope of Hindu law

Essentially Hindu law consists of all the activities and the practices that people have been following from time to time and thus becoming customs, however as the society progressed Hindu law was majorly used to establish the brahmin dominance, the concept of caste system is also an example of this under which the Brahmins were placed at the top and the kings who had the real power below them.

Sources of Hindu law

Hindu law is made up of various text and scriptures, the growth of Hindu law was both natural and sometimes helped by the legislation that was enacted during the British period. Sources of Hindu law can be divided into ancient sources and modern sources.

Ancient sources include religious text such as shrutis and the smritis, apart from that there are various Upanishads which also were a part of Hindu law.

Shruti as a source of law

Shruti means to hear, it is derived from the word “shur” which means to hear. Shrutis are considered to be the major source of Hindu law. Another term for Shruti is Veda. according to Hindu law, there are four Vedas namely, Rigveda, Samveda, Yajurveda, Atharveda. The brahmins used to pronounce what is written in these Vedas to the people. Since brahmins were considered to be knowledgeable people whatever they said was of supreme importance and it was considered to be the law of the land, therefore shrutis contain what is written and pronounced by the brahmins. Brahmins also tell us about the duties that the individual has to follow and how to perform these duties. The Upanishads contain the essence of these duties.

Smriti as a source of law

Smriti is derived from “smri” which means to remember. Smrtis are those parts of shrutis which the sages forgot to tell in their original form and therefore wrote down in the language which they were familiar with, therefore shrutis are considered to be the basis of smritis. There are 2 kinds of smritis first is Dharmasastras and the other is Dharmasutras. Dharmasastras contains the rules regarding the moral code of conduct for Hindus, whereas Dharmasutras contains the rules regarding government, caste, the relationship between people, economic affairs, eating habits, etc. There are many smritis that one can not count but the two famous smritis are Yajnavalkya smriti and manusmriti. Manusmriti is also considered to the first law book written by Manu.

Digests and Commentaries

The third most important source of law is the digests and the commentaries written by various authors of Hindu law. Commentaries generally comment on the smritis, the area of commentaries is from the 7th century to 1800 AD. Commentaries also laid the foundation of various schools of Hindu law. Digests contain the important aspects of all the smritis and discussed their reconciling and contradictions. Various digests and commentaries have been written by various authors on the two most famous smritis that is manusmriti and yajnavalkya smriti namely.

On manusmriti

1. Medhatithi has written Manubhasya.
2. Govind Raja has written Manuka.

On yajnavalkya

1. Vigneshwara has written the famous commentary on Mitakshara.
2. Arpaka has written Aparaditya.

Customs

Customs are the most important and the oldest form of lawmaking, customs mean the traditions, practices, activities, that people have been following for generations and overtime recognized as law. The essence behind considering customs as a major source of law is that since people follow customs and if some customs are not harmful to society then the state has no problem recognizing it. In order, that a custom becomes law there are some essentials which it may fulfill such as a custom must be valid, it should be in continuity, it should be followed by a large number of people and last it must not be discriminating and should not be opposed to public policy.

Indian law has recognized 3 types of custom namely:

1. Local customs- These are the customs that are prevalent in a particular local area.
2. Class customs- These are the customs that are prevalent amongst a particular class.
3. Family customs- These are the customs that are binding on the members of the family.

Modern sources of Hindu law

After the arrival of British many changes were brought in the personal laws of Hindus and many legislations were also passed, the modern sources of Hindu Law the doctrine of justice equity good consciousness, legislation, and precedents.

Justice Equity and Good Consciousness

In cases where there was no proper law to settle the disputes nor there was an existing law, then the judges used to give judgments according to the concept of Justice Equity and Good Consciousness. This doctrine was based on the concept of fair play, this doctrine did not have a uniform application since thinking of one judge may be different from the other, however, this doctrine played a huge role in transforming the personal laws of the Hindus.

Legislations

The legislation means the acts of the parliament, various Acts were passed by the legislature such as the Child Marriage Restraint Act, 1929, Hindu Successsion Act, 1956, Hindu Marriage Act, 1955, Hindu Minority and Guardianship Act, 1956. The legislation passed is binding upon all the other sources of law.legislation is codified this means it has been written in a proper way and it has to accepted and followed by all the people governing it. In modern times legislation is also called as the lawmaking body.

Precedents

After the establishment of British rule, courts were established and the hierarchy was introduced. Precedent means following the decision of the higher courts by the courts below it, if a particular case has already been decided, it seems reasonable to follow the same decision if the facts of the case are similar to the decided case. In today’s time, the decision of the supreme court is binding on all the made by other courts.

Schools of Hindu Law

There are two schools of Hindu Law namely:

1. Mitakshara school
2. Dayabhaga school

Mitakshara school

Mitakshara school derives its name from the commentary of Vijyaneshwara named Mitakshara. Mitakshara school contains rules regarding marriages, division of society into four castes, apart from this it contains rites and rituals that are to be performed during pregnancy, all these rites and rituals are considered sacred. Mitakshara school prohibits the marriage between a shudra and a brahmin, inter-caste marriages are allowed amongst the upper caste only.

Mitakshara school is subdivided into four major schools namely:

• Banaras school

It is prevalent in North India expect the rural areas of Punjab, where this school has been modified according to the customary laws.

• Mithila school

This school is prevalent in some areas of Northern Bihar.

• Bombay school

This school was prevalent in western parts of the country mainly Gujarat and Maharashtra.

• The madras or Dravida school

This school covers the whole of southern India including Karnataka, Tamil Nadu, and Andhra Pradesh.

Dayabhaga school

Dayabhaga school is prevalent in Bengal and Assam. Dayabhaga school professes benefit for the governance of the rules of succession.The immediate effect of this school was that there was an inclusion of many new people in the list of hires for succession which was not mentioned in Mitakshara school. Dayabhaga school preaches logic and reason rather than precepts and precedents. This school advocate for more practical and rational doctrines.

Sources of Islamic Law

Islamic law is made up of various sources, Quran the holy text being the main source, after Quran the main source of Islamic law is sunnah, both Quran and Sunnah are considered to be the primary source of law, apart from the primary source the other sources of Islamic law consists of ijma and qiyas.

Primary source

Quran

Quran which is the holy book for Muslims and is the main source of Islamic law. Quran is said to contain the direct sayings of Allah through his messenger Muhammad.Quran contains the rules and regulations regarding the conduct of Muslim people and various socio-economic laws. Quran was compiled soon after the death of Muhammad. Quran is not a legal textbook as it only contains the rules regulating man’s conduct with himself and God.

Sunnah

After the Quran the main source of Islamic law is the Sunnah, Sunnah contains the sayings of Muhammad, his daily activities, his prayer and his way of life. Since Muhammad is considered to be the perfect human being therefore whatever he says, does or advocates to perform becomes law for the other people. Quran is essentially a religious book and therefore it does not contain the legal and practical rules and therefore Muslims refer to sunnah on issues where the Quran is silent or does not have proper regulation.

Secondary Sources

Ijma

Ijma is considered to be the third most important source of Islamic law, ijma refers to the consensus among the learned Muslim jurists on a particular legal issue. However, there has been a discussion among various jurists whether to consider Ijma as a primary source of law or a secondary source of law. The Sunni jurists consider Ijma as an important source of law for making legislation, whereas the Shia jurists consider it as a secondary source.

Qiyas

Qiyas is the analogical deduction and is a secondary source of Islamic law. It means deciding cases according to reason, many Islamic jurists point towards the validity of Qiyas as a primary source of law by citing the Quran, as Muhammad in the Quran has said that if he is not able to resolve the dispute through a proper injunction then, in that case, he shall use his reason to solve it. The main principle behind the concept of Qiyas is that since every injunction is based on some benefit of the people, thus if a cause of injunction is taken from a primary source then the analytical deduction can be applied to cases with similar causes.

Schools of Islamic law

There are 4 schools of Islamic law namely:

1. The Hanifa School founded by Abu Hanifa.
2. The Maliki School founded by Malik ibn Anas.
3. The Hanbali School based on the teachings of Ahmed ibn Hanbal.
4. The Shafi School founded by Muhammad ibn Idris-ash Shafi.

Hanifa School of Thought

The Hanifa School is the most popular school of thought among the other four schools of thought. It is majorly followed in North India, out of the four schools of thought Hanifa school of thought is much more liberal towards the non muslims, the Hanifa school of thought gives greater importance to the rational deduction.

The Maliki School of Thought

The Maliki school of thought is the second largest school of Islamic jurisprudence when it comes to the percentage of its followers. This school is followed by at least 25% of the Muslim population. This school of thought is predominantly different from other schools of thought when it comes to sources to derive its sayings, however like other schools, the Maliki school of thought also Quran as the major source of Islamic law. The only thing which differs this school from the other school of thoughts is that, it also considers the practises followed the people of Medina as an important source of Islamic law as Muhammad was born in Medina, lived there, formed a government there and died there Another major difference between Malki and other schools is in the way people offer prayer, according to the of Maliki school during prayer the hands should be kept at side but this is not same in the other schools.

The Hanbali School of Thought

The Hanbali school of thought does not have great followership, still, it is an important school of Islamic jurisprudence. It is considered to be the most orthodox schools of Islamic jurisprudence as it wants to the strict implementation of the Quran and the sayings of Muhammad, however it is considered to be one of the most liberal schools when it comes to trade or for commercial purposes. The current set of individuals who believe in Wahabism is influenced by this school.

The Shafi school of Thought

The Shafi school of thought is mostly followed in Yemen, Sri Lanka, Indonesia, and Palestine. It considers the Quran, Ijma, Sunnah, and Qiyas as the major source of Islamic law, however, it relies less on qiyas while trying to construct its sayings. Apart from this it also considers the sayings of Muhammad’s close companionship as a source of Islamic law.

Sources of Christian Law

The four major sources of Christian law are:

1. Scriptures i.e the Holy Bible
2. Traditions
3. Reasons
4. Experience

Scriptures

The Holy Bible is made up of books that were written over a period of 1000 years. It contains letters, history, genres, and poetry. The Bible can be divided into two sections: the first is the old testament and the second is the new testament which contains the life of Jesus and the life of early Christian society. some Christian consider every word of the Bible correct whereas some consider the literature as the major ground for a moral foundation.

Traditions

Initially, traditions were interpreted as the teachings of Jesus Christ to his followers and then the followers recited the teachings to the Christian people, today it has come to be associated with the approaches that guide the of different Christian groups. Orthodox Christians gave high importance to traditions.

Reasons

Reasons like tradition have very high importance among the Christians, it is sometimes used to get an understanding of the Bible, there might occur situations when Bible and Traditions might come in conflict with reasons but for that reason would be neglected.

Experiences

Some people also consider experiences as an important source to understand Christian theology. Experience includes people’s thinking, their thoughts, and their five senses. The reason behind including experience as a source of Christian Theology is that whatever happens with the individual in his life is real, it was felt that Christianity must incorporate these experiences in it as well.

Conclusion

In India, since there are so many religions it is not possible to have a common source for the personal laws of different communities and therefore different sources have to be approached while making laws for people who follow different traditions. Although my personal opinion is a bit different. When you have different laws governing people of the same nation it leads to nonuniformity. For a nation to develop you need uniformity and considering the various laws of different countries we find our law is much suited to the social conditions of India.

One of the major aims of law is to command obedience and there is no better way to demand obedience by making people follow their own traditions which they have been following for centuries.

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This article is written by Anirudh Vats, second year student at Rajiv Gandhi National University of Law, Patiala. This article will first discuss the meaning and nature of the School along with the background which led to the emergence of Sociological School of Law. It will then discuss the basic tenets of the school, lay out the ideas of influential thinkers and then provide a criticism of the Sociological School of Law.

Introduction

The sociological approach to the study of law is concerned with how law affects society and vice-versa. It studies how social development affects legal institutions, law as a form of social control, the interaction between legal cultures and how law drives social change.

Meaning and Nature

The Sociological School of Law rejects law as an abstract, idealistic concept and sees it as an evolving social institution which reacts and adjusts to changes in the social circumstances. The school deals with the relation between law and society, and is concerned with the following questions:

• How does law function in society?

• How is law affected by social change?

• How does law drive social change?

• What are the social implications of a law?

• What social groups does a law favour or deprive?

• Can law be used as an instrument of social progress?

• How does law manage balance of interests in Society?

• How is law used to exercise Social Control?

• How does law become an instrument of Power?

These are just a few central questions which explain the frontier between society and law, but this list is in no way exhaustive.

The approach of this school of law is interdisciplinary in nature. It seeks to derive out of the economic jurisprudence,social anthropology, criminology and psychology.

Sociological jurists insist on the unity of the social sciences and their interdependence, and stresses upon a more active, involved study of law by studying the underlying social phenomena in the practise of law.

Background

The Sociological school of law was born as a reaction against the Analytical and the HIstorical School of law.

Opposition to Analytical School of Law

The founder of the Analytical School of law was John Austin. He regarded law as a command of the sovereign. According to this school, law was born out of the will of the sovereign ruler, and had no ethical or social concerns.

It regarded law as a self-sufficient field and considered it detached from ethical values like justice, liberty and freedom.

The sociological approach aims to refute the idea of self- sufficiency of Law. according to it, Law is a living, breathing part of society. Law was born out of a need for social cooperation, which called for the regulation of behaviour and the granting of certain freedoms.

Therefore, as with any other social institution, law too is subject to the social phenomena surrounding it. It affects society and is in turn affected by society. To see it as detached from the ethical concerns of society was considered incorrect by sociological jurists.

Law, does not emanate from sovereign individuals. It is born out of social processes and has a distinct function in society. The validity of Law comes not from the Sovereign, but from the function it performs in society.

Opposition to Historical School of Law

The historical school of law supposed law to be a result of the slow and silently evolving cultural processes of a certain group of people. It considered law to be something that is “found” by jurists and not “made”. Law cannot be the particular interpretation of a certain individual, it has to emanate from a culturally distinct group and their need for it.

The main opposition to the HIstorical school by the sociologists was that their approach to law was too passive. They viewed law as a gradual need which develops among people and then gets formalized, and do not adopt an active strategy to transform society through law.

Law, according to the Historical school, is a result of prevalent cultural practises, and not something that can be used as an instrument to instigate social change or progress.

Apart from this opposition, due to the rising war, strife and discontent at the beginning of the 20th century, natural law principles were being challenged, and there was a dire need to make law more relevant and contemporary, and that led to the prominence of the Sociological School of Law.

Basic Tenets

Formal law is just a portrait of law

The sociological approach (Henceforth, “SA”) to law rejects the Positivist idea that formal law is the real law.  It asserts that the real law is the law experienced by society, the law which manifests itself in the social living of people. It is not the law found in statutes, judgements, bare acts etc.

It distinguishes between the formal idea of justice and “social justice”, which is considered Justice in the real sense by Sociologists. The SA says that the inequalities existing in society are also a concern of law.

Justice should not be limited to the courtroom, justice should be seen to be done in the daily living of an individual, in the way he interacts with people and the way he functions in society.

Say a Dalit is beaten up in a caste-based incident. Legal Justice would be that the perpetrator is punished. But social justice would be concerned with how to uphold the dignity of that Dalit in society and ensure he is not discriminated against, and this social justice should become a central focus of Law.

Law is a social institution

The SA regards Law as just another Social institution akin to State, Family, Religion etc. This means that like any other institution, law is an ever evolving set of patterns which are well-established in society.  Law has its functions in society, and it is imperfect and permanently subject to change.

Moreover, the SA advocates actively getting involved in driving this change. The purpose of Law is to solve social problems and ensure a more just, fair and equitable society.

It rejects the idea that Law is separate from society and is somehow external to it. Society permeates law and vice-versa, and therefore social and legal change are complementary to each other.

Focus on Social purpose rather than Sanction

The SA regards law as an institution whose function is to solve legal and judicial problems facing society. Law should be cognizant of the condition of the society its operating in and actively aim to fulfill its needs.

This assertion is in direct contrast to the Positivist approach which aims at establishing law as a system of rules backed by sanctions. For this approach, Law begins and ends with a violation and a sanction. It has no moral purpose or ethical direction. It has no regard for the time it is operating in or the place it is applicable to, it is objective, absolute and unquestionable.

For the sociologists, this idea is false. Law, like all  Law cannot be separated from its ethical ends, in fact, the ethical concerns of Law should be given precedence over a sanction-based perspective of law.

Study of Legal Cultures

This is a relatively new term but forms one of the central concepts of Sociology of Law. Legal culture distinguishes between “law in books” and “law in action”, and studies how the two relate to one another.

It studies the attitude and behaviour of society towards legal institutions and how the legal system is perceived by individuals.

Legal culture goes beyond the Legal system and is understood at different levels of abstraction. Legal Culture exists in the State, The country and community.

Internal Legal Culture refers to the culture within the formal legal system, like the judiciary, the bar council etc. External legal cultures refer to the attitudes towards the Legal system adopted by people external to it.

Critique

It undermines individual interest

A fundamental problem in society is the constant conflict between individual and societal interest. The Sociological School disregards individual interest as it supposes Law to be primarily applicable to society and not the individual.

Suppose a judge is deciding a case of Rape. The accused is viewed by everyone as guilty and society has already passed judgement on him. In this case, it is the judge’s duty to view the facts and evidence objectively and decide accordingly. The social interest or opinion should be of no importance to the judge, and if there is a lack of evidence, the accused must be set free.

This shows that Individual identity holds more interest in the eyes of Law then Group identity. People are not products of their race, sex, nationality etc. but distinct, independent beings who cannot be tyrannized due to their conflicting interests by Society.

The Sociological School attempts to shift the focus of Law towards society, in turn undermining the interest of the individual, which is often in contrast to the interest of society.

Social Justice, while a noble idea, cannot be the sole focus of law, as Individual justice is much more important to Law.

Subjectivity of Social Ideals

According to the SA, Law should help society progress towards an ideal. This poses two problems. First of all, who decides what direction a society can take? After all, society is just a combination of conflicting individual interests. For some, Homosexuality is a valid sexual orientation, for others it is sin. Which interest should prevail and should law be conscious of every differing interest?

A social ideal is a metaphysical idea. If law starts actively heading towards these abstract ideals, it ceases to be a definite science, with objective rules and a definite system of social regulation.

Another problem is, it is impossible to know the consequences of a social change beforehand, and if Law becomes an active catalyst for it, it might overstep its boundaries and become oppressive.

For example, in the early 20th century America, alcohol was prohibited and sale of it was banned. This meant people’s productivity increased, crime decreased and married women were happy. But ultimately, an underground mafia developed which started a huge black market of alcohol, this brought in much more crime and death, along with frequent clashes between police and criminals. Moreover, the law had overstepped by taking away the free choice of a person to consume what he wants.

Therefore, the law cannot be solely motivated by driving social change, as it is a definite science which seeks to impose objective rules and regulations on society.

Law cannot be a mere balance of interests

If society is made up of individual interests, there are bound to be disagreements. Social jurisprudence says that Law should act as a mediator between these interests, trying to fulfill the needs of as many people as it can. This is in consonance with Bentham’s idea of the greatest good for the greatest number, and this is a principle law should abide by.

But this assertion assumes that Law is an impartial overseer, but we know that Law is also not free of opinion, law has its own ideas of justice, and interprets liberty and fairness in its own way.

Law cannot balance all the interests in society. It is objective and chooses, as per its own biases and standards of judgement, what is lawful and what is not.

Therefore, the idea that law is impartial and a mitigator if all interests is flawed and inadequate.

Goes beyond the tenets of Sociology

Sociology is essentially a descriptive study of social facts, but Sociological School of Law delves into jurisprudence, which is the philosophy of Law, and here the Sociological School makes a leap into being a normative study, directing and aspiring towards something, and actively trying to realize it.

Roscoe Pound, an influential thinker of the school, regarded Sociological School as jurisprudential, advocating for an involved, active study of Law.

Therefore, it ceases to be a mere description of a sociological perspective of law, and becomes a normative study of law as a catalyst for social change.

Conclusion

The Sociological School of Law offers an alternate perspective towards understanding Law, and has done great work to make Law more relevant, contemporary and sensitive to the social climate it operates in.

Its merits are plenty, and its critics too do not deny its utility, but help in an evolution of this School to a broader, encompassing theory of understanding Law.

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This article is written by Ayushi Dubey, a third-year student of Institute of Law, Nirma University. The article discusses the concept of corporate criminal liability with respect to its position in different laws of the world. The article highlights the need for better and developed statutes and laws for corporate criminal liability in India. The author has provided a detailed account of various corporate criminal liability theories and supported the points through judicial pronouncements.

Introduction

Corporations have a separate legal entity and they are treated as a separate personality in law. And therefore, separate liability can be imposed on corporations from any criminal liability which may be imposed on the individual members for any wrongdoing. The legal maxim upon which the basic rule of criminal liability stands is “actus non facit reum nisi mens sit rea means” which basically means that an act is not wrongful unless it is done with a wrongful state of mind.

The companies are criminally liable only for the offences that happen during the course of business operation and for which the company bears responsibility.

A corporation can be convicted for the violation of penal law in the courts which comes under that particular court’s jurisdiction. A company can be involved in offences such as murder, failure to ensure safety mechanism and any other offence of omission. A corporation cannot be imprisoned and presumably cannot be held liable for rape. As intention does not play a role in deciding cases against corporation therefore, it can be held liable for an offence which does not involve any intention.

After the debate about the propriety of criminal punishing a corporate entity, the current rules regarding corporate criminal liability came out. The major argument was that a corporate entity lacks the required mens rea to commit a crime. According to the current rules, both the corporation and its employees can be held liable for an offence by the corporation.

The criminal law regarding corporations is not only restricted to the Indian Penal Code but also there are various statutes governing the same. However, the Supreme Court of India has expressed the need to have proper laws related to corporate criminal liability in India. As of now, India imposes strict and vicarious liability on a corporate and its officers who are responsible for the management of the affairs of the company.

Legal Position in USA and England

• In the USA a corporate can be held liable for the acts done with intent. The Supreme Court of the USA held that they find no valid reason in law and every reason in public policy regarding making corporations criminally liable.
• In England “corporation is not indictable, but the particular members of it are.” A corporation is civilly and criminally liable for the acts of persons authorized to and have acted in a particular manner out of which the unlawful act has resulted. The courts in England have emphatically rejected the notion that a body corporate could not commit a criminal offence which was an outcome of an act of will needing a particular state of mind.
• J Macnaghten: A body corporate is a person to whom there should be imputed the attribute of a mind capable of knowing and forming an intention. A body corporate can have the intent but not criminal intent.
• It can only know or form an intention through its human agents, but circumstances may be such that the knowledge of the agent must be imputed to the body corporate.
• In the case of H.L Bolton (Engg) Co. Ltd v. T.J. Graham and Sons [1] it was held that Company may in many ways be likened to a human body. They have a brain and nerve centre which concludes what they do. They also have hands which accordance with the centre.
• Some of the people in the Company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will. Others are directors and managers who represent the directing mind and will of the company, and control what they do.
• State of the mind of these managers is the state of mind of the company and is treated by the law as such.
• In cases where the law requires personal fault as a condition for liability in tort, the fault of the manager would be the personal fault of the company. Similarly, in the criminal law in cases where the law requires guilty mind as the condition of the offence the guilty mind of the managers or directors of the company will render them liable.
• In the case of Tesco Supermarkets Ltd v. Nattrass [2], stating the criminal liability of corporate, Lord Reid said, a living person has knowledge and intention, and he can act negligently the corporation has none of them. A corporation must act through living persons, though not always one or the same person. A person who acts is not speaking or acting for the company. He is acting as the company and his mind which directs his acts is the mind of the company.
• He is an embodiment of the company or, one could say, he hears and speaks through the persona of the company, within his appropriate sphere, and his mind is the mind of the company. If it is guilty mind then that is the guilt of the company. Any liability of the company can be a statutory or vicarious liability.
• The criminal liability of a corporation would arise when an offence is committed in relation to the business of the corporation by a person or body of persons in control of its affairs. Mens rea is attributed to the principle of “alter ego” of the company.
• In Director of Public Prosecutors v. Kent and Sussex Contractors Ltd [3], MacNaghten J. stated that a body corporate is a ‘person’ to whom there should be imputed to the attribute of a mind capable of knowing and forming an intention. It can only know or form an intention through its human agents, but circumstances may be such that the knowledge of the agent must be imputed to the body corporate.

Legal Position in India

• In the case of Standard Chartered Bank v. Directorate of Enforcement [4], it was held that the Company is liable to be prosecuted and punished for criminal offences. The Supreme Court rejected the notion that the Company could avoid criminal prosecution in cases where a custodial sentence is mandatory.
• There are offences in the Indian Penal Code which describe offences of serious nature whereunder a corporate body also may be found guilty, and the punishment prescribed is a mandatory custodial sentence. There are a series of other offences under various statutes where the accused are also liable to be punished with custodial sentence and fine.
• As the company cannot be sentenced to imprisonment, the Court cannot impose that punishment, but when imprisonment and fine are prescribed punishment the court can impose the punishment of fine which could be enforced against the Company.
• As regards, company, the court can always impose a sentence of fine and a sentence of imprisonment can be ignored as it is impossible to be carried out in respect of the company.
• In the case of Anil Gupta v. Star India Pvt Limited [5], the Supreme Court the matter was related to dishonour of cheque under Section 138 and 141 of the Negotiable Instruments Act. The Supreme Court observed that the other categories of offences can be brought under the touchstone of the vicarious liability.
• In Gunmanla Sales Private Limited v. Anu Mehta [6], the Supreme Court observed that the vicarious liability contemplated in the Negotiable Instruments Act to ensure greater transparency in commercial transactions. This object has to be kept in mind while deciding on the hardships of a particular case.
• In Aneeta Hada v. Godfather Travels and Tours Pvt. Ltd [7], the dispute was related to deciding the liability of a corporate in dishonour of cheque. The Supreme Court discussed the extent of vicarious liability in case of corporate. The company being a juristic person is liable for the acts of others.
• In case of Iridium India Telecom Ltd v. Motorola Inc [8], the Supreme Court held that in all jurisdictions across the world which are governed by the rule of Law Companies and Corporate houses can no longer claim immunity from criminal prosecution on the ground that they are not capable of possessing mens rea.
• In the case of Standard Chartered Bank v. Directorate of enforcement [9], the Supreme Court laid down the view that a company can be held liable and be punished for criminal offences. The case, although rejected the idea of earlier cases which held that a corporation cannot commit criminal offences. The court also held that merely the punishment for a crime is mandatory imprisonment and fine, the corporate cannot be held free from it. Though the court held that the fact that a corporation can not be imprisoned or hanged sets a limit on the criminal liability of the corporate. Therefore, a corporate can only be prosecuted for crimes which involve fine.

Theories of Criminal Liability

Vicarious Liability

In vicarious liability, the accused is blamed for the offence of another. Vicarious liability is based on the principle of Respondeat Superior which means let the master answer. General rule of Law of torts where the employer can be held liable for all Acts of employees done in the course of the employment. This doctrine is applicable in criminal law as well wherein corporate may be held liable and punishment can be fine and seizure of the property. Though the application of this doctrine has been criticized on the grounds that it ignores the company’s effort to prevent illegal activity by an employee.

For vicarious liability, the act and intent of the employee must be imputed to the company and the employee should act within the course of employment. The Supreme Court, referring to Section 145 of the Negotiable instruments act, held that the person who is responsible for the conduct of the business of the company and is in charge of the company can be held liable for vicarious liability.  

Identification Theory

It requires that corporations should take responsibility for the persons having decision making authority for the policy of the corporation rather than the persons implementing such policies. The theory focuses on the directing minds of the corporation and merges the individual and corporate persons in order to assign criminal liability to the corporate. The theory focuses on the fact that the intention and action of the company are the results of the employees of the company.

The underlying principle of this theory is the detection of the guilty mind. Lord Denning has identified that a company is linked to a human body and it had a brain which controls what it does. The directors of the company control the will and the mind of the company. However, the theory has been criticized for its limited application.

Sanctioning Theory

This theory requires the Imposition of fine on the company with respect to criminal liability. However, the imposition of fine creates problems, mainly because it can be difficult to identify which amount for the fine would be fair while punishing a corporate for criminal liabilities. The monetary sanctions are widely used for imposing penalties on the corporations.

Direct Liability Doctrine

It seeks to imitate the imposition of criminal liability on human beings and relies on the notion of personification of the legal body. This doctrine identifies the actions of certain individuals within the company to act within the scope of their authority.

Conclusion

It is a well-settled principle in Criminal Law jurisprudence regarding criminal liability on corporations. A corporation may commit a crime and held liable for a criminal offence. However, the statues in India are not in pace with these developments and they don’t make corporations criminally liable. Even if they do so the statutes and judicial interpretations impose no other punishment except fine. Even the Supreme Court said that there is a need for separate law making provision for infliction of criminal liability on the corporations.

References

1. 1946 3 ALL ER 624
2. HL 31 MAR 1971
3. (1944) 1 All ER 119
4. AIR 2005 SC 2622
5. AIR 2014 SC 3078
6. AIR 2015 SC 1072
7. AIR 2012 SC 2795
8. AIR 2011 SC 20
9. AIR 2005 SC 2622

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This article is written by Ayushi Dubey, a third-year student of Institute of Law, Nirma University. The article highlights various reasons as to why cow slaughter should not be banned in India. The author has discussed manifold cases to strengthen the argument that banning of cow slaughter in India is a violation of Fundamental Rights of the people.

Introduction

The issue of cow slaughter is not new to India. From the colonial rule to the NDA government, we have seen many aspects of it. The issue has always been in controversy due to the involvement of religious sentiments of people. The two main religions in the debate are the Hindus and the Muslims. The Hindus argue that cow is their holy animal and therefore, it should not be slaughtered. Whereas, the Muslims want to slaughter it because a good number of people from the Muslim community are butchers and secondly, their religion demands the sacrifice of a cow as well. The arguments are further dealt with in detail throughout the article. The article through various judicial pronouncements has raised arguments that why cow slaughter should not be banned in India.

Violation of Right to Work under Article 19(1)(g)

Every citizen, under Article 19(1)(g), has the right to choose every employment or to take up any trade or calling, subject only to the limits as may be imposed by the state in the interest of public welfare. A blanket ban on cow slaughter has the potential for creating a standstill in the meat business as due to the same, the butchers, gut merchants and cattle traders will incur huge losses despite there fundamental right to carry on any trade or occupation of their choice.

Under Article 19, the burden falls on the state in order to defend and justify the validity of the legislative statue, further, the restrictions under Article 19(6) should not be arbitrary, excessive, irrational, beyond the requirements of the interest of the general public and a direct and proximate nexus between the restrictions and the object which is sought to be achieved should exist therein.

A ban imposed on the freedom to carry trade or commerce is unreasonable if it is imposed not for the public interest, but simply to respect the values and beliefs of a section of people. And according to the case Deendayal [1], an alternative to this blanket is adopting an economical approach vis prohibiting the killing of useful animals but not of those animals who are economically useless to the society. The case of Manickchand [2], held Prohibition of slaughter of bulls, bullocks etc. below the age of twenty-five years is unreasonable as these animals cease to be useful after the age of fifteen years.

The case of Haji Usmanbhai Hasanbhai Qureshi v. State of Gujarat [3], held that the maintenance of useless cattle involves a wasteful drain on the nation’s cattle feed. To maintain them is to deprive the useful cattle of the much-needed nourishment, this, in turn, tends to deteriorate the bleed thereby being detrimental to the limited resource pool which can be further utilized for more effective and efficient uses. Further, the apex court in the case of Hasmatulla v. MP [4] held that blanket ban on cattle slaughter does not necessitate compliance with Article 48, a balance between the right of the butchers to carry on their trade and public interest must be struck.

The landmark judgement of Hanif Qureshi & Ors. v. State of Bihar [5], mentions the invalidity of a total ban on the slaughter of all cattle animals whilst keeping in mind the economic losses they may bring and the inefficient usage of resources they may cause. Therefore, the powers and capacity of the legislature and the impact of legislation on the citizen’s fundamental rights clearly depict that the ban on cow slaughter violates Article 19(1)(g).

Violation of Right to Choice under Article 21

Complete prohibition and ban on the slaughter of cow lead to clear infringement of the right to life & personal liberty enshrined in Article 21 of the Constitution of India. The Right to Life and Personal Liberty is considered as the most sacrosanct right among all other fundamental rights. Right to life & personal liberty is a comprehensive term which includes varieties of rights, and attributes which go to make up personal liberties of a man. In the case of Maneka Gandhi v. Union of India,[6] it was held that Article 21 consists of wide varieties of right & some of them are given a special status of a different fundamental right having special protection under art. 19.

The Right to Life guaranteed under Article 21 embraces within its sweep not only physical existence but the quality of life and if any statutory provisions run counter to such a right it must be held unconstitutional. It is a right which protects the inner sphere of the individual from interference from both state, and non-state factors and allows individuals to make autonomous life choices.

In HinsaVirodhak Sangh v. Mirzapur Moti Kuresh Jamat[7], the Supreme Court observed that what a person eats is a matter of his personal choice which forms the part of the right to privacy under article 21 of the Constitution of India.

Any restrictions on the right of an individual which violates Article 21 of the Constitution of India can be sustained only if the state establishes the existence of compelling state interest and even the plea of the existence of compelling state interest is subject to scrutiny on the ground of reasonableness and proportionality of the intrusion.

Further relying upon the provisions of Food Safety and Standards Act, 2006 and the regulations framed thereunder, it is submitted that bovine flesh has been statutorily accepted as a nutritious food.

Violation of Right to Religion under Article 25 and 29

The blanket ban on cow slaughter violates people’s rights guaranteed under Article 25 and Article 29 of the Constitution. It is contended that the sacrifice of bulls and bullocks is an essential part of the festival of Eid.

The ban depending upon the directive principles of State policy is postulating a supposition that the legislation has been made in public interest. Even assuming that the ban is in concurrence with the directive principles of State policy, it is not necessary to presume that the restrictions imposed by the provisions thereof on the fundamental rights are reasonable. The Apex Court in the case of Akhil Bharatiya Karmachari Sangh v. Union of India,[8] contended that the reasonableness of restrictions imposed by the said sections needs to be examined independently. Also, in the case of Pathumma v. State of Kerala [9], it was contended that the directive principles of State policy can never negate the requirements envisaged under Part III of the Constitution.

Also, while dealing with the issue of violation of fundamental rights, the Court has to see whether or not the restrictions imposed are reasonable and also whether there is any existence of a compelling public interest. In the case of Javed v. State of Haryana [10], it was contended that the test of reasonableness cannot be dispensed with the sole reason that the Statute enacted is in furtherance of the directive principles of State policy. The Apex Court in the case of Minerva Mills v. Union [11] of India negates the contention that the directive principles automatically support legislation that curtails the fundamental rights.

Also, in the case of State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat [12], it was observed that the increasingly large number of uneconomical bullocks was negatively hampering the human life and was causing health-related problems. It was also noticed that the Gaushalas in Maharashtra were in a state of the plight and also indulging in the illegal sale of uneconomical bullocks. Therefore, the restrictions imposed thereof, by the said Amendment are not for the benefit of the public and also cannot be considered reasonable by any stretch of the imagination. It was also urged that once a statute is shown to transgress upon the fundamental rights, the onus is on the State to establish the reasonableness of restrictions imposed by the Statute.

Further, if we invoke the Clause (1) of Article 25 of the Constitution of India, thereby submitting that the slaughtering of cattle on the occasion of Bakri Eid and every festival is a religious practice protected under the said clause. The slaughtering of cows on the occasion of Bakri Id is an essential religious practice under the said proviso. However, as laid down in Hamilton’s translation of Hedaya Book XLIII, Maidah in Part 6 of the Holy Quran, which marks the end of the Haj Pilgrimage3 wherein cattle are sacrificed, and Verse 24, it is the rightful duty of every Muslim who has arrived at the age of maturity, to offer a sacrifice of either a cow among seven people or one goat per person. The very fact of an option, therefore, runs counter to the question of an obligatory duty. However, economic compulsion creeps in as the majority of the Muslim population is poor and therefore, not in a financial position to sacrifice a goat. As a result of the total ban, people would not even be allowed to make the said sacrifice which is an essential practice, enjoined upon them by the Holy Quran, and practised by all Muslims since time immemorial.

Also, it was held in the case of I.R. Coelho (Dead) By Lrs. v.State of Tamil Nadu & others [13], that when there is an infringement upon the fundamental rights of the citizens, the burden of proof lies not on the Petitioner alleging infringement to show that the infringement is not reasonable or is contrary to morality. It is, therefore, upon the State to justify the ban by showing that the infringement of the said right can be saved on grounds of morality, public health and other such grounds. Secularism is a positive concept of treating all religions equally, which forms a basic structure of the Constitution and any violation of Article 25 would tantamount to the violation of the basic structure. By banning the slaughter of cow and her progeny, the State is favouring one religion over the other under the guise of Article 48 of the Constitution.

Article 29 of the Constitution protects the interests of the minorities by making provisions for them for conserving their language, script or culture. It also mandates that no discrimination would be done on the grounds of religion, race, caste, language or any of them.

Therefore, a ban on cow slaughter is violative of Article 29 of the Indian Constitution which states that any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own has the right to conserve the same. The ban fails to accommodate diverse religious practices and has systematically normalised, legitimised and prioritised a dominant Hindu ethic at the expense of the rights and beliefs of the already subjugated Muslim community. The interests of both parties should therefore, be balanced.

Conclusion

The fact that this issue would still take time to get resolved is important note. Unless and until people don’t start thinking beyond their religious sentiments, a logical argument could not be accepted. The article has tried highlighting the economic loss that the ban on cow slaughter would cause to the country. In order to protect the religious sentiments of one, the law cannot affect the religious sentiments of another. And when there are conflicting interests between two people, an amicable solution has to be reached. A balance has to be made and partially allowing cow slaughter of un-economic cows or cows which are old and cannot produce milk is one such solution.

References

1. 2003 (3) WLN 453.
2. 1984 3 S.C.C. 65.
3. (1986) 3 S.C.C. 12.
4. AIR 1996 SC 2076.
5. 1958 AIR 731.
6. (1978) 1 S.C.C. 248.
7. (2008) 5 S.C.C. 33.
8. (1981) S.C.R. (2) 185.
9. (1978) 2 S.C.C. 1.
10. (2003) 8 S.C.C. 369.
11. A.I.R. 1980 S.C. 1789.
12. (1999) 3 G.L.R. 2007.
13. A.I.R. 2007 S.C. 861.

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This article is written by Sparsh Mali, a fourth-year law student at the School of Law, UPES, Dehradun. The article explains the principles of Subsidies and Countervailing Measures with respect to WTO.

The World Trade Organization came into existence after the Marrakesh agreement. Since after the Second World War most of the countries were trying to be a part of GATT member to support international trade and to get the benefit of these international trades as all the giant powers were not ready to work altogether. With the development of GATT in many rounds the Marrakesh agreement successfully ends up forming WTO which came into existence on January 1, 1995, and the most important thing is that both GATT and WTO focused the same thing but WTO has a wider range of network in dealing with international trade.

It is observed that all the principles related to international trade are laid down under GATT/ WTO agreements but altogether it is less known facts that WTO agreement has very few principles in it. As WTO was only concerned with developing international trade for the world with respect to goods, but with the increase in demand and importance of WTO principles, WTO has offered many other separate agreements such as Agreements on TRIPS, Reshipment Inspection, Safeguards, Agriculture, and Subsidies & Countervailing Measures etc.

Introduction

The Agreement on Subsidies and Countervailing Measures are popularly known as “SCM Agreement” which addresses two separate concepts but the importance of putting both the concepts in the same agreements is that they are closely related topics and one is the action of other principles. Subsidies are the multilateral disciplines regulated by SCM Agreement of WTO whereas countervailing measures are the kind of remedy for damage caused by subsidy.

Multilateral disciplines are the rules regarding international trade and implicate the right and obligation to member nations.

The most important part of this agreement is that although the set of rules by WTO is related to multilateral practice and countervailing duties are unilateral practices where one nation imposes countervailing duties on that member who tries to affect the importer’s country market by the means of providing subsidies to its domestic market. The action of investigation can be carried by the victim country and can raise a complaint to WTO Dispute Resolution Body (DSB) with their investigation reports either to warn or impose countervailing duties on the accused nation.

Structure of the SCM Agreement

Unlike all the structure of all contracts, agreements, acts etc., the SCM Agreement also has a very basic structure of agreement which divides the agreements into different parts which are:

• Part I: Like most of the structures Part- I of this agreement also contains definitions and certain other aspects. Part I of these agreements specifically contains the definitions of Subsidies, the definition of specificity and speaks about the extent of application of subsidies which specifically deals with an enterprise or industry or group of industries and other such enterprises.
• Part II & Part III: This part of this agreement divides all the specific subside into two different categories that are prohibited & actionable subsidies. Both the parts of these agreements also deals with the effects of these subsidies, remedy and a DSB authority to grant a remedy for violation of this part of the agreement. Conclusively we may assume that this part of the agreement has rules and regulations for different aspects.
• Part V: This part of the agreement deals with the procedural requirements, rules etc.for application or executing Countervailing measures. It also contains various topics such as application of article VI of GATT 1994, the procedure of investigation & evidence of the event, consultation & approaching DSBs etc.
• Part VI & Part VII: It includes institution such as committee on subsidies & countervailing measures, subsidiary bodies, notification & surveillance by those regulatory bodies for implementing SCM Agreement.
• Part VIII: This part deals with rules and regulations related to special treatments to different kinds of countries like developed, under-developed, developing, LDC’s etc.
• Part X & Part XI: Both these part only deals with the principles of DSB and final provisions.

Subsidy

As discussed above, Article 1 (Part I) of the SCM Agreement defines Subsidies. The general definition of subsidies can be understood with a simple word that is ‘financial aid/ help’, which means any kind of financial aid/ help can be considered as ‘subsidies’. The SCM Agreement has mentioned three conditions and explains that all of the conditions are to be fulfilled, then only the action will be considered as a subsidy, where the conditions are-

• There must be a financial contribution either by the government or by any of the public body within the territory of the member nation; and
• If the action is consistent with Article XVI of GATT 1994, which means if there is any form of income or price support.
• After any financial contributions, there must a benefit.

The application of this agreement requires financial contributions such as loan, financial incentives, special grants etc., and explains that any financial contribution even from the sub-governments is considered as subsidies if they raise any benefit to the recipient.

Part I, also talks about the specificity, which means all the financial aid to enterprise or industry or group of such industries will only be considered as subsidies and such specificity of subsidies are only considered under SCM Agreement. Article 2 of the SCM Agreement explains different types of specificity which are as follows:

• Enterprise- Under this type of specificity the financial contributors are only concerned with aiding specific company or a specific set of companies.
• Industry- Under this type of specificity the contributors such as government and public body aim a particular sector of the industry for giving them financial help and benefit.
• Regional- It is a condition when the government is helping industry/ company located in some specific geographical area and subsidies them with benefits.
• Prohibited- Here, in this case, the government is aiming at providing subsidies to all such goods which are exported to different countries.

Categories of Subsidies

1. Prohibited Subsidies– The SCM Agreement prohibits any government from providing any subsidies-

• Which are contingent with respect to law or fact upon export performance. These kinds of subsidies are often called export subsidies.
• Which are contingent with respect to law or facts upon giving any protectionism of domestic goods over imported goods. These kinds of subsidies are often called local content subsidies.

These are the two kinds of subsidies covered under prohibited subsidies.

The important part to be considered here is that the scope of such subsidies are relatively low as all the developed nations have already adopted this but it becomes challenging with developing or LDC countries. The SCM Agreement not only has the dos and don’ts rather it also comes with sanction with respect to a violation of rules laid down in the SCM Agreements which are dealt with DSB of WTO.

2. Actionable Subsidies– The SCM Agreement does not prohibits any nations from taking actions on actionable subsidies rather they can be restricted and are subjected only when any nations bring an action in terms of challenging either through DSB or through Countervailing Duties. The actionable subsidy has three adverse effects on the member nation which are:-

• They cause injury to the domestic market of the member nations.
• Serious Prejudice to the interest of other members- It means when the government is helping and giving subsidies more than 5% to cover any operating loss of any industry or sector by the process of directly forgiving them from any government debts. The effects of granting such subsidies cause displacement of other net exporter countries to the importing country of Like Products.
• Nullification or Impairment- it is a process of damaging the importer country’s benefits and expectations from other member nations of WTO through another country’s or third country’s change in its trade regime not according to the GATT/ WTO Agreements obligation.

3. Non- Actionable Subsidies– It is a kind of subsidy which is neither prohibited nor restricted by GATT/ WTO and does not permit any of the member nations to impose countervailing duties against them. It is observed that most of the subsidies are either restricted or prohibited by the GATT/ WTO and whosoever overrule these guidelines agreed in the agreement then they are subjected to countervailing measures by other member nations especially by the affected nations. However, Non- actionable subsidies are not subject to these tariffs (Countervailing duties) like environmental subsidies, agricultural subsidies, scientific subsidies etc.

Countervailing Duties/ Measures (CVDs)

Subsidies are explained briefly and the parts which only talks about the Subsidies of the SCM Agreement, but remedies to all these restricted activities are introduced from Part V of the SCM Agreement. Part V specifically defines what countervailing measures are and how do they work. WTO counts Countervailing Measures as a safeguard from all those practising subsidies which are either restricted or prohibited under the SCM Agreement. The WTO explains it as a kind of tariffs imposed on imported goods to counterbalance the subsidies enjoyed by the producers in the exporting country either by their government of any public body.

CVDs are the counterbalance tariff to maintain a balance between domestic producers and other foreign producers of the like product because the subsidies producers can afford to sell it at a relatively lower price than that of other producers because all the producers don’t get the same or even such types of subsidies by their government or any public body. If these are left unchecked, then there could be a great possibility that these subsidized imports may severely affect any importer country like deflation/ inflation, loss of employment etc., that’s the only reason why GATT/ WTO has reflected the concept of CVDs in the agreement and mentioned that these export subsidies are unfair trade practice and must be restricted or prohibited.

Part V of the SCM Agreement has mentioned a substantive rule to check if the imported goods can be subjected in imposing CVDs, the rules contain three essentials to establish the objective of imposing CVDs on imported goods which are as follows:-

• To impose CVDs on any imported goods the importer country has to determine whether there are any subsidies provided to the producers in their country by their government or any such public body.
• When these subsidize goods are imported in the country they must create some threat to their domestic market.
• There must be a direct causal link between subsidized goods and a threat to the domestic market.

Part V of the SCM Agreement also contains rules and procedure of conducting an investigation for the purpose of imposing CVDs. Apart from this, it is very important to understand the concept of ‘Sunset’ and ‘Judicial Review’. Where ‘Sunset’ means CVDs will be collapse automatically after every 5 years and can be continued only after the condition that if the importer country determines that the exporter country still not following the key regulations of the SCM Agreement. Whereas ‘Judicial Review’ is the power given under Article 23 that GATT/ WTO member can create an independent tribunal to review the decisions of investigation authority or investigation panel of GATT/ WTO with respect to the domestic law of the country only if the country has its own national legislation or law relating to CVDs.

Special or Preferential Treatment

Part VIII specifically deals with the social treatment for nations other than developed nations. It is also observed that subsidies play a vital role in economic stability & development and also helps in improving the living standard and other such standards in the country.

Article 27 of the SCM Agreement provides that Article 3 (Para 1.a) does not apply to the developing nations for the period 5 years from the commencement of WTO, and it does not applies to least developing nations (LDC) for a period of 8 years from the commencement of WTO, which practically means that now it applies to all the member nations equally and no favourable treatment is given with respect to Import Subsidies. Although LDCs & member nations with less than $1000 capita income per year are totally exempted from the list and can enjoy freedom over export subsidies.

The SCM Agreement has categorised the member nations into three different categories which are:

1. Least Developing Nations(LDCs).
2. Member nation with less than $1000 capita income per year.
3. Any other developing country not falling into the categories discussed above.

It is noted that there is no favourable treatment with respect to non-actionable subsidies.

Notification and Surveillance

WTO has surveillance on every member nation and mandates rules that every member nation have to notify the SCM committee regarding their internal policies related to Subsidies and Countervailing Measures. Where the member nations has to notify SCM Committee regarding their Subsidies and Countervailing legislations and law within their country, with the SCM agreement these member nations have to notify the SCM Committee regarding all such aspects under Article 25 (Notification of Subsidies to SCM Committee) and under Article 36.2 (Notification of Countervailing Measures to SCM Committee).

The member nations have to notify the SCM Committee every 3 years with all the latest amendments or any new regulations or any activity related to Subsidies in their country for the purpose of an extensive review by the SCM Committee. Whereas in the case of Countervailing Measures the member nations have to notify all the countervailing actions taken on every basis like pre or final actions; and the member also has to notify the SCM Committee regarding their respective authority and their legislation that who and how these authorities have imposed any countervailing measures.

Dispute Settlement

It is the most crucial and important part of any law and no law can function properly unless it is benefited by any such regulatory body and here, in this case, Dispute Settlement Understanding is the regulatory body for governing or deciding any disputes related to SCM Agreement. Article 30 of Part X of SCM Agreement speaks about the Dispute Settlement Understanding and DSU is the only international body, which is responsible for consultations and settlement of disputes. The agreement contains all the special rules and procedures for the settlement of disputes arising in respect of this SCM Agreement.   

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This article is written by Ayushi Dubey, a third-year student of Institute of Law, Nirma University. The article highlights the concern towards the maternal health conditions of the country. The author has examined the current situation of maternal health conditions in the country and has pointed out the need towards their betterment. Through the article the author has raised two relevant questions and tried to answer them with respect to the ongoing condition of the country.

Introduction

Being able to give a new life is considered to be one of the greatest privileges. But great privilege comes with great responsibilities. A mother has to face a lot of issues during the course of her pregnancy, these issues could be economical or health-related as well. This article would be focusing on the health issues related to pregnancy and also what the state is doing for the same.

The given data shows maternal deaths, maternal mortality ratio and risk involved of the year 2014-2016. The data clearly depicts that the risk involved is the least in the south Indian states, on top is Kerala, one of the reasons behind the same can be higher literacy rates in the state. The highest risk is found in the state of Assam and Bihar/Jharkhand i.e. 0.6, the major reasons behind this is again low literacy rates and large populations as well.

India has registered a 77 percent decline in the Maternal Mortality Ratio (MMR) from 556 per 100,000 live births in 1990 to 130 per 100,000 live births in 2016 [1]. The credit goes to a number of initiatives taken by the government. a large portion of victory is taken by the Janani Suraksha Yojana which has contributed to a surge in institutional deliveries from 38.7 per cent in 2005-06 to 78.9 percent in 2015-16 [2]. Other schemes such as Pradhan Mantri Surakshit Matratav Abhiyan in which private doctors voluntarily visit government hospitals on every 9th day of the month. A number of other policies will also be discussed in the article . Other than these policies indirect factors such as an increase in literacy rates and awareness towards health and hygiene also plays a crucial role in reducing maternal health-related issues. Research has also shown that the decline in poverty ratios and growth in per capita net state domestic product are major reasons for better maternal health conditions.

Two Important Questions

1. Whether the policies and steps taken by the government of India for maternal health are enough?
2. What India has done for maternal health as compared to other countries?

1.Whether the policies and steps taken by the Government of India for Maternal Health are enough?

This question would be discussed in different segments such as what all policies India has adopted, the current policies and the policies of the past which have been made dysfunctional now, the reasoning behind adopting the current policies and the problems in those policies and whether or not these policies have created any significant changes in the poor maternal health conditions of India.

1. Laqshya Standard Operating Procedures For District Hospitals [3]

Launched in November 2017 the said policy focuses on intrapartum and postpartum care as it is estimated that almost 46% of maternal deaths take place on the day of delivery. The primary objective of this initiative is to curb maternal mortality and morbidity, neonatal mortality and stillbirths. The policy majorly focuses on labour rooms and maternity operation theatres in district hospitals. The purpose is to create better conditions for pregnant women in hospitals by assisting health personnel in providing safe and hygienic conditions to women at district hospitals. The statement of purpose of the policy explains what steps should be followed by the health personnel in labour rooms, operation theatre and Central Sterile Supply Department. The large focus of the policy is on clinical procedures.

2. Janani Suraksha Yojana [4]

The scheme was launched in April 2005 in all states and union territories and with special focus on low performing states. The scheme is sponsored by the central government and provides cash assistance with delivery and post-delivery care. The main objective of the scheme is to promote institutional delivery so as to curb maternal and neonatal mortality among the poor pregnant women of society.

The eligibility for cash assistance under the JSY is as shown below[5]:

Source: indiastat, https://www.indiastat.com

3. Janani Shishu Suraksha Karyakram [6]

Launched on 1st June 2011, is a scheme that covers both pregnant women and newborn child till 30 days of birth. The scheme provides the following facilities:

• Free and zero expense treatment.
• Free drugs and consumables.
• Free diagnostics & Diet.
• Free provision of blood.
• Free transport from home to health institutions.
• Free transport between facilities in case of referral.
• Drop back from institutions to home.
• Exemption from all kinds of user charges.

The scheme covers almost all issues related to maternal as well as newborn health. It provides easy accessibility to hospitals by cutting out transport and medical expenses.

The table shows the fund that has been allocated by the government under the Janani Shishu Suraksha Karyakram for various states between 2011 and 2017.

4. Navjat Shishu Suraksha Karyakram [7] (Nssk)

The program focuses on “care at birth issues” i.e. Prevention of Hypothermia, Prevention of Infection, Early initiation of Breastfeeding and Basic Newborn Resuscitation. The main objective of the scheme is to develop a country where each delivery point has trained personnel in basic newborn care. The 2-day training is given to the personals with the expectation of reducing neonatal mortality significantly in the country.

5. Infant and young child feeding [8]

Focusing on child survival, this is the only intervention for the same in the country. The scheme has the following features:-

• Early initiation (within one hour of birth) and exclusive breastfeeding until 6 months.
• Timely complementary feeding after 6 months with continued breastfeeding till the age of 2 yrs.

There are a number of other policies also which work for improving maternal health conditions. Such as Pradhan Mantri Surakshit Matratav Abhiyan, Sakhi Centers, maternity benefit bill etc.

2. What India Has Done For Maternal Health As Compared To Other Countries?

The findings of the World Health Organization reveal that 45,000 Indian woman dies from preventable pregnancy-related complications in India [9]. The WHO also estimates that out of 5,36,000 maternal death occurring annually, 1,36,000 deaths occur in India itself, which constitutes 25% of the total maternal deaths in the world.[10] While India continued to focus upon Economic Development during the 1990s, it completely ignored the maternal health and nutrition health of the country which resulted in an increase in Under 5-years mortality rate, increased infant mortality rate, increase in maternal mortality rate and a decline in other health indicators as well.

Talking about South-Asian countries, India has acquired and continues to acquire a substantial position in South-Asian economy. It is because of the deteriorating maternal healthcare in the world, especially in the developing countries, the WHO has sought to achieve the fourth and fifth Millennium Development Goals (MDGs) of improved child survival and health. South Asia accounts for 20% of the population of the world that is why proper attention needs to be paid to the South-Asian countries. Thus, a comparative analysis of maternal and child healthcare of India with other developing South-Asian countries like Bangladesh, Sri-Lanka and Nepal would show that up to what extent the policies and programmes of India have been successful in achieving the Millennium Development Goals and improving Maternal and Child healthcare in India.

As discussed earlier, the major indicators of Maternal and Child Health and Nutrition, as depicted in the Millennium Development Goals, include Under-5 years Mortality Rate, Maternal Mortality Rate and Infant Mortality Rate. A comparative analysis of India with Sri-Lanka, Nepal and Bangladesh with respect to Under-5 years Mortality Rate shows that a decline has been there in all the four countries. Statistically, in the year 2000, India had the highest rate at 87.7 followed by Bangladesh at 84.4 and Nepal at 82.9. Sri-Lanka continues to have a low rate of Under-5 years of Mortality since the beginning [11]. A comparative statistical study of all the four countries with respect to Under-5 years Mortality Rate is depicted in the following Figure 1:

Source: http://mdgs.un.org/unsd/mdg/Data.aspx

The findings are similar as in the case of Infant Mortality Rate as well, which are depicted in Figure 2 which is as follows:

Source: http://mdgs.un.org/unsd/mdg/Data.aspx

Statistical analysis of Maternal Mortality Rate as depicted in Figure 3 which, reveals that there has been a declining trend in the Maternal Mortality Rate. Nepal has been an attention seeker in the present case, surpassing India and reducing its Maternal Mortality Rate. Bangladesh is close to India while Sri-Lanka still maintains low levels of Maternal Mortality Rate which is less than 100 deaths/1000 live births.[12]

Source: http://mdgs.un.org/unsd/mdg/Data.aspx

All of the above statistics reveal that while India may have opted for various policies and programmes for effective implementation of improving Maternal and Child Healthcare, there has been no significant improvement in the abovementioned. The reason for the same is observed to be lack of proper governance, thereby resulting in an inefficient delivery system and deteriorating maternal as well as child health. Despite major programmes like National Rural Health Mission, which aims at expanding access to emergency obstetric and new-born care has increased the utilization with a positive effect on outcomes,[13] and Integrated Child Development Services being brought forward and launched by the Government of India, no significant improvement has been witnessed. India has also been receiving funds from the WHO and other international donors in the name of healthcare but the same has been utilized in other politically motivated areas. The above statistics clearly show that other South-Asian Developing countries have surpassed India in the matters of Maternal Health and Child healthcare.

Conclusion

The author has collected data from various reliable sources and has done intensive doctrinal and empirical research and have concluded that India still has a long way to go to achieve its goal so if the question is “whether India has done enough for maternal health” the answer would still be no, there is a long way to go, a number of policies have been formed but the policies lack in proper implementation. Poverty and illiteracy also contribute equally to poor maternal health conditions and high maternal mortality rates. Each country has different backgrounds and different economic conditions therefore, we can’t compare the policies of one country with another country. But, there are certain policies or scheme, if studied well, can have a global implementation. Hence, the author believes that India still has a lot to do in order to achieve good maternal health conditions, situations where a life is never sacrificed because of the lack of facilities and financial assistance. Hygienic and good health services are a basic right and should be given to all irrespective of their status. A woman suffers a lot and goes through a lot of problems during her pregnancy therefore, the state should take initiatives to improve living conditions for the to-be mother. Good health facilities will also affect the life of the newborn for the good. A healthy child would only act as an asset to the world.

References

[1]https://www.mhtf.org/2017/09/18/strategies-to-improve-maternal-health-in-urban-india-responding-to-urbanization-and-migration/

[2]https://www.mhtf.org/2017/09/18/strategies-to-improve-maternal-health-in-urban-india-responding-to-urbanization-and-migration/

[3]http://www.nhm.gov.in/nrhm-components/rmnch-a/child-health-immunization/child-health/guidelines.html

[4]http://www.nhm.gov.in/nrhm-components/rmnch-a/child-health-immunization/child-health/schemes.html

[5]http://nhm.gov.in/nrhm-components/rmnch-a/maternal-health/janani-suraksha-yojana/background.html

[6]http://www.nhm.gov.in/nrhm-components/rmnch-a/child-health-immunization/child-health/schemes.html

[7]http://www.nhm.gov.in/nrhm-components/rmnch-a/child-health-immunization/child-health/schemes.html

[8]http://www.nhm.gov.in/nrhm-components/rmnch-a/child-health-immunization/child-health/schemes.html

[9]file:///C:/Users/g/Downloads/maternal-health-mortality%20Source%201.pdf

[10]https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2761784/

[11]http://www.isec.ac.in/WP%20323%20-%20K%20Gayithri_1.pdf

[12]http://www.isec.ac.in/WP%20323%20-%20K%20Gayithri_1.pdf

[13]https://ijmedph.org/sites/default/files/IntJMedPublicHealth_2014_4_1_33_127120.pdf,

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This article is written by Yash Jain, a third-year student of Institute of Law, Nirma University. The article expounds the concept of cyberspace and explicates the intricate issues related to the cyber world. Further, the article runs down to new challenges that the cyber industry faces in the modern era of cybersecurity.

Introduction

Fundamentally till World War II, the country was in 3 areas of warfare, that are land, sea and air. Today it is expanded to cyberspace and space. Some basic questions on which we need to ponder are, like who all use google, android, social media etc. The fact that the usage of internet has become a need today for many people. Crimes that result in a breach of cybersecurity has become highly prevalent today. There is a need to become aware of using technology, be it net banking or social media, etc.

Being connected in a global domain due to the Internet can be both beneficial and dangerous. One needs to understand its implications and be aware of the same.

There are two types of setups in a computer system- 1) hardware and 2) software. While the major developer of computer hardware is China, the software industry is held by the United States. The major 3A’s – Amazon, Alphabet and Apple constitute a vast share of the IT sector in the world, almost around 70%. This shows the control of data information of many people in the hands of few who then use the data to their advantage.

Advantages of the Internet

• Connectivity
• Accessibility to everything
• Improved communication

There are some disadvantages of the Internet also

• Privacy Infringement
• Misuse of Information
• Cyber crimes

In short, Everything connected as a result of the Global Network.

Difference between Cyber Security and Information Security

Cybersecurity: The ability to protect or defend the use of cyberspace from cyber-attacks is called cybersecurity.

Information Security: The protection of information and information systems from unauthorized access, use, disclosure, disruption, modification, or destruction in order to provide confidentiality, integrity, and availability.

What is Cyberspace?

For the first time in 1984, the word ‘cyberspace’ was used in the Novel ‘Neuromancer’ by Willam Gibson which is a science fiction and defined as an interaction between the human mind and computers.

Cyberspace refers to a virtual computer world having an electronic medium which forms a global computer network and facilitates online communication. Cyberspace is an illusory environment in which online communication happens. As a social experience, individuals can interact, exchange ideas, share information, provide social support, conduct business, direct actions, create artistic media, play games, engage in political discussion, and so on, using this global network. It has its own existence and is not synonymous to the internet which is only a medium and that cyberspace has its own independent existence.

The Indian Online market is the 2nd largest market behind China, accounting for 462 million internet users and 200 million active Social Media users. Out of this 71% are male users and 29% female users. The highest activities are recorded in the 6 pm to 10 pm time duration, with Mumbai and Delhi having the highest Internet traffic. India has the largest e-commerce sector in the world. Also, the Facebook App is currently being used by most of the Indians in the world. There are a lot more statistics which shows some great degree of usage of the Internet by Indians.

The above stats and figures only highlight what severe implications Indian users can have in the case of breach of cybersecurity. The information that is asked by various applications and websites may breach a person’s privacy and security like contact no., email id, detection of location, permission to use media, etc.

Features of Cyberspace

1. Borderless territory.
2. Interactive Virtual Environment.
3. Unlimited accessibility.
4. Ubiquitous in nature.
5. Dissemination happens simultaneously.
6. Duplication or copy is as original as the original work.

Data Regarding Indian Cyberspace

1. 45.15% of the total population of India has access to the internet.
2. India has the world’s largest number of Facebook users.
3. India has the second largest online consumer base after China.
4. Mumbai and Delhi account to higher internet traffic than other cities.
5. Internet usage in India is primarily male-dominated.

Anatomy of Cyber World

1. Surface web: (constitutes only 4% of cyberspace) Facebook, WhatsApp and other social media and online websites are a part of the surface web.
2. Deep web: (constitutes only 90% of cyberspace) It is generally not directly accessible but accesses through Ids and passwords. Examples are medical records, legal documents, government files, organization-specific repositories, financial records and other virtual information.
3. Dark web: (constitutes only 6% of cyberspace) All the illegal acts are performed in this space like pornography, illicit trade, illegal drug trade through the silk route.

Historical Data Breaches

• Ashley Madison Hack Case: Vast data comprising, contact no., addresses, names, etc. ended up upon the darknet for sale.
• Silk Road: An online darknet market for the sale of illegal drugs. It could be used by people anonymously.
• COSMOS Bank: Here, VISA and Rupay details were uploaded on the dark web, resulting in 94 crore theft from the bank.
• Yahoo: 3 billion accounts were hacked making it the biggest data breach in the history.
• eBay: Requested 145 million users to change their passwords after Yahoo.
• JP Morgan: 83 million household and business accounts breached.
• According to Kaspersky, there are 3,15,000 viruses created every day.
• According to Checkpoint, a market leader in security products, around 10 million devices, are using such malicious apps, with Hummingbird Virus.
• Infection largely depended on the Android version, KitKat (50%), Lollipop (7%), Jellybean (40%) Ice Cream Sandwich (2%) and Marshmallow(1%).

Cybersecurity: A New Challenge

Challenges that the technology space faces in cybersecurity are the following:

Ransomware Evolution

Ransomware attacks are one of the areas of cybercrime growing fastest in the economy. Ransomware is the bane of cybersecurity, IT, data professionals, and executives. Perhaps nothing is worse than a spreading virus that latches onto customer and business information that can only be removed if you meet the cybercriminal’s egregious demands.

Malware Attack

Malware is an all-encompassing term used for a variety of cyber attacks including Trojans, viruses and worms. Malware is simply defined as a code with malicious intent that typically steals data or destroys something on the computer. Viruses attach themselves to clean files and infect other clean files. They can spread uncontrollably, damaging a systems core functionality and deleting or corrupting files. They usually appear as an executable file that you may have downloaded from the internet. Trojans is a kind of malware disguises itself, it acts as legitimate software or is included in the legitimate software that can be tampered with. It creates backdoors in your security to let other malware in. Then, there are worms which are entire networks of devices either local or across the internet by using the network’s interfaces. It uses each consecutive infected machine to infect more.

Phishing

Phishing is like posing a request for data from a requested third party. Phishing attacks are sent via email and ask users to click on a link and enter their personal data. Phishing emails often falls into the category of spam but are way more harmful than just a simple ad.

Password Attacks

An attempt to obtain or decrypt a user’s password for illegal use is commonly known as a password attack. Hackers can use cracking programs, dictionary attacks and password sniffers for password attacks. Password cracking refers to various measures used to discover computer passwords. This is usually accomplished by recovering passwords from data stored in or transported from a computer system. Password cracking is done usually by repeatedly guessing the password through a computer algorithm in which the computer tries numerous combinations until the password is successfully discovered.

Password attacks can be done for several reasons but the most malicious reason is that in order to gain unauthorised access to a computer with the computer’s owners awareness not being in place. This results in cybercrime such as stealing passwords for the purpose of accessing bank information.

DDoS Attacks

It stands for distributed denial of service. It focuses on disrupting the service to a network. Attacks send a high volume of data traffic through the network until the network becomes overloaded and can no longer function. DDoS attacks involve the attacker using multiple computers to send the traffic or data that will overload the system. In many instances, a person may not realise that his or her computer has been hijacked and is contributing to the DOS attack.

Disrupting Services can have serious consequences relating to security and online access. Many instances of large scale dos attacks have been implemented as a single sign of protests towards governments or individuals and have led to major severe punishments including major jail time.

Man in the Middle Attacks

By impersonating the endpoints in an online information exchange the man-in-the-middle attack can obtain information from the end user and the entity he/she is communicating with. For example, if you are communicating online, the man in the middle would communicate with you. By impersonating your bank and communicate with the bank by impersonating you. The man in the middle would then receive all of the information transferred between both the parties which could include sensitive data such as bank accounts and personal information.

Malvertising

Malvertising is the name given in the security industry to those activities which are criminally controlled advertisements that intentionally infect people and businesses. These can be an ad on any site often ones which people use as a part of your everyday internet usage and it is a growing problem as is evident by a recent US Senate report and establishment of bodies like trust in ads.

These challenges can be under surveillance and methodical steps can be taken to avoid such malpractices. Large technology firms should collaborate and create solutions to increase security for their customers. Security controls need to move outward, beginning at the application level where such frauds can be caught easily. When there are no unified monitoring methods, firms become vulnerable.

However, when every network has monitoring that detects changes, data can be protected. With growing technology, the growth of cybercrime is evident but measure taken early and effectively can avoid cyber mishaps both big and small.

Categories of Cyber Crimes

1. Cybercrime against persons (Examples are: Harassment, Spoofing, Carding, Stalking)
2. Cybercrime against property (Examples are: IPR, Data theft, Trespass, Squatting)
3. Cybercrime against infrastructure (Examples are: Attack on Critical Infrastructure)
4. Cybercrime against society (Examples are: Pornography, Gambling, Cyber trafficking, Forgery etc.)

Types of Cyber Threats

1. Email account hacking
2. Credit card fraud
3. Online share trading fraud
4. Theft of confidential information
5. Software piracy
6. Music piracy
7. Phishing
8. Online scale of illegal articles
9. Use of the internet by terrorists
10. Virus, Worms and Trojans

Legal Infrastructure for Protection Against Cybercrime

Indian Legal Infrastructure for Cyberspace includes:

• Indian Penal Code, 1860.
• Immoral Traffic (Prevention) Act, 1956.
• Information Technology Act, 2000.
• Sexual Harassment at Workplace (Prevention and Prohibition) Act, 2013.

Online Reputation Management Tools

• Google Alerts
• Naymz
• Hootsuite

Best Safety Practices

• Web of Trust: Tells you which website should to Trust.
• Chat securely: gives encryption about the chat.
• Blur, Second thought, etc.

Concluding Remarks

The nebulous area of cyberspace introduces both the risks of becoming a victim and the precautions and laws to deal with a cyber offence. There is huge usage of the internet today but people do not know the degree of its vastness. Figures tell us the degree of risks people take while using the internet. There are various laws that deal with the area of cybersecurity. These laws are made to strengthen the deficiency that is there in the cyberspace world. There is a paramount need of having the data secured which will not be open to any site straightaway.

References

• https://niti.gov.in/writereaddata/files/document_publication/CyberSecurityConclaveAtVigyanBhavanDelhi_1.pdf.
• https://cyberblogindia.in/hummingbad-malware-heard-of-it/.
• https://www.itu.int/ITU-D/cyb/cybersecurity/docs/Cybercrime%20legislation%20EV6.pdf.
• https://www.globalsign.com/en-in/blog/cybersecurity-trends-and-challenges-2018/.
• http://www.convergenceindia.org/blog/cyber-security-challenges-solutions.aspx.
• https://www.dsci.in/content/cyber-security-challenges.
• https://www.financierworldwide.com/cyber-security-the-dos-the-donts-and-the-legal-issues-you-need-to-understand#.XQx48LwzbIU.
• https://iclg.com/practice-areas/cybersecurity-laws-and-regulations/india.
• https://ilr.law.uiowa.edu/print/volume-103-issue-3/defining-cybersecurity-law/.
• https://www.welivesecurity.com/2017/03/13/challenges-implications-cybersecurity-legislation/.
• https://www.geeksforgeeks.org/difference-between-cyber-security-and-information-security/.

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This article is written by Sparsh Mali, a fourth-year law student at the School of Law, UPES, Dehradun. The article explains about the two Non-Discriminations Principles of WTO and brief about the application of MFN & National Treatment principles.

Introduction

Non-discrimination is a fundamental principle of the World Trade Organization (WTO) and is embodied in the:

• Most Favoured Nation Treatment; and,
• National Treatment.

We can see different multilateral rules and principles which were set up in 1947 to govern International trade relating to goods between member nations of GATT, 1947. After the great development in the Uruguay Round which leads the Marrakesh Agreement and established the World Trade Organisation on 1 January 1995, the basic principle of non-discrimination principle formed in 1947 is consistently same to the latest organisation between member nations. The only things which are amended in these principles were the scope otherwise the objective of these principles is the same as of framed in 1947.

Article I and Article III of the GATT 1994, deals with Most Favoured Nation Principle and National Treatment Principle respectively. With further development in the scope of these principles, now these principles not only deal with the trade in goods practices rather now they also govern the trade in services and trade in IPR.

The MFN Principle

A most-favoured-nation (MFN) principle explains the concept where a country has to grant some privileges related in a trade agreement to any of the member nations of the World Trade Organization. The concept not only ends here, but the main principle of the MFN principle is also that if any privileges are granted to any member nation by another member nation of the WTO then the same privilege of like products has to be given to all the other member nations of the WTO. The main objective of these principles is to promote trade and provide equal opportunity to get the best benefits of any member nation’s resources.

Illustration- If India grants special treatment to Germany, that goods imported especially related to motor vehicle industry from Germany to India will have no import duty of trade tariff and in the manner, Germany excludes India from trade tariffs and import duty about thee the goods imported to Germany from India. Then according to the MFN principles, both Germany & India are violating the MFN principles of GATT, 1994 and both the country has to avail the same benefit or privilege to all the member nations of the GATT 1994. Which means India should privilege every member nation in excluding trade tariff of goods related to motor vehicles and the same privileges have to be granted by Germany to all the other member nations of GATT 1994.

Article I:1 of the GATT, 1994 (MFN PRINCIPLE)- With respect to customs duties and charges of any kind imposed on or in connection with importation or exportation or imposed on the international transfer of payments for imports or exports, and with respect to the method of levying such duties and charges, and with respect to all rules and formalities in connection with importation and exportation, and with respect to all matters referred to in paragraphs 2 and 4 of Article III, any advantage, favour, privilege or immunity granted by any contracting party to any product originating in or destined for any other country shall be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other CONTRACTING PARTIES.

Interpretation of ArticleI:1 of the GATT 1994 (MFN Principle)

Rationale Behind The MFN Principle. The MFN principle works to:

• Maximize efficiency.
• Minimize transaction costs.
• Promote further reciprocal liberalization- This benefits particularly small developing countries, which benefit from the most favoured treatment provided to other Members.
• Minimize the costs of trade negotiations.