This article is written by Neha Gururani, a student of Guru Gobind Singh Indraprastha University, New Delhi. In this article, she has discussed the Hindu law of Partition, its effect and various distinct features.

Meaning, Effect and Essence of Partition

Partition is an eventuality in Hindu Joint family through which the joint status of a family comes to an end. Partition gives rise to new joint families or nuclear families. For partition, there must be at least two coparceners in the Hindu joint family because then only there will be a state of jointness amongst the coparceners which will come to an end by partition. It implies that until and unless a coparcenary exists in a family, partition cannot take place.

The concept of coparcenary is an innate part of the Hindu joint family property. Each coparcener has an inherent title to the joint property and all the coparceners together own the whole property.

Partition generally means that joint ownership has transformed to separate ownership of the individual coparceners. Thus partition is also defined as “the crystallization of the fluctuating interest of a coparcenary property into a specific share in the joint family estate.”  

The concept of partition is applied with different rules under the two schools of Hindu law.

Dayabhaga School: Under Dayabhaga school, partition means division of property in accordance with the specific shares of the coparceners i.e. partition by metes and bounds.

Mitakshara School: Under Mitakshara school, partition not merely means division of property into specific shares. It basically means severance of joint status. Essential of coparcenary is important but existence of joint property is not essential for demanding partition. It is a law by which the joint family status terminates and the coparcenary comes to an end. All that is necessary to constitute a partition is a definite and unequivocal declaration of the intention by a coparcener to separate himself from the family.

Effect of Partition

Partition leads to separation from the joint family. After partition, a person is free from the rights, duties and responsibilities towards the joint family thereof. On partition the shares of the coparceners get defined and stop fluctuating further due to births and deaths in the family. Property acquired by a coparcener after partition is treated as his self acquired/separate property which devolves by succession.

Essence of Partition

Partition must not be confused with the de facto division of property and allotment of the shares. Partition by metes and bounds is not mandatory ingredient for completing the process of partition. The physical division of the property affects the mode of enjoyment and management only and not the nature of its tenure. Strictly speaking, a partition is said to be completed the moment the severance joint status takes place.

Types of Partition

Coparcenary is a creature of Hindu law. The concept of coparcenary encompasses community of interest and unity of possession. Each coparcener’s right extends to the whole joint family property; though each one of them has an interest in the whole family property, he has no definite share therein. Partition can take place in two ways:

• De jure Partition: When the community of interest is broken or divided and converted into a fix share leaving no scope for the application of doctrine of survivorship, this type of partition is known as de jure partition or in other words, the severance of the joint status.

• De facto Partition: Unity of possession can be maintained even after a severance of joint status. The shares might get fixed but no coparcener can claim any property as falling into his exclusive share. It is not clear that which property will go to which coparcener. When this unity of possession is broken by an actual physical division of the property and replaced by exclusive possession, it is called as de facto partition or partition by metes and bounds.

Subject Matter of Partition

Generally the entire joint family property constitutes the subject matter of the partition. Separate or self-acquired property of any member of the family is not eligible to be divided amongst all the coparceners of the family on partition.

If partition of a property can be done without shattering the intrinsic value of the whole property, such partition is mandatory to be made. On the contrary, if a partition cannot be made without shattering the intrinsic value of the property, in such circumstances, a money compensation must be given to every coparcener instead of his respective share.  

If a joint family property consists of movable and immovable properties then each coparcener must be given his share in all movable and immovable properties. As per the interpretations of the court in various cases, there is no hard and fast rule as far as the share of each coparcener in immovable properties is concerned. It may be possible that some coparceners may not get any share in immovable property. It depends upon the nature and number of the immovable properties and also the number of coparceners in a joint family to whom the share in the property has to be given. Properties of greater value may go to one coparcener while of lesser value to another. In such a situation, the adjustment of the value is important. So, the coparcener who gets the larger value property may provide money to the one who gets the share of lesser value. In this way, a justified and satisfactory division of joint property can be done so that each coparcener is equally benefited.

Properties not subject to Partition

As a general rule, the whole joint family property is available for partition. Exceptionally, there are certain kinds of joint family property which are incapable of division by their nature. Such properties are impartible and indivisible. The following are the description of such properties and rules in this regard:

• Impartible estates: The property which descends to one member of the family to the exclusion of other members either because of the application of the rule of primogeniture (the status of being the firstborn child among several children) or by a custom or under any provision of law.
• Indivisible property by its nature: There are certain properties which are incapable of division by their very nature. For example, animals, wells, stair case, furniture, utensils, ornaments etc. The general division of these types of property will lead to distortion of their intrinsic value, thus cannot be divided directly. Therefore, these can either be sold and its value is distributed among all the coparceners or may be distributed by agreement by adjusting the corresponding values of the properties. While distributing such properties, due care must be taken to maintain equality in share of each coparcener.
• Dwelling house: If we consider the ancient view, the dwelling house should not partitioned. But according to the modern perspective, the law does not consider this ancient rule as sacrosanct. A partition of a dwelling house can be done through a decree by court. The court will put all its effort to make such an arrangement so that all the coparceners are equally benefited. If the court fails to make equitable agreement, the dwelling house will be sold and the value will be divided equally among all the coparceners.
• Family shrines, temples and idols: These are the kinds of properties which can neither be divided nor sold. For such properties, the courts have adopted the following systems:
• The possession of idols, temples or shrines may be given to the senior most coparcener or a junior coparcener if he seems to be more religious or suitable amongst all others with a liberty to other coparceners to access them for the purpose of worship at all reasonable times.
• The coparceners may hold them turn wise for a period in proportion to their share in the property.
• Staircases, wells, etc: The species of property like staircase, wells, courtyards, tanks, roads, etc. are incapable of division and valuation by their nature of existence. For such properties, an arrangement has to be formulated so that they remain in common use of all coparceners.                                          

How does Partition come into effect?

Effecting a partition simply means effecting of severance of joint status of a coparcener in a Hindu joint family. There are two essentials of a partition:

1. The physical division of property by metes and bounds.
2. The severance of the status of the joint family property.

As far as effecting a partition is concerned, the second essential plays a very significant role. The physical division of the property is a decision of an individual and comes into effect by expressing an unequivocal desire to get separate from the joint family property. The severance of the joint status is the resultant of the individual’s decision which may be arrived at either by private agreement of the parties or if not then, by the interference of the court.

Essentials of a valid Partition

A coparcener has a right to demand partition any time without the consent of the other coparceners. It is immaterial whether the other coparceners want to remain united with him or not. A demand, in order to bring the severance of the joint status must comprise of the following three things:

1. Formation of an intention to separate from the joint family.
2. A clear, unequivocal and unilateral declaration of the intention to separate.
3. The intention must be communicated to the Karta or to other coparceners in his absence.

Now these three essentials are discussed in detail below:

• Formation of Intention: It is important that a coparcener must form an intention to partition. His thoughts must be clear that he no longer believes in the community interest. There must not be any doubt and ambiguity regarding his intention to partition and get separated from the Hindu joint family property.

• Declaration of Intention: Once an intention to get separated is formed, it must be followed by an unequivocal, definite and unilateral declaration of partition from the family and enjoy his share in severalty. The severance of status is done by the declaration because severance is a particular state of mind and the declaration is a mere manifestation of that mental state. It is not compulsory that a declaration has to be accompanied by any explanation or justification. No one is empowered to go into the reasons which necessitated the coparcener to take such a deep step not even the court.

• Communication of Intention: Declaration explicitly means that it should be brought to the knowledge of a person affected thereby. An uncommunicated declaration of intention can amount to a desire to partition but not severance of the status. The member who seeks his separation from the other members must make his intention known to the other members from whom he wants to be separated. Communication is a prerequisite to effect partition.

• Means of Communication: The process of manifestation of one’s intention varies with the facts and circumstances of each case. It is not necessary that there should be formal despatch or receipt by other members of the family of the communication announcing the intention to divide on the part of one member of the joint family. What matters the most is that the declaration must reach to the person or persons affected by such partition.
• To whom the intention be communicated: The communication must be made to all the persons who are the part of coparcenary property including the Karta. It is not so that communication only made to Karta is sufficient. Every coparcener must get the notice of declaration separately and whether he accepts it or not is not important. Even if he refuses to accept, the communication is enough and effective.

In case of a minor coparcener, the notice made to Karta is enough as he is the legal representative of the minor coparcener.

• Effective date of severance of joint status: The difficult question with regard to communication arises is when should the communication of intention be deemed effective. There could be two possibilities in this situation. Either it could be effective from the date of transmission of the communication or from the date on which it reaches the coparceners. It is concluded from various judicial interpretations that the partition takes effect from the date when the intention is framed and expresses and not from the date it reaches to the knowledge of all the coparceners.  

Various Modes of Partition

Partition leads to division of status. The severance in the joint status could be brought about in the following ways:

• Partition by father during his lifetime: Under the Hindu law, a special power is given to father in the exercise of which he can bring out partition on his own if the coparcenary consists of the father and his sons only. He can separate his sons from himself and also separate the sons from one another without the consent of the sons. This power of father is a part of the ‘patria potestas’ (paternal power) that was recognized by Hindu law.

• Partition by Individual Coparceners through unilateral declaration: The unilateral declaration of intention of partition by a coparcener is sufficient for the severance of status provided that the communication of the intention of partition must be made clearly. The consent of the other coparceners is not necessary.

• Partition by Agreement: A partition may also come into effect between the coparceners through an agreement. An agreement constituting partition must define the share of each coparcener with an intention of immediate separation. The court does not recognize any partition until the agreement of partition comes into effect. Partition can be effected either orally or in writing. It is not necessary that a written agreement has to be registered if it has a record of what had happened. However, if the properties are divided by the agreement, registration is mandatory.

• Partition by Conduct: When the coparceners of the family actually divide the family property by metes and bounds and each member enjoys the possession of the share allotted to him separately, the partition is said to take place by conduct. The conduct for severance of status varies from case to case.

• Partition by Suits: The most common way to express one’s intention to separate himself from the joint family property is filing a suit in the court. As soon as the plaintiff expresses his unequivocal intention to get separated in the court, his status in the joint family property comes to an end. However, a decree from the court is required which decides the respective shares of the coparceners. The severance of status takes place from the date of filing such suit in the court. Both a minor and a major coparcener may approach the court for this purpose.

• Partition by Notice: The essential element of partition is the intention to separate which must be communicated to other coparceners. Therefore, partition may come into effect even by a notice to the coparceners, whether accompanied by a suit or not.

• Partition by Arbitration: In this mode of partition, an agreement is made amongst the coparceners of a joint family in which they appoint an arbitrator to arbitrate and divide the property. Such a partition becomes operative from the date thereof.

• Partition by Conversion: Conversion of a coparcener to a non-hindu religion automatically leads to the severance of status of that coparcener from the joint family. He loses his membership of the coparcenary but this doesn’t affect the status of other coparceners inter se.

The same result follows in case a coparcener marries a non-hindu under the Special Marriage Act, 1954.  

• Partition by Will: Before the enactment of the Hindu Succession Act, 1956, the undivided interest of a coparcener in the joint family property devolved on his death by the rule of survivorship. So, a coparcener cannot make an effective will for his coparcenary interest.

But, Section 30 of the Hindu Succession Act, 1956, confers the right to coparcener to make testamentary disposition of his interest in the joint family property. This right can be used for separation also. Therefore, a coparcener can make a valid will to separate his interest from the joint family property and to be donated to a hospital, school, any other person, etc.

Right to Demand Partition

As a general rule, every coparcener of a Hindu joint family is entitled to demand partition of the coparcenary/ Hindu joint family property. However, every coparcener has not an unqualified and unrestricted right to enforce partition. The ambit of their right to effect partition can be studied under the following heads:

• Special power of father: Under the Mitakshara law, a Hindu father can affect a partition between himself and his sons and also among his sons. Despite the express dissent of his sons, he can exercise this right. The consent of sons is not compulsory. The father is authorised to divide the title as well as the corpus of the property by metes and bounds. This right of father has three restrictions on it-

1. Father can divide his property only during his life time but not by will after his death. A testamentary partition can only take place with the consent of all the coparceners.
2. A father cannot effect partial partition among his sons without their consent.
3. The allotment of the property must be equal and fair, He must treat every son equally by giving equal share to everyone and should not favour one against the other. If the sons find that the partition was not just and fair, they may challenge such partition in the court and ask to reopening the partition for the purpose of readjusting shares.

• Son, Grandson and Great-grandson: All coparceners, who is major and of sound mind is entitled to demand partition anytime irrespective of whether they are sons, grandsons or great-grandsons. A clear demand made by any coparcener, with or without reasons, is sufficient and the Karta is legally bound to comply with his demand.

• Daughters: Under the Hindu Succession (Amendment) Act, 2005, it has been admitted that a daughter can also be a coparcener in the Mitakshara Coparcenary like a son and has all the rights that any coparcener has. Therefore, a daughter has also acquired the right to claim partition in the same way as if she was a son.

• Son in the womb: A son who is in the womb at the time of partition and born alive thereafter, is also entitled to a share, though he was not in existence at the time of Partition. Under Hindu law, a child in the womb is considered to be as good as in existence for this purpose.  A separate share has to be allotted to him. If his share is not kept, he has the right to ask for the reopening of the partition so that his share may be allotted to him thereby.

• Son conceived and born after partition: The right of a son who is conceived and born after the partition depend upon whether the father has taken a share for himself at the time of partition from his sons. Where the father has taken no share for himself at the time of partition , the son conceived as well as born after partition can demand the reopening of the partition and obtain his share. In such a case not only the property which existed at the time of the earlier partition is subject to the repartition but also the property came into existence thereafter.

Where the father has reserved share for himself, a son who is begotten as well as born after Partition, is not entitled to have a partitioned reopened, but in lieu thereof he is entitled after the father’s death, to inherit not only the share allotted to the father on partition but the whole separate property of the father, whether acquired by him before or after partition, to the entire exclusion of the separate sons.

• Adopted Son: The inequality between a natural son and an adopted son on the issue of their shares on the partition of the coparcenary property has been abolished by the Hindu Adoption and Maintenance [HAMA] Act, 1956. Adopted son is now entitled to equal share and has the right to demand partition just like a natural born child.

• Son born of a void or voidable marriage: A child born of a void or voidable marriage, is a legitimate child of the parents and therefore, statutorily entitled to inherit their separate property. At the same time, he cannot inherit property from any other relative of parents. Due to statutory legitimacy, he can be treated as a coparcener only for the properties held by the father. He is not entitled to seek partition during the lifetime of the putative father. Moreover, he can seek partition only after the death of the father. It can be concluded that the rights of a son born of a void or voidable marriage are better than those of an illegitimate child, but inferior to those of a child born of a valid marriage.

• Illegitimate son: The rights of an illegitimate son are the subject of special rules of Mitakshara. The rules differ from class to class. In the higher three classes, no illegitimate child is entitled to the share in the coparcenary property. Although, he cannot ask for partition but still he is entitled to maintenance as long as he lives, in recognition of his status as a member of his father’s family. This rule is not followed by Shudras.

• Minor Coparcener: The existence of a minor coparcener is not a bar to partition and a minor has equal rights to claim partition in the coparcenary property just like a major coparcener. The only condition that applies in the case of a minor is that the suit for partition has to be filed by a guardian or next friend on behalf of the minor. A suit filed by a major coparcener itself brings partition but this is not mandatory in the case of a minor coparcener. The court will pass a decree for partition only if it finds that the partition is in the best interests of the minor and will benefit him. If the court finds it to be against the welfare of the minor, it will dismiss such suit.  

• Disqualified and Absent Coparcener: Any coparcener who is disqualified from inheriting under any defect are equally disentitled to a share on partition.

If any coparcener is absent  at the time of partition due to a strong reason and his share is not kept, he is entitled, on his reappearance to demand partition through reopening.

People who are entitled to a share in partition

The general rule is that any non-coparcener members of a joint family, whether male or female is not entitled to get a share in the joint family property on partition. However, this rule goes with certain exceptions under the Mitakshara law. The Mitakshara law safeguards and protects the rights of women of the family including wives, widows, mothers and daughters. These members of the Hindu Joint family have no right to demand partition but if anyhow partition takes place, they are entitled to their respective shares. For these females, the entitlement of shares arises only if there is severance of status of the joint family accompanied by a partition by metes and bounds. If she is not allotted with her share at the time of partition, she has the right to reopen the partition to claim her share.

• Father’s wife: A wife does not have a right to demand partition in a Hndu joint family as she is not recognized as a coparcener. But if partition takes place between her husband and sons, she is entitled to get a share equal to that of a son. If a father was married before the enactment of the Hindu Marriage Act, 1955, and has more than one wife, each wife is entitled to a separate share equal to that of a son. However, if the father dies before partition, the son will take the entire property under the doctrine of survivorship and the wife/wives will not get any share.

• Widowed mother: After the death of the father, if a partition takes place between the brothers, their widowed mother will get the share equal to the share of a brother. Widowed mother includes the step mother too if she was married to the father prior to the HMA, 1955.

• Paternal Widowed Grandmother: She has no right to demand partition but if a partition is taking place between her grandsons, she is entitled to get a share equal to that of a grandson. Grandmother includes step grandmother too.

Besides these three females, no one else is entitled to receive a share on partition. Daughter since, is considered as a coparcener, has the right to demand partition after the amendment of the legislation, thus, is not entitled to get share.

Minor’s Suit for Partition

According to the rule of Hindu law, if a minor has an undivided share in the joint family property, the karta of the joint family is the guardian of that interest of the minor. But, where the right to demand partition comes into consideration, there is no difference between the rights of a major and a minor coparcener in this regard. Under a joint family, it would not be wrong to say that the karta of the joint family has an absolute right to manage the family and represent the minors of the family wherever required. But this right of karta is valid till the family is joint.

Where there is severance in the joint status of the family, the karta has no more right to act on behalf of the minor. Even a partition entered into by a person other than the father or mother on the behalf of the minor is valid. While considering a minor’s right what matters the most is that the act must be done in the best interest and benefit of the minor. The rules for major and minor coparceners may differ because the law has a soft corner where the minor coparcener’s rights come into play.

It must be clear now that a minor coparcener can also make a valid partition. Therefore, minority is not a bar to partition. If a partition is made with bona fide intention and good faith, it is binding upon the minor as well. But in case, if a minor is treated biasly and unfairly, partition can be reopened on his demand.

A minor has the right to claim partition just like an adult coparcener by filing a suit through his guardian or next friend. The court plays a very crucial role when it comes to minor’s right. Unlike a suit filed by a major coparcener, the court is not bound to pass a decree for partition. If it found that the partition is not beneficial to the minor, the court may dismiss the suit. Thus, it is not obligatory that the court will definitely execute a partition in all the cases where a suit of partition on behalf of minor coparcener is instituted. It is the duty of the court to protect the rights and interests of a minor coparcener to avoid any kind of injustice and prejudices treatment with him.

Death of a minor coparcener before suit for partition is decided: The Supreme Court has settled in a well-defined and distinctive terms that the death of a minor coparcener while the partition suit is pending before the court will not lead to abatement of the suit. A leading case law in this regard has discussed below:

Case: Peda Subbayya v. Akkamma[1]

Facts: In this case, the minor and his mother was thrown out of the house and the father and two other sons (from first wife) was selling the joint family property including the shares of the minor and were purchasing their new individual property.

The maternal grandfather of the minor of age 2.5 years filed a suit on behalf of the  minor for partition. The petition was admitted by the court but ,meanwhile the minor died. His mother was recognised as his legal representative and transposed as the plaintiff.

Held: The court held that minor’s suit for partition can be filed by next friend only if it is beneficial for the minor. If the minor dies meanwhile, the saame can be continued by legal representative of the minor. The suit must be in the good interest and welfare of the minor.

Therefore, the suit was maintainable even after the death of the minor.

Reopening of Partition

As per the general rule, once a partition is made it cannot be reopened because a share can be divided only once.  However, there are certain exceptions to this general rule. Following are the cases where partition can be reopened:

• Re-adjustment of Assets: It may be possible that during partition there has been a bona fide mistake as to the property division which may cause loss to a coparcener. In such a case the coparcener claims to be reimbursed for the loss of the property. All the coparceners have to bear the burden of loss. Readjustment after recognizing the mistakes is not barred by law.

• Use of malpractice: A partition effected among the coparceners of the Hindu joint family with their consent and by volition cannot be reopened. If it is proved that the consent of the coparceners is obtained by any malpractice like fraud, coercion, undue influence, misrepresentation etc., the partition is eligible to be reopened. However, the court requires a strict proof of facts in such cases. If the facts clearly shows that the partition was done with proper deliberations, the court doesn’t entertain a plea to reopen the partition in such circumstances.

• Son in the womb: A son who is in the mother’s womb at the time of partition is entitled to a share in the joint family property as if he is in existence at the time of partition, though born after partition. If no such share is reserved for him at the time of partition, the partition can be reopened to allot his share to him.

• Disqualified or Absentee Coparcener: A disqualified coparcener who recovers from his disqualification after the partition, can get the partition reopened.

If a coparcener is absent at the time of the partition for a valid reason and no share is allotted to him, he can get the partition reopened.

• Injustice to Minor Coparcener: If a partition among the coparceners of the Hindu joint family consisting of minor coparceners is proved to be unfair and unjust and is inimical to the interests of minors, such a partition can be reopened.

Reunion

Meaning and Essential elements of Reunion

The word ‘reunion’ is self- explanatory. It simply means establishing the joint status of a family again which was lost due to partition amongst the coparceners. After a partition takes place in a Hindu joint family, reunion is the only way left through which the joint status of the family as before the partition can be regained.

Reunion can take place among those members who originally had the joint status in the property as a coparcener. In other words, only those persons can reunite who were the parties to the original partition.

While reuniting, the intention of the parties is an essential factor. To constitute a reunion, there must be an intention of the parties to reunite in estate and interest. The intention should be aiming towards reversing the present status to the former status of joint tenancy. Absence of intention will not lead to reunion. Also, mere living together without any intention of reunion, will also not considered as a reunion. The intention must be communicated clearly and unequivocally. The act of the reuniting must be unilateral i.e. each coparcener must give his consent for reunion. It can come into effect only on mutual agreement of all the parties whereby all the members agree to regain their joint status and thus, forming a Hindu joint family again.

It is not necessary to have any formal agreement of reunion. It may be oral or written which is not mandatory to be registered or by the conduct of the parties.

Effect of Reunion

The first effect of reunion is to remit the reunited members to their former status as members of a Hindu joint family. Secondly, through reunion, the property in the hands of the separate members is thrown back to the pool of Hindu joint family property.  The members regain the status of undivided coparcerners. Therefore, the reunion restores the joint family to its former status and position so that there must not exist any difference in any essential particular from the status of family before partition.

It is a well established law that a Hindu family is presumed to be joint until the contrary is proved. But as soon as the partition is proved , the presumption is that the family is divided and will remain the same. Reunion of partition is a rare event which barely takes place in cases. Therefore, when a reunion is pleaded before any court, it must be strictly proved that partition took place in the joint family. The evidence must be clear and consistent. Any kind of ambiguity in the conduct of the parties or in the evidence will not sustain a plea of reunion.

Conclusion

Therefore, it can be concluded that partition is a tool which performs the function of bringing a Hindu joint family to its end. Through the mechanism of partition, a joint family property becomes the self-acquired property of each coparcener as per their shares. Partition can be done either by dividing the property by metes and bounds or by the severance of the joint status or by both. Precisely, the partition takes place in actual sense only when the joint status of a Hindu Undivided Family comes to an end.

Reference

1. AIR 1958 SC 1042
2. Modern Hindu Law by Paras Diwan
3. https://www.legalbites.in/partition-hindu-law/

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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 right to life and personal liberty enshrined under Article 21 of the Indian Constitution and its various facets with landmark judgments.

“No person shall be deprived of his life or personal liberty except according to procedure established by law.”

– Article 21 of the Indian Constitution

Introduction

The Constitution of India provides six fundamental rights to the citizens of India. The Right to Life and Personal Liberty is one of the fundamental rights which enables a person to live his life freely without any interference. Although, this right was not interpreted to the fullest but with judicial developments the ambit of this right has amplified and still on the path of intensification. Right to life and personal liberty is not only a fundamental right but a right by virtue of being human which enable human beings to get through a life which is different from mere animal existence. Article 21 of the Indian Constitution provides protection to the right to life and personal liberty.

Life and Personal Liberty- Meaning and scope

The meaning and scope of ‘life and personal liberty’ can be analyzed in detail in two facets on the basis of the interpretation of the courts.

Prior to Maneka Gandhi’s Case

The words ‘personal liberty’ was first came up for contemplation in the case of A. K. Gopalan v. State of Madras[1].

Facts: The petitioner. A. K. Gopalan, a communist leader was detained under the Preventive Detention Act, 1950. He challenged the validity of this Act on the ground that it was violative of his right to freedom of movement guaranteed in Article 19(1)(d) which is the essence of personal liberty given under Article 21 of the Indian Constitution. He argued that ‘personal liberty’ includes freedom of movement also and hence, the Preventive Detention Act should also satisfy Article 19. He also contended that the word ‘law’ under Article 21 does not include the ‘state made laws’ but only meant jus naturale or the principle of natural justice.

Interpretation of the Court: The Supreme Court illuminated the meaning and scope of ‘personal liberty’ with a very literal and narrow view. The term ‘liberty’ has a very wide meaning but when it is qualified by the word ‘personal’, the spectrum of the concept of liberty diminishes therefore, it does not include all that which is implied in the term ‘liberty’.

The Supreme Court held that personal liberty includes nothing more than physical freedom of body i.e. freedom from arrest and detention from false imprisonment or wrongful confinement.

The SC also interpreted the word ‘law’ as ‘state made law’ and rejected the contention of the petitioner. Fazal Ali J., however, held a demurring view and gave a broad and comprehensive meaning to the words ‘personal liberty’ as consisting of freedom of movement.

Since Article 19 is a substantive right whereas and Article 21 is a procedural right therefore, they must be read together. Any law which deprives the life or personal liberty of any person must satisfy the requirements of both Article 19 and Article 21 as well.

However, this restrictive interpretation of ‘personal liberty’ in Gopanaln’s case has not been followed by the Supreme Court in its later judgments.

Case: Kharak Singh v. State of U. P.[2]

Facts: The petitioner had been charged in a dacoity case but no evidence was found against him therefore, he was released. Under the U.P. Police Regulations, the police opened a history-sheet for him and he was kept under police surveillance which included domiciliary visits at nights and verification of his activities and movement. He challenged this as being violative of his fundamental right under Article 21.

Judgment: The Supreme Court interpreted the word ‘life’ in this case. The word ‘life’ means something more than mere animal existence. ‘Personal liberty’ is not restricted to bodily restraint or confinement to prisons only, but was used in a concise sense including all varieties of rights which constitutes the personal liberty of a human being other than those mentioned under Article 19(1). Any type of unauthorised obstruction into a person’s home and disturbance caused to him is a violation of the personal liberty of the individual. The domiciliary visits of the policemen in the house of petitioner were an interruption on the petitioner’s personal liberty as there was no law which can justify this act. Therefore, the U.P. Police Regulation was violative of Article 21 and struck down as unconstitutional.

It is true that the word ‘liberty’ is qualified by the word ‘personal’ but such qualification is made in order to avoid any kind of overlapping between those incidents of liberty mentioned in Article 19 and Article 21. It can be deduced that Article 19(1) deals with a particular aspect of freedom while Article 21 comprises the residue.

A New Dimension – After Maneka Gandhi’s case

In Maneka Gandhi v. Union of India[3], the words ‘personal liberty’ was again considered by the Supreme Court. The SC has not only overruled the interpretation given in the Gopalan’s case but also widened the scope of Article 21.

Facts: The petitioner received a letter from a Regional Passport Officer, Delhi asking the petitioner to surrender her passport within 7 days of the receive of the letter. She immediately address letter to the officer and requested to issue the reason of such letter in writing. She received another letter from the Ministry of External Affairs, Government of India, stating that the reason cannot be furnished to her because of the interest of the general public. Her passport was impounded under Section 10(3) of the Passports Act, 1967, in the public interest.

The petitioner approached the Hon’ble Supreme Court under Article 32 of the Indian Constitution, claiming infringement of her fundamental right to personal liberty.

Judgment: The Supreme Court held that the Government was not justified in withholding the reasons for impounding the passport from the petitioner and perceived the following-

1. Right to go abroad is implicitly covered under Article 21.
2. The Passports Act, 1967, doesn’t prescribe the procedure for confiscation of passport.
3. Principle of Natural Justice was violated because the petitioner was never given a chance to be heard.

Hence, the Supreme Court overruled Gopalan’s case decision and widened the scope of the term ‘personal liberty’. Bhagwati J. observed that Article 21 covers a wide variety of rights which constitute personal liberty. The courts must seek to expatiate the ambit and purview of the provisions related to fundamental rights rather than impairing their meaning and scope. Any procedure which attenuate the rights of individual must satisfy the requirement of natural justice i.e. it must be just, fair and reasonable.

Interrelation of Article 14, 19 and Article 21

Old view: If we consider the old view given in the Gopalan’s case, we found that the Supreme Court held that Article 19 has no connection and applicability to Article 21. Article 19 lays down the six fundamental freedoms of the individual and the restrictions which can be imposed on them. On the other hand, Article 21 enables the State to deprive an individual of his right to life and personal liberty in accordance with the procedure established by the law. In Gopalan’s case, the majority was of the view that as long as any law of preventive detention satisfies the requirements of Article 22, there is no need to meet the requirements of Article 19.

Present view: In Maneka Gandhi’s case, the court overruled the view of majority given in Gopalan’s case and clearly stated that Article 21 is totally connected to Article 19 as it takes its content from Article 19 also. Article 21 does not exclude Article 19 and if any law deprives the right of life and personal liberty of an individual, such a law must stand the test of Article 21 along with the test of Article 19 and 14 as well.

Procedure established by law: The life and personal liberty of a person can be deprived only in accordance with the procedure established by law. Procedure established by law refers to the law which is duly enacted by the Legislation. The Executive has no authority to deprive a person from this right.

The drafters of Indian Constitution used the words ‘procedure established by law’ instead of ‘due process of law’ which is used in American Constitution.

In A. K. Gopalan v. State of Madras[4], the petitioner argued that the expression ‘procedure established by law’ was synonymous with the expression ‘due process by law’ of the American Constitution. It was contended that the same protection is given by the Indian Constitution as is given by the American Constitution with a difference that ‘due process’ clause covers both substantive and procedural law whereas the ‘procedure established by law’ provides protection of procedural law.

But the Supreme Court did not accepted this argument and held that both expressions did not mean the same. The ‘procedure established by law’ which is more specific, did not convey the same meaning in India as the clause ‘due process by law’ apprehended in America which is quite vague.

Natural Justice: In Gopalan’s case, it was contended by the petitioner that the word ‘law’ under Article 21 does not only include the enacted piece of law but also encompasses the principle of natural justice and any law which deprives a person of his life and personal liberty without obeying the principle of natural justice could not be held as valid under Article 21. The court rejected this contention and held that under Article 21, the word ‘law’ must include the law enacted by the Legislature and not any general law embodying the principle of natural justice as interpreted by the U.S. Supreme Court.

Mere prescription of any kind of procedure is not sufficient to meet the mandate of Article 21. The procedure prescribed by the law has to be fair, just and reasonable and not fanciful, arbitrary or oppressive. The principle of natural justice must be incorporated in every procedure established by law.

Various Facets of Article 21

There are two rights which are explicitly included under Article 21.

1. Right to life
2. Right to personal liberty

Besides these two rights, there are several other rights which come within the scope and meaning of Article 21. These rights are not expressly mentioned in Article 21 but impliedly embedded under it. Article 21 includes the following rights:

1. Right to live with human dignity
2. Right to livelihood
3. Right to shelter
4. Right to privacy
5. Right to health and medical assistance
6. Right to sleep
7. Right to die
8. Right to Education
9. Right to free legal aid
10. Right to speedy trials
11. Homosexuality, etc.

Some rights are discussed below with relevant case laws.

Right to live with human dignity

A new dimension was given to Article 21 after the Maneka Gandhi’s case. It has been held that the right to ‘live’ is not merely confined to physical existence but it includes within it ambit the ‘right to live with human dignity’.

The court expounded the same view in the case of Francis Coralie v. Union Territory of Delhi[5].

Facts: The validity of the provisions of the COFEPOSA (Conservation of Foreign Exchange Prevention of Smuggling Activities Act, 1994) were challenged which provided that a detenu can have an interview with the lawyer only after obtaining permission of the District Magistrate and that too, in the presence of Custom Officer and permitted to meet the family members once in a month. The challenge was made on the ground that these provisions are unreasonable, arbitrary and violative of Article 21.

Judgment: The Court said that right to live is not restricted to mere animal existence. It means something more than just physical survival. The right to live is not confined to the protection of limb or faculty through which life is enjoyed but it also include ‘right to live with human dignity’, and all that goes along with it, the basic necessities of life such as adequate nutrition, clothing, shelter and facilities for reading, writing and expressing ourselves in different forms, free movement and to commingle with the other human beings.

The Supreme Court further added that the detenu’s right to have an interview with his lawyer and family members is a part of his personal liberty subject to any valid reasonable prison regulations. The right of detenu to consult a legal advisor of his choice for any purpose is included in the ‘right to live with human dignity’ which is an integral part of personal liberty guaranteed under Article 21 of the Indian Constitution.

Case: People’s Union for Democratic Rights v. Union of India[6],

In this case it was held that the non-payment of minimum wages to the workers employed in various Asiad Projects in Delhi was a denial to them of their right to live with human dignity and violative of Article 21 of the Constitution.

Right to livelihood

In Olga Tellis v. Bombay Municipal Corporation[7], commonly known as the ‘pavement dwellers case’, the court ruled that the word ‘life’ in Article 21 includes the ‘right to livelihood’ also.

Facts: The petitioners challenged the validity of Sections 313, 313-A, 314 and 497 of the Bombay Municipal Corporation Act, 1888, which empowered the Municipal Authorities to remove the huts from pavements and public places which is violative of Article 21.

Held: The court agreed that ‘right to livelihood’ is included in Article 21. It was held that the above sections of the Bombay Municipal Corporation Act were constitutional as they impose reasonable restrictions on the right to livelihood of pavement and slum dwellers in the interest of the general public. Public places are not meant for carrying trade or business. However, the court took humanistic view and directed the Municipal Authority to remove them only after the end of the monsoon season and also directed to frame schemes for hawking and non-hawking zones and issue licences for selling good in hawking zone.

Right to sleep

According to the interpretation of the courts, ‘right to sleep’ is a fundamental right included in ‘right to life’ because to live a person must have access to good sleep.

Case: Ramlila Maidan v. Home Secretary, Union of India[8]

Facts: On the night of 4th June, 2011, the men and women of different age groups who gathered at Ramlila Maidan to participate in the Yoga Training Camp led by Baba Ram Dev were sleeping and prior permission to hold the camp had been taken from the competent authority. The permission to hold the camp was suddenly withdrawn with any information and Section 144 of Cr.P.C. was imposed. The police attempted to disperse the peacefully sleeping gathering by using tear gas and lathi charge at about 1:00 A.M. a number of people were injured resulting into the death of a woman.

Judgment: It was held that sleep is a biological necessity which contributes in optimal health, happiness and improves the quality of life. The deprivation of sleep reasults in mental and physical torture. Right to sleep has always been treated as a fundamental right like the right to breathe, eat, drink etc.

Any suspicious or conspiratory thing on the part of the assembly could have been investigated by the competent authority but sudden imposition of Section 144 Cr.P. C appears to have been done in unlawful and slanderous manner. Therefore, the basic human right of the crowd to have a sound sleep which is a constitutional freedom acknowledged under Article 21 of the Constitution was violated by this act of police.

Right to speedy trial

In the case of Hussainara Khatoon v. Home Secretary, State of Bihar[9], right to speedy trial was discussed by the court in detail.

Facts: A petition for a writ of habeas corpus was filed by number of undertrial prisoners who were in the jail of Bihar for years awaiting their trial.

Judgment: The Supreme Court held that unlike the American Constitution,‘right to speedy trial’ is not specifically listed as a fundamental right under Indian Constitution but, it is implicit in the broad ambit of Article 21 of the Indian Constitution as interpreted in Maneka Gandhi’s case. Speedy trial is the essence of criminal justice. No procedure which does not ensure a reasonably quick trial can be considered as ‘reasonable,fair or just’. For this reason the court ordered the Bihar Government to take necessary steps and start the trials of the prisoners as soon as possible. Right to speedy trial is available to accused at all stages including investigation, inquiry, trial, appeal etc. In order to deliver justice, it is important that trials must be speedy and after all justice delayed is justice denied.

Prisoner’s Right and Article 21

The protection of Article 21 is also available to convicts in jail. The convicts are not deprived of their fundamental rights which they possess otherwise merely because of their conviction. By conviction, a prisoner may be deprived of the fundamental freedoms like the right to move freely throughout the territory of India or right to practise any practise any profession but he is entitled to the precious right guaranteed under article 21 and cannot be deprived of his life and personal liberty except according to the procedure established by law. The prisoners are not completely denuded of all their fundamental rights but the enforceability of all Fundamental Rights is restricted upon the fact of imprisonment.

Case: D.B.M. Patnaik v. State of A.P. [10]

Facts: The petitioners were the naxalites under-trial prisoners who were undergoing the sentence in the Central Jail, Visakhapatnam. They contended that the armed police guards posted around the jail and the live-wire electrical mechanism fixed on the top of the jail was an infringement of their right to life and personal liberty guaranteed under Article 21 of the Constitution.

Judgment: The court held that in 146 naxalites were lodged in jail as a result of which usual watch and ward arrangements proved inadequate. Some prisoners had escaped from the prison. It was decided thereafter to take necessary steps to prevent the escape of the prisoners from the jail. The court further added that no convict has a right to dictate where guards are to be posted and where not to prevent the escape of prisoners. The installation of live-wire mechanism does not violate the rights of the prisoners. It is a preventive measure intended to act as a deterrent and cause death only if a prisoner scales the wall while attempting to escape from lawful custody. The installation of live-wire does not by itself cause the death of the prisoners. Therefore, the court held that in the present case the convicts were not deprived of their fundamental rights by posting of police guards and installation of live-wire outside the jail.

Right to Privacy

The right to privacy in India has been developed through a series of decisions. Earlier, this right was not considered as a fundamental right in the Indian Constitution. The first time this topic was ever raised in the case of Kharak Singh v. State of U.P.[11]. It was held by minority judges that right to privacy is a part of right to life and personal liberty.

Further, in the case of Govind v. State of M.P.[12], the Supreme Court confirmed that right to privacy is a fundamental right but not an absolute right.

Case: R. Rajagopal v. state of Tamil Nadu [13]

Facts: This case is famously known as ‘Auto Shankar case’. In this case, Auto Shankar wrote his autobiography in jail depicting how prisoners and IAS, IPS are in relation with each other and partners in crime. He gave his autobiography to his wife to get it published. Government officials interfered in its publication with a fear to get exposed if it gets published. So, the editors of the magazine filed a writ petition in the Supreme Court saying that it violated Article 21.

Judgment: The court held that right to privacy or right to be let alone is guaranteed under Article 21 of the Constitution. Everyone has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, etc. None can publish anything concerning the above matters without his consent, whether truthful or fictitious. If any person does so, he would be violating the right of the person concerned and would be liable for the damages.

This rule is subject to an exception that if any publication of such matters are based on public record including court record, it will be unobjectionable. If a matter becomes a matter of public record the right to privacy no longer exists and it becomes a legitimate subject for comment of press and media.

The second exception is that the right to privacy or the remedy of action for damage is unavailable to public officials as long as the criticism regarding the discharge of their public duties is concerned, not even when the publication is based on false facts. Therefore, the court held that the State and its officials has no authority in law to impose prior restraint on publication of defamatory matter. Officials can take action only after publication if it is found to be untrue.

There are many aspects of Right to Privacy as well.

• Privacy and Virginity test

Case: Surjit Singh Thind v. Kanwaljit Kaur[14]

Facts: In this case the wife filed a petition for a decree of nullity of marriage on the ground that the marriage had never been consummated because the husband was impotent. The husband took the defence that the marriage was consummated and he was not impotent. So to prove that the wife was not a virgin, he filed an application for the virginity test of his wife.

Judgment: The court held that allowing the medical examination of a woman’s virginity violates her right to privacy under Article 21 of the Constitution.

• Privacy and Patient’s Information

Case: Mr. ‘X’ v. Hospital ‘Z’ [15]

Facts: In this case, during a treatment of some disease, the patient needed blood. The appellant was asked by the doctors to donate blood for the patient. When his blood samples were taken the doctors found that the appellant’s blood group was HIV(+). Meanwhile, the appellant settled his marriage with a girl which was to be held in a few days. But the marriage was called off on the ground that the blood test of the appellant conducted by the respondent hospital was found to be HIV(+). As a result of this, he contended that his prestige among his family members was damaged. The appellant filed a writ petition in the High Court of Bombay for the damages against the respondent on the ground that the information which was required to be kept confidential under Medical Ethics was disclosed illegally and the respondent is liable to pay damages for it. He contended that his right to privacy had been infringed by the respondents by disclosing that the appellant was HIV(+).

Judgment: The Supreme Court held that disclosing that the appellant was suffering from AIDS by the doctors in not violative of right to privacy of the appellant guaranteed under Article 21. Although, right to privacy is a fundamental right under Article 21, but it is not an absolute right and certain restrictions can be imposed on it. Right to marry is an essential element of the right to privacy but not in absolute sense. Marriage is recognized as a sacred union, legally permissible, of two healthy bodies of opposite sexes. Every system of matrimonial law provides that if a person is suffering from venereal disease in a communicable form, it will be open to the other partner in the marriage to seek divorce. Also, if a person is suffering from such kind of disease even prior to the marriage, he has no right to marry unless the disease is completely cured.

Therefore, when the patient was found to be HIV(+), the disclosure of this fact by the doctors was not violative of patient’s right to privacy as the lady to whom the patient was likely to be married was saved by such disclosure or else she too would have been infected with the dreadful disease if marriage had taken place.

• Privacy and Telephone Tapping

Case: People’s Union of Civil Liberties v. Union of India [16]

Facts: A petition was filed by a public interest litigation under Article 32 of the Constitution by the People’s Union of Civil Liberties, a voluntary organisation, highlighting the incidents of telephone tapping in the recent years. The petitioners challenged the constitutional validity of Section 5 of the Indian Telegraph Act, 1885 which authorises the Centre or the State Government to resort to phone tapping in the circumstances mentioned therein.

Judgment: The Supreme Court held that telephone tapping is a serious breach of an individual’s right to privacy which is an integral part of right to life and personal liberty enshrined under Article 21. State is not allowed to intervene in the individual’s right unless there is a matter of public emergency or interest of public safety.

• Right to Privacy and Aadhar card

Case: Justice K.S. Puttaswamy v. Union of India[17]

Facts: This case was brought before the Hon’ble Supreme Court by a retired judge Justice K.S. Puttaswamy challenging the Aadhar scheme of the Government to be violative of Article 21.

The Government introduced the Aadhar scheme which includes the biometric of an individual and proposed to make it mandatory in order to access the government policies and benefits. The petitioner challenged this scheme on the ground that it violates the right to privacy of individual which is an intrinsic right within the ambit of Article 21. Also, India does not have strict data protection laws. So, the misuse of personal data of the individuals may happen which is an infringement of their right to life and personal liberty.

The Attorney General of India, on the behalf of the government, argued that right to privacy is not expressly specified as a fundamental right under the Constitution. Referring the case of M.P. Sharma v. Satish Chandra[18] and Kharak Singh v. State of U.P.[19], the respondent contended that the Constitution does not specifically provide protection to right to privacy. Although right to privacy may be incorporated under the right to life and personal liberty but with certain limits. It is not an absolute fundamental right.

Judgment: The Court gave a landmark judgment in this case by recognizing the right to privacy as an intrinsic part of the right to life and personal liberty. It was observed that right to privacy is not an absolute right as it is has certain limits as provided by the law. The law must provide strict data protection and regulate national security. Therefore, it was held that the scheme of Aadhar card is no more mandatory.

Homosexuality

The LGBT community is recognized as an important part of the society today. Ignoring the rights and demands of this community will not let the country progress rapidly. The development of the country is the development of its people. Each and every community has the right to live their life to the fullest. Any provision which interrupts their personal liberty is ultra vires Article 14,15, and 21. Section 377, the Indian Penal Code, 1860, in this regard was a very controversial provision which has gone through a lot of debate and finally got decriminalised in 2018 in the case of Navtej Singh Johar v. Union of India[20].

Prior to this case, there were many other cases that came before the court for decriminalization of Section 377, IPC.

Case: Naz Foundation v. Govt. of N.C.T. of Delhi[21]

Facts: This case challenged the constitutionality of Section 377, IPC, on the ground that it is violative of Article 21, 14 and 15 of the Indian Constitution.

Judgement: The Delhi High Court held that as far as criminalization of consensual sexual acts in private between adults who have attained the age of 18 years, Section 377, IPC, is violative of Article 14, 15 and 21. However, the provision of Section-377, IPC will continue to govern the non-consensual sexual activities involving the minors as the provision describes. It was further added by the Court that Section 377 denies a person’s dignity and criminalises the core identity of individuals solely on the account of his sexuality and is therefore, violative of Article 21.

But this decision of the Delhi High Court was reversed by the Supreme Court in the following case.

Case: Suresh Kumar Koushal v. Naz Foundation[22]

Facts: The constitutionality of Section 377 was questioned through a Special Leave Petition before the Hon’ble Supreme Court of India.

Judgment: The Supreme Court reversed the ruling of the Delhi High Court in the Naz Foundation Case and held that Section 377 does not suffer from unconstitutionality. The people who indulge in sexual intercourse in the ordinary course and the people who indulge in sexual intercourse against the order of nature constitutes different classes and the people falling in the different category cannot claim that Section 377 suffers from vice of arbitrariness and irrational classification.

Ultimately, after going through a lot of controversial debates and decisions of the different courts, Section 377 was decriminalised.

Case: Navtej Singh Johar v. Union of India[23]

Facts: In this case, the Court was asked to determine the constitutionality of Section 377 of the Indian Penal Code, which among other things, criminalises homosexual acts as an ‘unnatural offence’.

Judgment: The Supreme Court of India unanimously delivered the verdict stating the part of Section 377 dealing with consensual sexual acts between adults is unconstitutional. The court observed that criminalizing the consensual sexual acts between the adults is violative of right to equality enshrined under Article 14 of the Constitution. The LGBT community in India is entitled to all the constitutional rights and liberties which protected by the Indian Constitution. The court pronounced that criminalising carnal intercourse is arbitrary, irrational and unconstitutional.

Right to Education [Article 21A]

It is a well known fact that for the development of a democratic system of government, education plays avery crucial role. Education provides dignity to a person with the help of which he can contribute in the progress of the country. The Constitution (86th Amendment) Act, 2002, added a new Article 21A which ensures free and compulsory education for all the children of the age of 6 to 14 years.

Therefore, the framers of the Constitution, releasing the significance of education in a democratic country, imposed a duty on the State under Article 45 as one of the directive policies of state to provide free and compulsory education to all children until they complete the age of 14 years. The purpose of this provision was to abolish illiteracy from the country.

Case: Unni Krishnan v. State of U.P. [24]

In this case, the court specifically declares that the right to education for the children of the age of 6 to 14 years is a fundamental right. Article 21A makes it mandatory for the Government to enact a Central Legislation to give effect to the constitutional amendment. The Parliament to give effect to 86th Amendment, passes the Right of Children to Compulsory Education Act, 2009. This act provides responsibilities on the Centre and the State Government, teachers, parents and community members to ensure that all children of 6 to 14 years receive free and compulsory elementary education.

Emergency and Article 21

Before the 44th Amendment, the Constitution allowed the suspension of the rights under Article 21. Article 359 empowered the President to suspend the right to move to the court for the violation of rights conferred by Article 21 through an order.

During the emergency arising out of the Chinese attack in 1962, Article 21 was suspended for the first time. After that in 1971, it was suspended for the second time when Pakistan attacked India. In 1976, during the tenure of Prime Minister Indira gandhi, this right was again suspended when emergency was declared on the ground of internal disturbances.

In the case of ADM Jabalpur v. S.S. Shukla[25], popularly known as the ‘habeas corpus case’, it was held that-

“Article 21 is the only depot of the right to life and personal liberty in the Indian Constitution and if the right to move to any court for the enforcement of this right was suspended by the orders of the President under Article 359, the detenu had no locus standi to file a writ petition against wrongful detention.”

The 44th Amendment has amended Article 359 which now provides that the President by order cannot suspend the enforcement of right to life and personal liberty under Article 21. This amendment was done to prevent the situations in future which arose in the habeas corpus case.

Conclusion

It can be concluded that right to life and personal liberty is an inalienable right which is not only guaranteed by the Indian Constitution but also exists by virtue of being human. It makes a distinction between the life of a human being with that of an animal. The ambit of article 21 is still not defined absolutely. The courts are trying to expand the scope and application of Article 21 by scrutinizing its each and every aspect so that no right of the citizens could be encroached.

References

1. 1. AIR 1950 SC 27
2. AIR 1963 SC 1295
3.  AIR 1978 SC 597
4.  AIR 1950 SC 27
5.  AIR 1981 SC 746
6.  AIR 1982 SC 1473
7.  AIR 1986 SC 180
8.  2012 CrLJ 3516 (SC)
9.  AIR 1979 SC 1369
10.  AIR 1974 SC 2092
11.  AIR 1963 SC 1295
12.  1975 SCR (3) 946
13.  1994 (6) SCC 632
14.  AIR 2003 P&H 353
15.  AIR 1995 SC 495
16.  AIR 1997 SC 568
17.  AIR 2015 SC 3081
18.  AIR 1954 SC 300
19.  AIR 1963 SC 1295
20.  W. P. (Crl.) No. 76 /2016
21.  2010 CrLJ 94 Delhi (DB)
22.  AIR 2014 SC 563
23.  W. P. (Crl.) No. 76 /2016
24.  1993 (1) SCC 645
25. AIR 1976 SC 1207

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This article has been written by Diva Rai, 1st year student, Symbiosis Law School, Noida. In this article she discusses the rule of evidence in criminal and civil proceedings, definitions, history of evidence law, conditions and classification and burden of proof.

Definition of Evidence

In legal terms, the burden of proof, admissibility, relevance, weight, and adequacy of what ought to be recorded in a legal proceeding is covered by the evidence. Evidence is significant and crucial in civil and criminal proceedings and it may incorporate samples of blood or hair, video surveillance recordings, or testimony from witnesses.

History of Evidence Law

Evidence rules have been developed over several centuries and are based on rules from the Anglo-American common law that was brought to the New World by early settlers. The purpose of it is to be fair to both parties and, in fact, to refuse without a basis to raise allegations. They are sometimes criticized as a legal technicity, but they are an important part of the system to achieve a just result.

Perhaps the most important rules on evidence is that testimony to hearsay is generally inadmissible (although many exceptions to this rule are present). In England and Wales, section 1 of the 1995 Civil Evidence Act specifically allows “hearsay” evidence to be admitted, legislation also allows “hearsay” evidence to be used in criminal proceedings, allowing the accuser to induce friends or family to provide false evidence in support of their accusations as would normally be rejected by the presiding authority or judge. There are several examples where the rules of evidence do not bind presiding authorities. These include the U.S. military tribunals and tribunals used to try health professionals in Australia.

Types of Evidence

There are four general types of evidence:

• Real evidence (tangible things, like a weapon)
• Documentary (a letter, blog post, or another document)
• Demonstrative (a model of what probably happened at a given time and place)
• Testimonial (witness testimony)

Important Terms

1. Circumstantial Evidence: proof that tends to prove a factual matter with the aid of proving other events or circumstances from that can reasonably be inferred from the occurrence of the matter.
2. Corroborating Evidence: evidence that is independent and different from, but supplements and strengthens the evidence that has already been presented as evidence of the fact.
3. Hearsay: a statement or assertion made by a court and not by an oath that is offered as proof that what is stated is true (usually considered inadmissible).
4. Exclusionary Rule: a rule of evidence excluding or suppressing evidence obtained in violation of constitutional rights of a defendant.

Conditions for Receiving Evidence

Something will be accepted as evidence by the court if it is admissible as evidence in legal proceedings to use the term of Montrose, only when the following three basic conditions are met:

• Relevance
• Materiality
• Admissibility

1- Relevance

Legal Significance of Relevance

The concept of relevance plays a key role in finding legal facts. The two basic principles of evidence law are:

• Without exception, the court may receive anything that is not relevant as evidence.
• Whatever is relevant is admissible as evidence by the court, subject to many exceptions and qualifications.

Conceptions of Logical Relevance

In legal proceedings, evidence may be adduced to prove a fact only if the fact is relevant. Relevance is a concept of relationships. No fact in itself is relevant; it is only relevant in relation to a different fact.

Evidence is relevant if the probability ratio is different from 1:1. However, evidence may also be relevant for other reasons, such as providing for a richer narrative or helping the court understand other evidence. For these reasons, witnesses are routinely permitted to give their names, and at the trial, parties may present charts, diagrams, and floor plans.

Logical Relevance versus Legal Relevance

Logical relevance is commonly referred to as the concept of relevance under consideration. This is a bit of a misnomer: “Relevance is not a matter of logic, but it depends on factual issues.” A key target of utilizing the logical adjective is to flag non-legal character relevance. Relevance is said to be a consistent and non-legal concept in the sense that in answering a question of relevance and applying the definition of relevance, the judge must depend on extra-legal resources and is not bound by legal precedents.

In the judgment of Cushing C.J. in State v LaPage [1] it was remarked:

“There are many instances in which the evidence of particular facts as bearing on particular issues has been so often the subject of discussion in courts of law, and so often ruled upon, that the united logic of a great many judges and lawyers may be said to furnish…the best evidence of what may be properly called common-sense, and thus to acquire the authority of law.”

2- Materiality and Facts-in-issue

That fact A is relevant to fact B is not enough to prove fact A in court. Furthermore, B must be a fact of “material.” The materiality of facts is determined in a particular case by the law applicable to that case. It depends on the law defining the offense charged against the accused in a criminal prosecution and the law setting out the elements of the legal claim brought against the accused in a civil trial.

The law does not permit the adduction of evidence to prove facts that are immaterial or are not in question. In the broader sense that encompasses the concepts under discussion, relevance is often used. Evidence is sometimes described as irrelevant, not because there is no logical inference that can be drawn to the proposal being sought to prove, but because it is not material or uncontroversial.

3- Admissibility

Admissibility and Relevance

Another condition for receiving evidence in legal proceedings must be met. Legal rules prohibit the presentation of evidence in a trial even though it is relevant to a factual proposition of material and subject-matter. These rules render inadmissible the evidence they apply to and require that the judge exclude it.

Examples- Rule against hearsay evidence, the rule against character evidence.

There is no clear distinction between admissibility and receivability. It is common to describe as inadmissible irrelevant evidence or evidence of an immaterial fact. What this means is that if it is meaningless or immaterial, the tribunal will refuse to obtain proof. But, importantly, for reasons other than irrelevance and immateriality, the court also excludes evidence. It is also necessary to keep apart the concepts of admissibility and materiality. This is because admissibility or exclusionary rules serve purposes and rationales other than the law defining the crime or civil claim before the court, and it is this law that determines the materiality of the facts in the dispute.

Admissibility or Exclusionary Rules

Admissibility or exclusionary rules are products of a jury system in which untrained citizens sit as factual judges in evaluating evidence. These rules came about as it was deemed necessary to keep away certain types of evidence from inexperienced jurors that could mislead or be misled by them.

Example- Evidence to which judges are likely to give too much weight or which puts their minds at risk of creating unfair prejudice. Even if the theory is correct, it does not necessarily follow that, once the jury system is removed, exclusionary rules should be abolished.

The procedural reality is that judges will have to be presented to the evidence to decide their admissibility. Since a judge can not be expected to relied upon to reasonably expel the evidence from his mind once he has chosen to exclude it, there seems a little point in excluding the evidence; we could also enable the evidence and the judge to give the evidence the probative value it deserves.

Classification of Evidence

Evidence may lead to the required conclusion, directly or indirectly, as to whether or not there is a disputed fact. Evidence is therefore divided into two parts: direct and circumstantial. Witnesses give oral testimony of something they perceived with their own senses provide direct evidence. It is also provided by the presentation of documents, photographs and the like that the judge is required to interpret with his senses and includes the physical presence of the witness in the witness box that gives rise to an evaluation of the credibility of the witness by the judge. In this case, it may include any incriminating admissions by a party.

Circumstantial evidence, however, is indirect evidence that tends to infer a conclusion. It does not tell or prove directly that the alleged or disputed fact exists or does not exist. But they form a chain that leads to a logical conclusion when putting together. Criminal cases based entirely on circumstantial evidence are therefore the hardest to prove beyond reasonable doubt the required standard of proof.

Circumstantial evidence requires the judge to draw generalizations from commonly held human nature assumptions. For example, in a murder case, evidence that a defendant lied to the police about his time and had a violent argument with the victim a few days before the killing would be relevant circumstantial evidence of the guilt of the accused. The inference is based on the common assumption that murderers are usually motivated to commit murder and are usually lying to cover their tracks.

Burden of Proof in criminal and civil proceedings

In criminal cases, the general rule is that the prosecution bears the burden of proving the guilt of the defendant and the substantive law defines what the prosecution has to prove to convict the defendant. This will usually include elements of the mens rea and actus real, for example, the prosecution must prove all the elements of the offense set out in the Criminal Code when pursuing a conviction for theft.

While the rules of civil proof do not incorporate the same principles enshrined in criminal proceedings (i.e., the accused in criminal proceedings is presumed innocent until proven guilty by the prosecution), the well-established general rule on the incidence of the legal burden of proof in civil proceedings is that” he who claims must prove.” The legal burden of proving a fact in a civil trial is, to put it simply, on the party that claims that fact. Hence, in civil cases, the plaintiff’s first burden of proof lies. This burden of proof, however, will shift to the defendant if the defendant denies the allegations and finds a positive default such as “counterclaim.” The burden of proof in such a case lies with the defendant.

Judicial Admissions not conclusive in Criminal Cases

The issue may be life and death in criminal cases. So the court will take due care not to be convicted and punished by an innocent person. So it is expected that the courts will critically examine the reasons behind the confession. Because sometimes innocent people may admit the commission of the crime to cover up another person, for fame, or by his criminal act to be known throughout the world.

Admission shall be made without reservation in criminal cases. When we say the accused admitted, we say he admitted that every and every criminal element of the alleged offense usually includes mens rea and actus reus elements. However, the party may admit the truth of the whole or any part of the other party’s case in civil proceedings.

Illustration: The plaintiff lodged a lawsuit against the defendant for breach of the amount of 10,000 contracts. Here, half of the complainant may be admitted by the defendant and the rest may be denied. In such a case, the issue (the point of disagreement) rests solely on the complainant’s unadmitted claims, and the court shall give judgments on the admitted amount.

Wrong inference be made from circumstances

Since most crimes are carried out in a very sophisticated manner, direct evidence is difficult to obtain. The option we have in such a case is, by circumstantial evidence, to prove the contested fact. However, there is a possibility that such circumstances may form false inferences. For example, if you look at the footsteps alone in a murder case, it can be anybody’s footsteps from the victim’s house. And it also doesn’t mean that anyone buying a piston or knife wants to kill a person.

Circumstances should, therefore, be considered cumulatively and not in isolation from one another. They lead to a certain logical conclusion where the facts are put together. There should be no self-contradictory circumstances that are consistent with the accused’s innocence and others consistent with his guilt. If they contradict, their ability to prove diminishes as the contradiction increases. Therefore, the court must be careful when giving a ruling based on circumstantial evidence.

References

[1] 1876 57 N.H. 245 at 288

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This article has been written by Aparajita Balaji, a student of Vivekananda Institute of Professional Studies, affiliated to Guru Gobind Singh Indraprastha University, Delhi. In this article, she has discussed the concept related to the joinder of charges, the basic rule governing the framing of charges as well as the various exceptions to the said rule. The powers of Courts related to the joinder of charges have also been discussed. 

The basic idea behind the framing of charges before a trial is initiated is that the accused should be informed in a clear, concise and precise manner the allegations which have been raised against him by the victim in front of the court. It is imperative for the accused to know what the court intends to charge him with, which the prosecution requires to prove. 

What is a Charge?

The charge is defined under Section 2(b) of the Code Of Criminal Procedure, 1973. According to which, “charges means the head of the charge when there are more than one charges”. To put it in a more straightforward language, after the trial is initiated, the accused person is informed about the allegations which have been raised against him and the provisions of the Code under which he would be tried by the Court. The accusations put up against the accused are thus known as ‘Charges’ in the legal language.

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Joinder of Charges 

In the case of K. Satwant Singh v. State Of Punjab AIR 1960 SC 266, that the sections of joinder of charges are not compelling in nature. They only permit the joint trial of charges under certain circumstances, and the courts may consider the same in the interest of the administration of justice after thoroughly studying the facts and circumstances of each case. 

Essential provision related to framing of Charges

• The general principle regarding charges as purported by Section 218 of the Code Of Criminal Procedure, 1973 is that every offence of which a particular has been accused shall come under a separate charge and each such charge shall be tried separately and distinctly. This means that each offence has to be treated as a separate entity and should be tried distinctively. 
• But, Section 218(2) carves out exceptions to Section 218(1). The provisions of Section 219, 220, 221 and Section 223, override the provisions as mentioned under Section 218 of the Code Of Criminal Procedure. This means that Section 219- 223 talks about the Joinder Of Charges. 

The exceptions to Section 218 

Exception 1 

Three offences which are of the same kind, committed within a year may be charged together: This section has been provided to avoid multiplicity of the proceedings when the offences are of the same kind. It contains two circumstances: 

1. According to Section 219(1), if a person has been accused of three offences of the same kind then the person can be tried for all the offences together if they have been committed within a span of twelve months from the first to the last offence. 
2. Section 219(2) talks about the offences which are of the same kind, also punishable with the same quantum of punishment. 

Exception 2 

Offences which are committed in the course of the same transaction and tried together. It consists of the following: 

1. If a person has committed a series of acts, which are so intrinsically connected together that they form a single transaction, such series of offences shall be charged and tried together. The word ‘transaction’ has not been defined under the Code
2. In case of offences of Criminal breach of trust or dishonest misappropriation of property and their companion offences of falsification of accounts. Many a time, the offences of criminal breach of trust or dishonest misappropriation of property are committed along with the offence such as falsification of accounts etc., the latter offence committed in order to fulfil the objective of the former offence. In such cases, Section 220(2) enables the Courts to try such offences together. 
3. If a single act falls under within different and separate definitions of offences, such different offences shall be tried together as mentioned under Section 220(3).  For e.g.: If a person X, wrongfully strikes a person Y with a cane, then X can either be charged with and tried separately of offences under Sections 352 and Sections 323 of the Indian Penal Code or may be tried and convicted together. 
4.  If the acts which form an offence, also constitute different offences when separately taken and tried or taken in groups, such offences shall be tried to be one in a single trial.  For e.g.: If A commits the offence of robbery on B, and while doing so he voluntarily causes hurt to B, then A may be separately charged with, and convicted of the offences mentioned under Sections 323, 392 and 394 of the Indian Penal Code. 

Exception 3 

Section 221 provides for the cases wherein there is some doubt related to the circumstances and incidents which took place during the commission of the offence. According to this section, if the accused has committed a series of acts which lead to confusion regarding the facts should be proved, the accused might be charged with any or all of such offences or charged for alternative offences. In such cases, the accused is charged for one offence and during the stage of evidence, if it is proved that he has committed a different offence, he may be convicted for the same even though he was not charged with the same. 

Exception 4 

Section 223 talks about the class of persons who can be tried jointly. This section permits a joint trial of several persons under the specified circumstances as there exists some nexus among the various offences committed. The various classes shall not be treated as mutually exclusive and could be combined together if necessary. According to this section, the following classes of persons may be tried and charged together: 

1. The accused persons who have committed the same offence in the course of the same transaction.
2. The persons who have committed a particular offence and those who have abetted the commission. 
3. The persons who are covered under the ambit of Section 219.
4. The persons who in the same course of the transaction have committed different offences.
5. The persons who have committed offences such as theft, extortion, cheating, or criminal misappropriation of the property along with the persons who have received, retained, assisted in the disposal or concealment of property, possession of which is illegal and has been alleged to be illegal. 
6. The persons who have been accused of commission of offences under Section 411 and section 414 of the Indian Penal Code or under those sections in respect of stolen property, possession of which has already been transferred by another offence.
7. The persons who have been accused of any offence under Chapter XII of the Indian Penal Code related to the counterfeit coins.

The accused persons whose cases have not been covered under any of the classes of Section 223, cannot himself claim a joint trial. The proviso to this Section puts a check on the discretionary power of the court. 

The rules contained from Section 218 to Section 223 have been made for the benefit of the accused. It is not required to treat the various classes of sections as mutually exclusive. The Courts have been given the authority to combine the provisions of more than two clauses. The joint trial of several persons partly by applying one clause and by partly applying another clause has also been authorised. 

Power of court to order separate trial in cases wherein joinder of charges or of offenders is permissible

• The general rule in case of charges is that there shall be a separate charge for every distinct offence, which shall be tried separately. But, Sections 219, 220, 221 and Section 223 carve out the exceptions to this basic rule. In simpler words, a separate trial is a rule while a joint trial is its exception. 
• The provisions regarding the exceptions have only enabling nature, and it is at the discretion of the Courts whether or not to apply them to a particular case. In the case of Ranchhod Lal v. State of Madhya Pradesh AIR 1965 SC 1248, it was held that it is at the discretion of the court whether to apply Section 219, Section 220 and section 223 of the Code Of Criminal Procedure, 1973 or resort to Section 218. The accused has not been given this right to resort to joinder of charges. 
• The question regarding the misjoinder of charges and joint trial for distinct offences was answered by the Supreme Court in the case of Union Of India v. Ajeet Singh (2013) 4 SCC 186. It was held by the court that the principles underlying the provisions in the Code of Criminal Procedure, 1973 only act as a guiding principle. 

Conviction of an offence not charged when such offence is included in the offence charged 

According to Section 222, if the accused is charged with an offence consisting of several particulars, some of which if combined and proved to form a minor offence, then he may be convicted of such minor offence. Although the meaning of the term ‘minor offence’ is not defined under the code, it means an offence which has lesser punishment than the other offence of which the accused has been charged. 

Applicability of provisions related to joinder of charges in cases where no charge has been formally made 

It is not necessary in the summons cases to frame a formal charge. Mere stating to the accused the particulars of the offences which he has been charged with would suffice. In such cases, the question related to the applicability of provisions of joinder of charges arises. Such a question has not been expressly dealt with by the Code Of Criminal Procedure, 1973. 

But, it has been established via a number of precedents like in the case of  Upendra Nath Biswas v. Emperor ILR (1913) 41 CaL 694, Indramani v. Chanda Bewa 1956 Cri LJ 1218 that the provisions of joinder of cases are equally applicable to the summons case also. 

Withdrawal of remaining charges on conviction on one of several charges 

Section 224 of the Code Of Criminal Procedure, 1973 talks about the withdrawal of remaining charges. It is applicable only in cases where the accused has been convicted of one of several distinct charges before the other charges have been tried. 

Conclusion 

The framing of charge is the most basic step of the process of initiation of a trial in a criminal proceeding. Utmost care must be taken while the charges are being framed as wrong framing may lead to denial of justice. Therefore, one should abstain from wrongful framing and joinder of charges as such an inefficiency would vitiate the very basic essence of a fair trial. 

While framing the charges, the judge needs to take care of the fact that there is an existence of a case prima facie and should give his reasons for discharging the case in writing. 

The sections which deal with different types of trials only mention that only the duty of framing of charges has been vested upon the courts. The court may alter/ add to any charge at any time before the judgment is pronounced. Moreover, the provisions dealing with the joinder of charges are not strictly applicable to the judges. There is an existence of discretion upon the judges to either combine the charges or try each charge separately depending upon the facts and circumstances of each case. 

References 

• https://lawtimesjournal.in/charge/
• http://www.mondaq.com/india/x/257582/Crime/Framing+Of+Charges+An+Overview
• http://www.shareyouressays.com/knowledge/section-218-of-code-of-criminal-procedure-1973-cr-p-c-explained/115020
• http://www.legalservicesindia.com/article/1122/Framing-of-Charge-In-Criminal-Cases.html
• https://www.enotes.com/homework-help/what-joinder-charges-177581
• R.V. Kelkar’s Criminal Procedure, published by Eastern Book Company, Sixth Edition Reprinted 2015
• The Code Of Criminal Procedure, 1973

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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 various provisions of the Indian Evidence Act related to the concept of Presumption by Indian Judicial System.

Introduction

Presumption generally means a process of ascertaining few facts on the basis of possibility or it is the consequence of some acts in general which strengthen the possibility and when such possibility has great substantiate value then generally facts can be ascertained. A presumption in law means inferences which are concluded by the court with respect to the existence of certain facts. The inferences can either be affirmative or negative drawn from circumstance by using a process of best probable reasoning of such circumstances. The basic rule of presumption is when one fact of the case or circumstances are considered as primary facts and if they are proving the other facts related to it, then the facts can be presumed as if they are proved until disproved. Section 114 of Indian Evidence Act specifically deals with the concept that ‘the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of (a) natural events, (b) human conduct, and (c) public and private business, in their relation to the facts of the particular case’. 

Difference between Presumption of Facts and Presumption of Law

Difference between May Presume Shall Presume and Conclusive proof

May presume is a condition when the court enjoys its discretion power to presume any/ certain/ few facts and recognize it either proved or may ask for corroborative evidence to confirm or reconfirm the presumption set by the court in its discretion. Section 4 of the Indian Evidence Act provides that a fact or a group of facts may be regarded as proved, until and unless they are disapproved. The concept is defined under Section 4 of this act that ‘May Presume’ deals with rebuttable presumption and is not a branch of jurisprudence.

Whereas, shall presume denotes a strong assertion or intention to determine any fact.Section 4 of Indian evidence Act explains the principle of ‘Shall Presume’ that the court does not have any discretionary power in the course of presumption of ‘Shall Presume’, rather the court has presumed facts or groups of facts and regard them as if they are proved until they are disproved by the other party. Section 4 of the Indian Evidence Act explains that the concept of ‘Shall Presume’ may also be called ‘Presumption of Law’ or ‘Artificial Presumption’ or ‘Obligatory Presumption’ or ‘Rebuttable Presumption of Law’ and tells that it is a branch of jurisprudence.

While, Conclusive Presumptions/ Proofs, this can be considered as one of the strongest presumptions a court may assume but at the same time the presumptions are not completely based on logic rather court believes that such presumptions are for the welfare or upbringing of the society. With regards to Conclusive proofs, the law has absolute power and shall not allow any proofs contrary to the presumption which means if the facts presumed under conclusive proofs cannot be challenged even if the presumption is challenged on the basis of probative evidence. This is the strongest kind of all the existing presumptions whereas Section 41, 112 and 113 of the Evidence Act and S. 82 of the Indian Penal Code are one of the most important provisions related to the irrebuttable form of presumptions or Conclusive Presumption.

The general definition of Conclusive Proof is a condition when one fact is established, then the other facts or conditions become conclusive proof of another as declared by this Act. The Court in its consideration shall regard all other facts to be proved, only if one fact of the case is proven without any reasonable doubt. And if the other facts are proved on the basis of proving of one fact that the court shall not allow any evidence contrary to other facts which are presumed as conclusive proofs.

Illustration- A and B married on June 1 and the husband left home to his work for 6 months later he discovered that her wife is pregnant he divorced the wife and challenges that he is not liable for paying damages either to his wife or to his illegitimate son. And also explains that he never consumed his marriage as just after one day of marriage he left his home for his work. But in this case, the court will conclusively presumed that the son born out of his wife is legitimate because he was with his wife for at least 1 day and shall not allow any proof contrary to the conclusive proof even if he provides probative evidence. 

General Classification of Presumption

The traditional approach of common law system has classified presumption only under two categories that are a presumption of law and presumption of facts but to avoid any ambiguity in deciding any case the Indian legal system has adopted the third classification that is mixed presumptions which includes both the aspects of facts as well as law. Hence the existing legal system has three types of presumptions which are as follows:

1) Presumption of Facts- Presumptions of facts are those inferences that are naturally and reasonably concluded on the basis of observations and circumstances in the course of basic human conduct. These are also known as material or natural presumptions. Natural Presumptions are basically instances of circumstantial evidence as it is believed that it is very good to act in the course of reasoning where much inferences can be easily concluded from other evidence otherwise it will keep much ambiguity on the legal system because it will be much more difficult because of the legal system to prove every fact to capture the offenders or law conflicted member of the society. Natural Presumptions are generally rebuttable in nature.

There are few provisions that are directly expressing about Natural Presumptions such as Section 86- 88, Section 90, Section 113A, Section 113 B of Indian Evidence Act. Where Section 113A & 113 B are one of the most important provisions of presumptions under this Act, whereas Section 86 talk about certified copies of foreign judicial records, Section 87 expresses presumption of Books, Maps and Charts, Section 88 deals with presumption related to Telegraphic Messages, Section 90 deals with documents aged thirty years old, whereas Section 113 A deals with hardcore crime that is Presumption as to abatement of suicide by a married women and Section 113 B deals with the presumption as to dowry death. Under the Presumptions of Facts, the concept of ‘shall presume’ is utilized. And by the concept, the court will presume that a fact ascertained before them are proven facts until and unless they are proven disproved by the accused. The concept of ‘shall presume’ expresses that the courts are bound to maintain and recognise some facts as proven by making a mandatory presumption and the court has to consider them as completely proven until such presumption are challenged and disapproved. When these presumptions are disproved by the challenging party then the court has no discretion on maintaining such presumptions.

1.1) Few Conditions Where Court May Use the Presumption of Facts To Ascertain Some Facts:-

Foreign Judicial Records- Section 86 explains the principle that the court has the discretionary power to make presumptions with respect to the originality and accuracy of the certified copies of a different foreign country’s judicial records and the called document should be consistent with the local or domestic rules. The presumption explained under this Section has a very significant role, therefore, should be complied with it. It is also observed that if the court does not feel that the foreign judgments are not consistent with the local laws then these judgments lose the evidentiary values in the court.

Abetment as to Suicide by a Married Women- Section 113A deals with the presumptions of abetment of suicide of a married woman either by her husband or any of his relatives. The court has mentioned few essentials to check that whether a suicide executed by married women is inconsistent with the essentials mentioned under the provision, and if they are consistent to it then the court in such cases will presume that such suicide has been abetted either by the husband or his relative. The essentials of this provision are:

(i) The incident of suicide was committed within a period of seven years from the date of her marriage; and

(ii) Her husband, or his relative, has subjected her to cruelty as according to the Section 498A of IPC.

In Chhagan Singh v State of Madhya Pradesh, the victim was badly beaten by the accused at some place and for such guilty act the accused explains the reasons that the victim was stealing rice and because of it, he has beaten the victim. But just after the few days of the incident victim committed suicide. The court in this matter acquitted the accused or discharged the accused of offence mentioned under Section 113A of Indian Evidence Act as the court didn’t find any evidence subject to cruelty and also mentioned that the essentials of Section 113A are not fulfilled with the facts of the cases, hence in the case of murder legal presumptions of Section 113A is not a part of it. Because the death of the person is caused due to other reasons and the legal principles of 113A cannot be just applied blindly as one has to see the nexus of it. The advantage of the presumption of Section 113A can only be granted if either her husband or any of his relative has treated the women with cruelty in any sense.

In, Nilakantha Pati v State of Orissa, in this case, the accused married the victim in April 1982 and has been benefited with a dowry. But later the accused desired to purchase a house, and of the purpose, he asked the victim to get Rs 70,00 from her parents. When she could not get the amount she was tortured and in 1986 she died. The accused supported his arguments with proper reasoning and logic that the court found the presumption to be of rebuttable nature. As the arguments advanced by the accused have enough relevance, the accused was acquitted of Section 113A. The High Court said that they presumption exited here is rebuttable and such presumption can be escalated whenever the circumstances of the case match the essentials or the interpretation of the legal provisions. And here, in this case, the accused has disproved all the presumptions of the court hence, the accused was released.

In, Mangal Ram & Anor v State of Madhya Pradesh, in this case, the wife of the accused was living with her parents for many years and has no visited her matrimonial home for a long time. But within one month of returning to her matrimonial home, she committed suicide. Therefore the court presumed the circumstance that the accused is responsible for the death of the lady and the case comes under Section 113B of Indian Evidence Act. But the husband and her in-laws proved that the death was not caused because of the reasons subjected to cruelty. The court in that matter said that the presumption was of rebuttable nature and the presumption can’t be sustained anymore, hence the accused acquitted.

1. Abetment of Suicide to married Women for the purpose of Dowry- Section 114B of Indian Evidence Act deals with the principles of presumption related to abetment of suicide to married women for the purpose of dowry. This Section empowers the court to presume that the husband and his relative are the abettors of suicide and the wife was subjected to cruelty or any torture related to demand of dowry. While explaining the concept of Section 113B the court explains certain essentials which are to be fulfilled for raising any presumption related to abetment of dowry death. The essentials of Section 113B are completely the same as of essentials of Section 113A of Indian Evidence Act.

But a thin line difference between Section 113A & 114B is that the presumption of Section 114B only comes to the picture if the prosecution has certain proofs that the cause of death was cruelty or maltreatment or harassment for dowry demand. Hence, under this Section, the presumption is carried only when the prosecution proves the case.

In, Hem Chand v State of Haryana [1] the couple married on 24 May of 1962. The wife left her husband’s home just after 2 months of her marriage and explained the reason to her parents that her husband is demanding for a TV and a refrigerator. After listening to such demands her father out of his hard money gave her around Rs. 6,000 and she left for her matrimonial home. But the husband’s desire was not finishing and he again asked her to get twenty-five thousand rupees from her home as he is willing to buy some real estate property. Thereafter the accused took his wife to her parents’ home and said that he’ll take back her only if he will be paid Rs. 25,000. One year after she came back to her matrimonial home with Rs. 15,000 and promised the balance amount will be paid soon. But on the same day, she died of strangulation in her husband’s home. The trial court and both Supreme Court found accused to be guilty and convicted on carrying the presumptions that her husband has performed cruelty against her and the reason for her death could be the husband’s cruelty for the purpose of dowry.

In Shanti v State of Haryana [2], The Supreme Court held that the victim’s death should be soon after the victim was subjected to cruelty or harassment for the purpose of dowry. But in this matter, the wife was taken back to her home as the dispute was solved by the local panchayat and this incident happened before 10-15 days of her death. However, the facts seem to be so clear but the presumption cannot be made as there was no evidence which indicates that she was treated with cruelty for the purpose of raising dowry when she was taken back to her matrimonial home. Hence in these circumstances, the presumption for dowry death cannot be raised and Section 113B of the Indian Evidence Act cannot be brought into action.

In, Baijnath & Others v. State of Madhya Pradesh [3], Supreme Court expounded that, “One of the essential ingredients of dowry death under Section 304B of the Penal Code is that the women must have subjected to cruelty either by the husband or his relatives for the purpose of dowry soon before her death and bring it as an essential ingredient of Section 304B of IPC the prosecution has to prove the connection of the victim’s death with the act of cruelty by the husband or by his relative for the purpose of demanding dowry and the connection must be proved beyond reasonable doubt then only the court will put the case into the window of Section 113B of Indian Evidence Act.

May Presume- Section 114 of the Indian Evidence Act deals with the concept ‘presumption of certain facts by the court’. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

Illustrations-

• Every negotiable instrument is presumed that it is drawn for the purpose of good consideration.
• There shall be continuity of things unless proven contrary like if a property is considered to be an ancestral property, it shall be presumed that it is so until it is proven contrary to the presumption (Chito Mahtoo v Lila Mahto).
•  If a person refuses to answer a question, which is not compelled by the law to answer, the court may presume that if he answers the question then the answer would be unfavourable to him.
•  That if a man possesses some stolen goods soon after the theft then it is believed that he is either the thief or has received the goods knowing the nature of the goods unless he can account for his possession.

2) Presumption of Law-

Presumptions of law are such inferences and beliefs which are established or assumed by the law itself. It can further be divided into rebuttable presumptions of law and irrebuttable presumptions of law.

Rebuttable Presumptions (praesumptio iuris tantum): Rebuttable Presumptions are certain presumption which is regarded as evidence of good quality and does not lose their quality until proven contrary to the presumption. Although it does not easily measure the extent of such presumption as their validity only exists until they are not proven wrong. The basic example of rebuttable presumptions can be- if a person who is in possession of some stolen property than it is quite obvious that he can either be a thief or a receiver.

Matrimonial offences are one of the best examples to explain any presumption because in such offence the possibility of getting evidence is nearly low as these offences that take place within the closed area of matrimonial house. Hence the presumption is very important in such cases/offences. There are broadly three important provisions regarding the presumption in matrimonial offences which are:

• Presumption as to abetment of suicide by a married woman within seven years of marriage covered under Section 113A of Indian Evidence Act.
• Presumption as to dowry death within seven years of marriage covered under Section 113B of Indian Evidence Act.
• Birth during the marriage is the conclusive proof of legitimacy covered under Section 112 of the Indian Evidence Act.

In, Shantiv. State of Haryana [4], the in-laws of the bride did not allow her to visit her maternal house to meet her parents, and when the bride’s parents came to meet her they were not permitted to enter the house and complained to them about the amount of dowry that the demand of scooter & TV was not fulfilled. Soon after the incident, the wife of the accused suffered an unnatural death. The Supreme Court allowed the presumption stated under Section 113B of Indian Evidence Act as the death was caused within seven years of marriage and that too just after such incident prohibited under this Act, and on the basis of applications of this Section one of the in-laws was convicted for causing dowry death.

In State of M.P. v. Sk. Lallu [5], a newly wedded wife was facing severe beating regularly by her in-laws from the very first day of her marriage, and at last, she ends up dying with 100% of burn injuries. The Court executed the application of presumption stated under Section 113A and explained that such presumption can be invoked to punish the accused.

Ir-rebuttable Presumption (praesumptio iuris et de iure)- Such presumptions cannot be ruled out by any additional probative evidence or argument. Therefore the presumption explained comes under the roof of conclusive presumption which cannot be proven contrary. Eg. A child under the age of seven years is presumed that he is not capable of committing any crime.

2.1) Few Conditions Where Court May Use the Presumption of Law To Ascertain Some Facts:

Presumption of Innocence (ei incumbit probatio qui dicit, non qui negat)- According to this legal maxim, the burden of proof is with the person who declares the facts, not the person who denies the fact. The presumption of innocence is the legal principle which means every person should be considered as an innocent person unless it is proven guilty or until court believes that the person is in charge of acts prohibited under law.

In, Chandra Shekhar v. State of Himachal Pradesh the High Court made great observations and mentioned that freedom of any individual is the prime objective of the constitution and such right cannot be dissolved by any means unless provided by the law itself. It is concluded that unless the person is proved guilty he must be presumed as innocent.

In, Dataram Singh v. State of Uttar Pradesh & anr., the Supreme Court said that a person should be presumed and believed to be innocent unless proven guilty.

Birth During Marriage- The Latin maxim ‘pater est quem muptice demonstrat’, explains a basic assumption that the person who marries women is the father of son/ daughter out of wife. Section 112 of the Indian Evidence Act deals with the legitimacy of a child born during the marriage. The Section implies that if a child is born during the continuance of a valid marriage between the couple then it is conclusive proof of that the child is legitimate and the only ground which is available to either of the parties to prove the illegitimacy is to prove any access to each other in such a way that their marriage was not consumed. The main objective of the lawmaker institute is to provide legitimacy to the child born during a valid marriage and the legislature also explains that such presumption is not only limited to provide legitimacy to the child but also it is to maintain the public morality so that the legitimacy of the child cannot be questioned.

It must be noted that the application used under the Section 112 derives from Section 4 of the same Act and must be read together to understand the general applicability Section 4 which expresses that wherever there is a doubt of the legitimacy of children born during a valid marriage the court will presume, fact that the person whom the mother married the father of that child. Hence to achieve the objective of the legislature the court must assume it to be a case of ‘conclusive proof’. Just like all laws, no law is absolute therefore the legitimacy of such a child can only be rebutted the party proves no non-access to each other or if no marriage was consumed. Which means even the DNA test other such tests are not capable of disproving the presumption.

In Revanasiddappa v. Mallikarjun [6] the Supreme Court opined that: the objective of the Constitution is broadly expressed in the Preamble of our Constitution which focuses on equality, equity, equal opportunity and separate individual’s dignity. The Court while adjudicating such cases must remember the objectives of the constitution that everybody has separate and individual dignity of his own, therefore the court has to look into the matter that illegal or immoral or illegitimate relationships of parent do not hinder the dignity of the child born out of such relationships. As a child born out of such a relationship is innocent and has all the rights empowered to him under the Constitution and the status of the child must be as equal to as of child born out of valid marriage.

In Shanta Ram v. Smt. Dargubai, the Bombay High Court expressed its view that the child born out of void marriages would be deemed to be legitimate child irrespective of any nullity, although such child would not acquire the same right of succession as the original successor will enjoy.

Gautam Kundu v. State of West Bengal [7] the Supreme Court in its observations expresses that-

• Courts have no authority to direct blood test to challenge the legitimacy of the child.
• The husband has only one possibility to get rid of such presumption and for that, he must satisfy the court by proving no- access to consume the marriage.
• The Court should carefully examine the fact that what will be the consequences if the blood test comes in favour of a husband who is challenging the legitimacy of the child. And what if the further consequence has a serious impact on the child’s legitimacy or makes the mother as an impure/ unchaste woman.

1. Presumption of Death- The presumption of death is explained under Section 107 and 108 of Indian Evidence Act which refers to a situation when a person has disappeared for many years, and after such situations the law presumes him to be dead.Section 108 of this Act describes the amount or the tenure i.e. 7 years, where, there should be no proof of the existence of the person in the society.

In Balambal v. Kannammal [8], the court held that the presumption of death could only be invoked if the death or inexistence of that person is proved when the presumption is raised in the court and no person can utilise such presumption for generating any type of death record of the called person.

In T.K Rathnam v. K. Varadarajulu [9], the dissenting opinion of the learned judge explains in his judgment that the presumption of the existence of the person or death of the person is always rebuttable. He also observed that the accurate timing of death is not a matter of presumption rather it is a matter of evidence.

1. Presumption of Sanity- It refers to the mental state of a person facing a criminal trial. Specifically, the court assumes that every person is sane and is fit to his mental capacity until someone proves contrary to the assumptions of the court.
2. Presumption of Constitutionality- The presumption of constitutionality refers to a concept that all statutes, bills, policies, guidelines etc., drafted by different levels of governments are consistent with the constitutional requirements. The court generally presumes that the statues are meeting the constitutional requirements’ and are helping in achieving the constitutional objective. But the person, who interprets these statues in such a manner which makes such statues contrary to constitutional requirements, then has to prove the same.
3. Presumption of Possession- Section 110 deals with such presumption and explains it as when a person who is enjoying the possession of anything and he claims himself as the owner then the court inferences that he is the real owner. These are generally rebuttable presumptions and do not lose their substantiality until they are proven contrary by the affecting party.

3) Mixed Presumptions (Presumption of Fact and law both): 

Mixed presumptions is a blend of different concepts explained above in this article. When the court in its inferences uses such blend consists of different classification of presumption i.e., Presumption of Facts and Presumption of Law then the presumption is considered to be a Mixed Presumption. The principles of such presumptions are only reflected in the English which specifically deals with statute of real property. But in the Indian legal system, the principles of presumptions are expressed specifically and The Indian Evidence Act deals with such principles. The Indian Evidence Act has mentioned few provisions both for the presumption of law and for presumptions of facts. The scope of this statute just does not end here rather it also has different provisions which deal with the discretionary power of Indian Court in raising presumption such as­- Principles of May Presume, Shall Presume and Conclusive Proof.

Conclusion

In Tukaram v State of Maharashtra [10], This case was decided on considering the facts of Mathura Rape Case and while adjudicating the case the Court justified the need and necessities of such presumptions. The Court also explained that Presumptions has a wider scope as they don’t only help the victim in the fast trial but it also helps in giving direction to the case. Therefore such presumption can effectively help the judiciary in providing quick and complete justice to the society. According to Stephen presumption is mandatory, not permissive presumption and especially permissive is dealt in Section 90 of the evidence act. Permissive presumption means it is on the court discretion whether to believe or not to believe.

References

1. (1994) 3 Crimes 608 (SC)
2. AIR 1991 SC 1226
3. (2017) 1 SCC 101
4. A.I.R. S.C. 1126
5. 1990 Cri. L.J. 129
6. (2011, 11 SCC 1)
7. (AIR 1993 SC 2295) 
8. A.I.R 1989 Madras 248 = 1989-1-L.W. 306)
9. (1970 A.P 246)
10. 1979 2 SCC 143

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This article has been written by Pooja Kapur, a fifth-year law student of Amity Law School, Noida. She has discussed the meaning and rules of interpretation of statutes with relevant case laws.

Interpretation meaning

The term has been derived from the Latin term ‘interpretari’, which means to explain, expound, understand, or to translate. Interpretation is the process of explaining, expounding and translating any text or anything in written form. This basically involves an act of discovering the true meaning of the language which has been used in the statute. Various sources used are only limited to explore the written text and clarify what exactly has been indicated by the words used in the written text or the statutes.

Interpretation of statutes is the correct understanding of the law. This process is commonly adopted by the courts for determining the exact intention of the legislature. Because the objective of the court is not only merely to read the law but is also to apply it in a meaningful manner to suit from case to case. It is also used for ascertaining the actual connotation of any Act or document with the actual intention of the legislature.

There can be mischief in the statute which is required to be cured, and this can be done by applying various norms and theories of interpretation which might go against the literal meaning at times. The purpose behind interpretation is to clarify the meaning of the words used in the statutes which might not be that clear.

According to Salmond, “Interpretation”  is the process by which the court seeks to ascertain the meaning of the legislature through the medium of authoritative forms in which it is expressed.

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Construction meaning

In simple words, construction is the process of drawing conclusions of the subjects which are beyond the direct expression of the text. The courts draw findings after analysing the meaning of the words used in the text or the statutes. This process is known as legal exposition. There are a certain set of facts pending before the court and construction is the application of the conclusion of these facts.

The objective is to assist the judicial body in determining the real intention of the legislature. Its aim is also to ascertain the legal effect of the legal text.

Difference between Interpretation and Construction

Classification of Statutes

Codified statutory law can be categorized as follows-

Codifying statutes

The purpose of this kind of statute is to give an authoritative statement of the rules of the law on a particular subject, which is customary laws. For example- The Hindu Marriage Act, 1955 and The Hindu Succession Act, 1956.

Consolidating statutes

This kind of statute covers and combines all law on a particular subject at one place which was scattered and lying at different places. Here, the entire law is constituted in one place. For example- Indian Penal Code or Code of Criminal Procedure.

Declaratory statutes

This kind of statute does an act of removing doubts, clarifying and improving the law based on the interpretation given by the court, which might not be suitable from the point of view of the parliament. For example- the definition of house property has been amended under the Income Tax (Amendment) Act, 1985 through the judgement of the supreme court.

Remedial statutes

Granting of new remedies for enforcing one’s rights can be done through the remedial statutes. The purpose of these kinds of statutes is to promote the general welfare for bringing social reforms through the system. These statutes have liberal interpretation and thus, are not interpreted through strict means. For example- The Maternity Benefits Act, 1961, The Workmen’s Compensation Act, 1923 etc.

Enabling statutes

The purpose of this statute is to enlarge a particular common law. For example- Land Acquisition Act enables the government to acquire the public property for the purpose of the public, which is otherwise not permissible.

Disabling statutes

It is the opposite of what is provided under the enabling statute. Here the rights conferred by common law are being cut down and are being restrained.

Penal statutes

The offences for various types of offences are provided through these statutes, and these provisions have to be imposed strictly. For example- Indian Penal Code, 1860.

Taxing statutes

Tax is a form of revenue which is to be paid to the government. It can either be on income that an individual earns or on any other transaction. A taxing statute thus, levies taxes on all such transactions. There can be income tax, wealth tax, sales tax, gift tax, etc. Therefore, a tax can be levied only when it has been specifically expressed and provided by any statute.

Explanatory statutes

The term explanatory itself indicates that this type of statute explains the law and rectifies any omission left earlier in the enactment of the statutes. Further, ambiguities in the text are also clarified and checked upon the previous statutes.

Amending statutes

The statutes which operate to make changes in the provisions of the enactment to change the original law for making an improvement therein and for carrying out the provisions effectively for which the original law was passed are referred to as amending statutes. For example- Code of Criminal Procedure 1973 amended the code of 1898.

Repealing statutes

A repealing statute is one which terminates an earlier statute and may be done in the express or explicit language of the statute. For example- Competition Act, 2002 repealed the MRTP Act.

Curative or repealing statutes

Through these statutes, certain acts which would otherwise be illegal are validated by curing the illegality and enables a particular line of action.

Rules of Interpretation

Literal or Grammatical Rule

It is the first rule of interpretation. According to this rule, the words used in this text are to be given or interpreted in their natural or ordinary meaning. After the interpretation, if the meaning is completely clear and unambiguous then the effect shall be given to a provision of a statute regardless of what may be the consequences.

The basic rule is that whatever the intention legislature had while making any provision it has been expressed through words and thus, are to be interpreted according to the rules of grammar. It is the safest rule of interpretation of statutes because the intention of the legislature is deduced from the words and the language used.

According to this rule, the only duty of the court is to give effect if the language of the statute is plain and has no business to look into the consequences which might arise. The only obligation of the court is to expound the law as it is and if any harsh consequences arise then the remedy for it shall be sought and looked out by the legislature.

Case Laws

Maqbool Hussain v. State of Bombay,  In this case, the appellant, a citizen of India after arriving at the airport did not declare that he was carrying gold with him. During his search was carried on, gold was found in his possession as it was against the notification of the government and was confiscated under section 167(8) of Sea Customs Act.  

Later on, he was also charged under section 8 of the Foreign Exchange Regulations Act, 1947.  The appellant challenged this trial to be violative under Article 20(2) of the Indian Constitution. According to this article, no person shall be punished or prosecuted more than once for the same offence. This is considered as double jeopardy.

It was held by the court that the Seas Act neither a court nor any judicial tribunal. Thus, accordingly, he was not prosecuted earlier. Hence, his trial was held to be valid.

Manmohan Das versus Bishan Das, AIR 1967 SC 643

The issue in the case was regarding the interpretation of section 3(1)(c) of U.P Control of Rent and Eviction Act, 1947. In this case, a tenant was liable for evidence if he has made addition and alternate in the building without proper authority and unauthorized perception as materially altered the accommodation or is likely to diminish its value.  The appellant stated that only the constitution can be covered, which diminishes the value of the property and the word ‘or’ should be read as land.

It was held that as per the rule of literal interpretation, the word ‘or’ should be given the meaning that a prudent man understands the grounds of the event are alternative and not combined.

State of Kerala v. Mathai Verghese and others, 1987 AIR 33 SCR(1) 317, in this case a person was caught along with the counterfeit currency “dollars” and he was charged under section 120B, 498A, 498C and 420  read with section 511 and 34 of Indian Penal Code for possessing counterfeit currency. The accused contended before the court that a charge under section 498A and 498B of Indian Penal Code can only be levied in the case of counterfeiting of Indian currency notes and not in the case of counterfeiting of foreign currency notes. The court held that the word currency notes or bank note cannot be prefixed. The person was held liable to be charge-sheeted.

The Mischief Rule

Mischief Rule was originated in Heydon’s case in 1584. It is the rule of purposive construction because the purpose of this statute is most important while applying this rule. It is known as Heydon’s rule because it was given by Lord Poke in Heydon’s case in 1584. It is called as mischief rule because the focus is on curing the mischief.

In the Heydon’s case, it was held that there are four things which have to be followed for true and sure interpretation of all the statutes in general, which are as follows-

1. What was the common law before the making of an act.
2. What was the mischief for which the present statute was enacted.
3. What remedy did the Parliament sought or had resolved and appointed to cure the disease of the commonwealth.
4. The true reason of the remedy.

The purpose of this rule is to suppress the mischief and advance the remedy.

Case laws

Smith v. Huges, 1960 WLR 830, in this case around the 1960s, the prostitutes were soliciting in the streets of London and it was creating a huge problem in London. This was causing a great problem in maintaining law and order. To prevent this problem, Street Offences Act, 1959 was enacted. After the enactment of this act, the prostitutes started soliciting from windows and balconies.

Further, the prostitutes who were carrying on to solicit from the streets and balconies were charged under section 1(1) of the said Act. But the prostitutes pleaded that they were not solicited from the streets.

The court held that although they were not soliciting from the streets yet the mischief rule must be applied to prevent the soliciting by prostitutes and shall look into this issue. Thus, by applying this rule, the court held that the windows and balconies were taken to be an extension of the word street and charge sheet was held to be correct.

Pyare Lal v. Ram Chandra, the accused in this case, was prosecuted for selling the sweeten supari which was sweetened with the help of an artificial sweetener. He was prosecuted under the Food Adulteration Act. It was contended by Pyare Lal that supari is not a food item. The court held that the dictionary meaning is not always the correct meaning, thereby, the mischief rule must be applicable, and the interpretation which advances the remedy shall be taken into consideration. Therefore, the court held that the word ‘food’ is consumable by mouth and orally. Thus, his prosecution was held to be valid.

Kanwar Singh v. Delhi Administration, AIR 1965 SC 871.

Issues of the case were as follows- section 418 of Delhi Corporation Act, 1902 authorised the corporation to round up the cattle grazing on the government land. The MCD rounded up the cattle belonging to Kanwar Singh. The words used in the statute authorised the corporation to round up the abandoned cattle. It was contended by Kanwar Singh that the word abandoned means the loss of ownership and those cattle which were round up belonged to him and hence, was not abandoned. The court held that the mischief rule had to be applied and the word abandoned must be interpreted to mean let loose or left unattended and even the temporary loss of ownership would be covered as abandoned.

Regional Provident Fund Commissioner v. Sri Krishna Manufacturing Company, AIR 1962 SC 1526, Issue, in this Case, was that the respondent concerned was running a factory where four units were for manufacturing. Out of these four units one was for paddy mill, other three consisted of flour mill, saw mill and copper sheet units. The number of employees there were more than 50. The RPFC applied the provisions of Employees Provident Fund Act, 1952 thereby directing the factory to give the benefits to the employees.

The person concerned segregated the entire factory into four separate units wherein the number of employees had fallen below 50, and he argued that the provisions were not applicable to him because the number is more than 50 in each unit. It was held by the court that the mischief rule has to be applied and all the four units must be taken to be one industry, and therefore, the applicability of PFA was upheld.

The Golden Rule

It is known as the golden rule because it solves all the problems of interpretation. The rule says that to start with we shall go by the literal rule, however, if the interpretation given through the literal rule leads to some or any kind of ambiguity, injustice, inconvenience, hardship, inequity, then in all such events the literal meaning shall be discarded and interpretation shall be done in such a manner that the purpose of the legislation is fulfilled.

The literal rule follows the concept of interpreting the natural meaning of the words used in the statute. But if interpreting natural meaning leads to any sought of repugnance, absurdity or hardship, then the court must modify the meaning to the extent of injustice or absurdity caused and no further to prevent the consequence.

This rule suggests that the consequences and effects of interpretation deserve a lot more important because they are the clues of the true meaning of the words used by the legislature and its intention. At times, while applying this rule, the interpretation done may entirely be opposite of the literal rule, but it shall be justified because of the golden rule.  The presumption here is that the legislature does not intend certain objects. Thus, any such interpretation which leads to unintended objects shall be rejected.

Case laws

Tirath Singh v. Bachittar Singh, AIR 1955 SC 850

In this case, there was an issue with regard to issuing of the notice under section 99 of Representation of People’s Act, 1951, with regard to corrupt practices involved in the election.

According to the rule, the notice shall be issued to all those persons who are a party to the election petition and at the same time to those who are not a party to it. Tirath Singh contended that no such notice was issued to him under the said provision. The notices were only issued to those who were non-parties to the election petition. This was challenged to be invalid on this particular ground.

The court held that what is contemplated is giving of the information and the information even if it is given twice remains the same. The party to the petition is already having the notice regarding the petition, therefore, section 99 shall be so interpreted by applying the golden rule that notice is required against non-parties only.

State of Madhya Pradesh v. Azad Bharat Financial Company, AIR 1967 SC 276, Issues of the case are as follows.

A transporting company was carrying a parcel of apples was challenged and charge-sheeted. The truck of the transporting company was impounded as the parcel contained opium along with the apples. At the same time, the invoice shown for the transport consisted of apples only.

Section 11 of the opium act 1878, all the vehicles which transport the contraband articles shall be impounded and articles shall be confiscated. It was confiscated by the transport company that they were unaware of the fact that opium was loaded along with the apples in the truck.

The court held that although the words contained in section 11 of the said act provided that the vehicle shall be confiscated but by applying the literal rule of interpretation for this provision it is leading to injustice and inequity and therefore, this interpretation shall be avoided. The words ‘shall be confiscated’ should be interpreted as ‘may be confiscated’.

State of Punjab v. Quiser Jehan Begum, AIR 1963 SC 1604, a period of limitation was prescribed for, under section 18 of land acquisition act, 1844, that an appeal shall be filed for the announcement of the award within 6 months of the announcement of the compensation. Award was passed in the name of Quiser Jehan. It was intimated to her after the period of six months about this by her counsel. The appeal was filed beyond the period of six months. The appeal was rejected by the lower courts.

It was held by the court that the period of six months shall be counted from the time when Quiser Jehan had the knowledge because the interpretation was leading to absurdity. The court by applying the golden rule allowed the appeal.

Harmonious Construction

According to this rule of interpretation, when two or more provisions of the same statute are repugnant to each other, then in such a situation the court, if possible, will try to construe the provisions in such a manner as to give effect to both the provisions by maintaining harmony between the two. The question that the two provisions of the same statute are overlapping or mutually exclusive may be difficult to determine.

The legislature clarifies its intention through the words used in the provision of the statute. So, here the basic principle of harmonious construction is that the legislature could not have tried to contradict itself. In the cases of interpretation of the Constitution, the rule of harmonious construction is applied many times.

It can be assumed that if the legislature has intended to give something by one, it would not intend to take it away with the other hand as both the provisions have been framed by the legislature and absorbed the equal force of law. One provision of the same act cannot make the other provision useless. Thus, in no circumstances, the legislature can be expected to contradict itself.

Cases –

Ishwari Khaitan Sugar Mills v. State of Uttar Pradesh,  in this case, the State Government proposed to acquire sugar industries under U.P Sugar Undertakings (Acquisition) Act,  1971. This was challenged on the ground that these sugar industries were declared to be a controlled one by the union under Industries (Development and Regulation) Act, 1951. And accordingly, the state did not have the power of acquisition of requisition of property which was under the control of the union. The Supreme Court held that the power of acquisition was not occupied by Industries (Development and Regulation) Act, 1951. The state had a separate power under Entry 42 List III.

M.S.M Sharma v. Krishna Sinha, AIR 1959 SC 395.

Facts of the case are as follows- Article 19(1)(a) of the Constitution provides for freedom of speech and expression. Article 194(3) provides to the Parliament for punishing for its contempt and it is known as the Parliamentary Privilege. In this case, an editor of a newspaper published the word -for- word record of the proceedings of the Parliament including those portions which were expunged from the record. He was called for the breach of parliamentary privilege.

He contended that he had a fundamental right to speech and expression. It was held by the court that article 19(1)(a) itself talks about reasonable freedom and therefore freedom of speech and expression shall pertain only to those portions which have not been expunged on the record but not beyond that.

Conclusion

Every nation has its own judicial system, the purpose of which to grant justice to all. The court aims to interpret the law in such a manner that every citizen is ensured justice to all. To ensure justice to all the concept of canons of interpretation was expounded. These are the rules which are evolved for determining the real intention of the legislature.

It is not necessary that the words used in a statute are always clear, explicit and unambiguous and thus, in such cases it is very essential for courts to determine a clear and explicit meaning of the words or phrases used by the legislature and at the same time remove all the doubts if any. Hence, all the rules mentioned in the article are important for providing justice.

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This article is written by Suryansh Verma, a 3rd-year student at Dr Ram Manohar Lohiya National Law University, Lucknow. In this article, he throws light on the Hub and Spoke Conspiracies that conspire between firms in the respective competitive markets in the form of cartels. He has also referred to case laws concerned with the same. 

Introduction

The Hub and Spoke model is a doctrine of the US Antitrust law in cases of Competition Law and Criminal Law. In antitrust law, it is a cartel in which a firm colludes amongst the upstream firms or the downstream firms through vertical restraints.

There are no definitions of the concept in European Law as well.

However, the US Court of Appeals for the First Circuit explained the basic concept behind this conspiracy. In such a conspiracy, there is a central mastermind which controls several spokes or co-conspirators. The co-conspirators usually participate in certain transactions with the individual or a group of individuals at the “Hub”. Such an agreement collectively furthers a single, illegal enterprise for achieving a specific object.

For example – There are three companies A, B, and C dealing in pharmaceuticals. B, in this case, will be used as the hub by A to implement a price increase. This will be done if C does the same. B will communicate to C, A’s intention to increase its prices. C will confirm this to B that it will be following A’s intention to increase the price. Finally, B will pass on C’s confirmation to A. B’s function is that of a hatch between the parties to the cartel.

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Elements of the Hub and Spoke conspiracy 

The Hub and Spoke Conspiracy is said to have four elements i.e. –

• The Hub, which is the dominant purchaser.
• The Spokes, which are the competitors in the market which enter into vertical agreements with the hub.
• The Rim, which connects the hubs and spokes resulting in horizontal agreements between the two.
• Vertical restraints which connect the hub and the spokes.

What does The Hub do?

The hub is the facilitator and enforcer of the collusion between the spokes. The hub is basically, an upstream supplier or a downstream customer that facilitates cartelization. Not all, but some of the cartel functions are centralized at the hub. A hub functions by the vertical or horizontal relationships with its spokes. The hub is the key player in coordinating the collusive scheme.

It is often the Hub that has an object to achieve by way of the hub and spoke collusion. The hub helps in achieving a mutual understanding between the Spokes. 

A hub can reprimand the spokes if they do not comply with its policies. This, in turn, makes the enforcement of hub and spokes arrangement quite efficient. The hub performs its own monitoring of the collusion, collects reports from the spokes and worked accordingly with the non-compliant spokes. The hub also needs to convince each Spoke that the other Spokes are participating in the collusion.

How do the Spokes function?

The firms or the colluding competitors which are at the end of the rims are the Spokes. The Rim is the horizontal or the vertical agreement between the Hub and the Spokes. For a hub and spoke cartel, the existence of a Rim is of paramount importance. Without the rim, the cartel is just an arrangement of vertical relationships between the Spokes. The Spokes usually function via the Hubs. They convey their messages to the Hub which further conveys it to the other spokes in the collusion.

The requirement of Rim

In the hub and spoke cartels, the rim is very pertinent. Without, the rim, the hub and spoke cartel cannot exist. The alleged hub and spoke cartel, is just a set of vertical relationships which result in parallel conduct and do not establish a horizontal conspiracy.

For proving a hub and spoke conspiracy, there needs to be evidence that there is a rim which connects the spokes.

It has been held in various judgments of the US Supreme Court that rimless wheel theories do not establish the existence of an antitrust violation.

Cartels are facilitated through vertical relationships

Less use of horizontal coordination 

Hub and Spoke cartels collude with either upstream firms or the downstream ones. Cartels make use of various mechanisms to collude such as using third parties to indulge in collusive activities. The hub enforces the cartel by using its vertical relationship with the spokes. This, in turn, reduces the need for horizontal coordination. The enforcement of these cartels is effective because the hub can reprimand the spokes in cases of non-compliance.

Ambiguity

Practices such as certain geographic restraints, exclusivity clauses or the Most Favoured Nation Clause divide the territory among competitors. Such arrangements may generate both, competitive or anti-competitive effects. The proof of a set of vertical relationships which give rise to parallel conduct cannot be conclusive proof of an antitrust violation. 

This creates ambiguity in identifying such cartels. There needs to be proof that such an action will hinder the competitors from taking any independent action. There is rarely any proof of direct communication among the colluders. 

The courts, however, take into account the set of vertical relationships that would have facilitated the horizontal relationships. The vertical relationships are very much ambiguous as there is no standard proof of existence. The courts take into account other necessary factors as well for proving the existence of a cartel. To know more about cartels Click Here.

Why the Hub and Spoke Cartels are Less Effective?

 Collusion between competitors requires a mutual understanding between them and also direct contact between them. In a hub and spoke cartel, this mutual understanding is achieved by indirect communication through the Hub.

Comparing direct communication with indirect communication, hub and spoke cartels are less effective.

The first reason being the indirect communication between the competitors. The messages between the spokes lose information whilst going through the hub. Collusion requires each and every competitor to achieve the trust of other cartel members. This would, in turn, help them to take the cartel members in confidence and also that they will abide by the collusive outcome.

While making direct communication with the competitors, this trust can be gained not only by words but also by the facial expressions, body language, etc. In the hub and spoke cartels, indirect communication does away with all of these.

In addition to this, the hub may sometimes forget to convey the message said by a spoke or insert something else which the spoke did not say. Summing it all up, the messages conveyed by a hub are less informative which makes it difficult to coordinate on a collusive arrangement.

Secondly, the hub can intentionally contort the messages or control the communication between the spokes in any way. The hub cannot be presumed to be a neutral Third Party. The Hub might have a different objective when compared to the Spokes. Even though the Hub and Spokes all want collusion to exist, the desired collusion might differ between them. It is totally possible that even in direct communication some firms may try to mislead the others by convoluting the material facts.

Some illustrative cases

 The article shall encompass the nine landmark cases on Hub and Spoke Cartels –

Interstate Circuit, Inc., et al v. the United States

The case is concerned with the propagation of movies. The market consisted of first-run theatres where the movies which were released were shown first. The market also consisted of second-run theatres where the movie was shown a little later at a lower price. There were two chains which dominated this whole arena. They were – the Interstate Circuit and the Texas Consolidated. The Interstate Circuit exercised a monopoly over forty-three theatres whereas the Texas Consolidated did on sixty-six theatres.

The first run theatres were showing a movie for a price of 40 cents, whereas the same movie was shown by the subsequent theatres showed two films sometimes at an extremely low price.

In 17 out of 18 subsequent-run theatres, the price of the ticket was even less than twenty-five cents. In the majority of those, the price was fifteen cents.

The tough competition forced Interstate to coordinate with the movie distributors in order to control the subsequent-run theatres. The manager of Interstate started to engage in communications with the branch managers of the eight distributors.

The plan was that the subsequent-run theatres should not charge less than twenty-five cents per ticket. The same was conveyed to the movie distributors. This arrangement would accrue benefit to Interstate. This plan would raise the price of the ticket and lower the quality of experience provided by the other theatres. 

For this scheme, Interstate would need to inform each and every movie distributor about such a scheme. A letter was sent by the manager to the 8 distributors. This letter had the contents related to the scheme. After the letter, meetings were conducted between the manager and each of the distributors bilaterally.

The Supreme Court of the US considered this letter as instrumental in achieving the understanding between the distributors. The Court was of the view that even though there was a lack of direct communication between the movie distributors, there was a mutual understanding between them. All the distributors had given their adherence to the scheme.

The Court apparently found this conduct to be illegal as the arrangement went ahead of a vertical contract between one upstream firm and one downstream firm. The downstream firm achieved collusion by way of upstream firms. In this, the downstream firm i.e. Interstate was the Hub whereas the movie distributors were the Spokes. They were told that the other distributors were complying as well.

In re Toys “R” Us, 126 F.T.C. 415

In the 1900s, the dominant toy retailer in the U.S. market was Toys “R” Us (20% market share). There were certain upstream firms such as Mattel, Hasbro, Tyco and Little Tikes with 18%, 17%, 3.2% and 2.8% market shares respectively. Toys “R” Us was one of the most important customers of the upstream firms.

There existed warehouse clubs which sold at a lower rate as compared to Toys “R” Us(hereinafter referred to as TRU). The divisions of Walmart, K-mart, etc. These clubs sold lesser toys as compared to TRU. They also worked with the manufacturers to get some specially-packaged products which were sold at a higher price. However, the value of the unit was very less which created a huge margin of profit.

The clubs used to sell the toys at a price lower than that of TRU. TRU was no more the lower price seller. There was an alternative of cutting down on the prices of the toys but it would have ultimately led to stiff competition amongst the clubs. Moreover, it would also affect the profits of TRU.

The other way was by colluding with the toy manufacturers and limit the supply of toys to the clubs. The strategy adopted by TRU was pretty simple. It involved the exclusion of the rival firms by curbing down the variety of products being offered to them.

The toy manufacturers were sceptical about this arrangement. A toy manufacturer was willing to comply only if other manufacturers were willing to do so. Also, this collusive scheme would also be executable only when all the manufacturers were bought into it. Manufacturers such as Mattel, Hasbro and others wanted to know the reaction of their competitors with regards to the action of TRU.

All of them wanted to be assured that they are being treated the same as other competitors. TRU indulged into bilateral meetings with each of the toy manufacturers. TRU went to each of these manufacturers and communicated to them about the compliance by other manufacturers. TRU used the acceptance given by one toy manufacturer to bring others on board.

TRU did this for over a period of 12 months and surpassed many obstacles in the way. In this case, also, TRU was the Hub being the downstream supplier whereas the toy manufacturers were the Spokes. There was always apprehension on the part of the manufacturers of deviation by rival firms. TRU also used to monitor compliance by each and every manufacturer. The manufacturers who did not comply with TRU’s policies were punished for such non-compliance.

TRU had organized a horizontal agreement among the toy manufacturers. The executives at TRU were operating at the centre of the hub and spoke conspiracy. They were hurling commitments at the manufacturers as well. 

This collusive strategy was actually effective in bringing down the sales of the clubs. The sale stats of Hasbro and Mattel to the clubs dropped from a whopping 32.5 million dollars in 1991 to 10.7 million dollars in 1993. This was a considerable drop that too within a period of 2 years.

TRU was successful in achieving the object of the Hub and Spoke conspiracy.

United States v. Parke, Davis & Company, 164 F. Supp. 827 (D.D.C. 1958)

This case is concerned with the manufacturing and selling of pharmaceutical products by Parke, Davis & Company to its retailers and drug wholesalers. Parke Davis used to have a suggested minimum retail price. In 1956, some of the drug shop chains in Washington D.C. began to price the drugs below the SMRP. There was one retailer, especially who was engaged in pricing the drugs below the SMRP at a very low cost.

Parke, Davis decided to refuse the drugs to the retailers who would price them below the SMRP. All the wholesalers and retailers were informed of this policy in July 1956. After this, Parke, Davis stopped the supply of five retailers who were still pricing the drugs below the SMRP. Parke decided to modify the policy by stating that if the retailer advertised a price below SMRP, then only the sales shall be cut off.

After some time, Drug Dart and the other retailers started to advertise lower prices of the drugs. Parke Davis did not refuse to sell to them because of an inquiry pending before the Antitrust Division of the U.S. on a complaint by Drug Dart.

The communications that Parke Davis had with the retailers and the wholesalers were bilateral, or with a single retailer or wholesaler. The Department of Justice held Parke Davis to be in violation of section 1 of the Sherman Act.

As the communications between Parke Davis and the wholesalers/retailers was always one on one, it was able to coordinate a plan through the hub and spoke arrangement. In such an arrangement, Parke Davis acted like the Hub whereas the wholesalers or retailers were the Spokes. The plan was to convince the retailers not to price the drugs below the SMRP.

Department of Justice’s complaint was dismissed by the District Court on the basis of evidence that there was none where Parke, Davis discussed its sales policies with any of the wholesalers or retailers.

The Supreme Court held the conduct of Parke, Davis to be in violation of sections 1 and 3 of the Sherman Act.

The United States v. Apple Inc.

Amazon used to dominate the e-book market back in 2007 by the introduction of Kindle. Amazon used to charge $9.99 for a typical $30 hardcover. Amazon had a 90% share in the e-book market. This is the famous e-book case wherein Apple was launching the iPad in January 2010. The goal of Apple was to stock the iBookstore.

This would help the iPad users in purchasing and downloading them by the time of the launch. For this, Apple had to work out an arrangement with the six big shots of the book publishing department – Hachette, HarperCollins, Penguin, Random House, Macmillan, and Simon & Schuster.

The CEOs of the Big Six used to discuss amongst themselves in meetings matters pertaining to the industry and also Amazon’s pricing policy and joint strategy for raising these prices. The publishing houses had to adopt a unified front to bring about a change in Amazon’s pricing policy.

The Big Six wanted to raise the price of the e-books from $9.99. The objective of Apple was to compete with Amazon and the publishers wanted to reduce the power of Amazon in the market. This made them allies. Amazon used to set the retail price of every e-book i.e. at $9.99 (known as the wholesale model). The director of Apple’s digital content stores, Eddy Cue was in negotiations with the Big Six.

He suggested another wholesale model but with higher prices of the e-books. Two of the big six companies suggested an agency model in which the retail prices would be decided by the publishing companies. And, the revenue would be shared by Apple and the companies. This model was accepted by Apple with some control over deciding the retail prices.

The retail prices suggested by Apple were $9.99, 12.99$ and $14.99. The price of the e-books was dependent on the price of the Hardcover of the same book. These prices would not benefit the publishers if Amazon continued with its price of $9.99.

Thus, Apple adopted a strategy where the publishers would compel Amazon to adopt the agency model. Furthermore, it added a clause to the contracts with publishers wherein if any publisher offered a lower price for the e-book to Amazon, it will do the same for the price at iBookstore. All of this would have done three things i.e.

• The high prices of e-books will increase the sale of hardcover where the margin of profit is more. 
• Control over retail prices is going to be profitable for Apple. How? Once the e-book market is well established, Apple could raise the prices of the books. 
• Apple will be able to enter the market more easily which would weaken Amazon’s position.

This plan of Apple was accepted by the publishers. As you’ve read in the previous case wherein Toys R Us made sure that every other toy manufacturer was complying with the collusive scheme, Apple also made sure that all the competitors i.e. the Big Six were on the same page.

The Department of Justice in the complaint against Apple said that this adoption of the Agency Model will raise the prices of e-books. It takes away the authority from the publishers to set the retail prices.

This, in turn, would result in higher prices of the e-books. The clause added to the contract also ensures that nobody could lower the prices of e-books except for Apple. Amazon was dominant in the e-book market. Both, Apple and the publishing houses wanted to decrease this dominance of Amazon in the market of e-books.

Eddy Cue was the Hub in this arrangement whereas the CEOs of the publishing houses were the Spokes. There was a direct communication between the hub and spokes.

Finally, after a series of negotiations, and collusions between Apple and the Big Six, Amazon finally adopted the Agency Model. This led to the rise in the retail prices of the e-books.

Apple was found guilty of violating section 1 of the Sherman Act by the District Court. Apple also lost when it preferred an appeal before the Court of the Second Circuit which supported the judgment of the District Court. The Supreme Court also denied the petition filed by Apple for Certiorari.

A horizontal price-fixing conspiracy was crafted by Apple in the instant case

The PepsiCo case

This case involved a high-profile hub and spoke conspiracy. Emphasis was laid down on the requirement of the existence of the rim to prove such cartel. In this case, what happened was that Coca Cola entered into vertical agreements with distributors which included loyalty clauses. These clauses forced the distributors to decide between Coca Cola and Pepsi Co. The legal validity of these clauses was challenged by Pepsi Co. wherein the judgment was given in favour of Coca Cola. The Courts of the Second and Fourth Circuit stressed the requirement of the rim.

Similarly, in the Dickson case wherein, certain distribution agreements were disputed. The district courts said that without the rim, an action cannot be taken against the plaintiffs. This contention was rejected by the Court of the Fourth Circuit that even rimless wheel theories can establish a violation of the antitrust conspiracies.

 Conclusion

A hub and spoke cartel is like a wheel. The hub plays the most important role in executing such cartels. In the above-mentioned cases, it has been specified how the hub functions giving directions to the Spokes. And, also how the Spokes convey their messages to other spokes via the Hub. Such cartels are executed for achieving a certain objective. For example, Apple wanted to raise the retail prices of the e-books that is why it colluded with the publishers. Such cartels are easy to crack. Most of the cartels are caught within a minimum period of 3 months (in the Parke Davis Case).

 This short duration shows the rapidity with which such cartels are caught. Such cartels involve the exchange of information in which the firm collects and distributes the information. This type of cartel is a method that firms use frequently to restrain competition in markets.

It is extremely difficult to achieve a mutual understanding by way of Hub and Spoke collusion because of indirect communication. However, once such an understanding is achieved, it becomes very easy to control the market. 

The post The Hub and Spoke Conspiracy in Competition Law appeared first on iPleaders.

This Article has been edited by Mansi Bathija and written by Ayushi Yadav, a fourth-year law student from Banasthali Vidyapith, Rajasthan. She has discussed tax planning schemes and methods provided by taxation law in India.

Tax Planning – Introduction

As we all know, the Government has imposed tax liability on taxpayers. In the era of high tax rates, everyone wants to save their money for their future plans. To reduce that liability taxpayer do financial plans to save their taxes and future investments. For salaried individuals, it is essential to invest their money in the right way for fruitful consequences. In this article, we will discuss what is tax planning and tax management and how does it help the corporates and individuals.

Tax Planning Meaning

Tax planning is an activity to reduce tax liability. Tax planning is the basic and important part of the financial plan and helps to save our capital. There are many options that provide deduction in the tax liability of the taxpayer, from which Section 80C of the Income Tax Act, 1961 is the most suitable option for an individual to claim the tax deduction. There are many schemes under Sec.80C which provided eligible deduction like under life insurance, contract for a deferred annuity, contribution by an individual provident fund, contribution by an employee to a recognized provident fund and to an approved superannuation fund, contribution in pension fund, etc. but one should reduce his tax liabilities within the framework of law.

As in the case of McDowell & Co. Ltd. v. CTO (1985) 3 SCC 230, McDowell & Co. Ltd. was a licensed manufacturer of Indian liquor. Appellant paid sales tax to the sales tax authority on the basis of turnover but excluded excise duty. The question raised before the SC was that whether the excise duty which was payable by the appellant but had been paid by buyers was actually a part of turnover. Here appellant tried to reduce the burden of sales tax for which the duty burden was directly transferred to the buyers. 

SC held that “tax planning may be legitimate if it is within the framework of law, but the colorable device cannot be part of tax planning. It is wrong to say that it is honorable to avoid payment of tax by the dubious method. It is the obligation of every citizen to pay tax honestly without resorting to subterfuges.”  

Tax Planning Objective

• Reduce Tax Liability.- The main purpose of tax planning is to reduce tax liability imposed on a person. Every individual wants to reduce their tax burden and save that money for their future plans. So an individual can do so by prior planning and can avail all the benefits to reduce his tax.
• Minimization of litigation.- Taxpayers want to minimize his legal litigations. After consulting his legal advisor and adopting proper provisions of law for tax planning can minimize the litigation. This can save taxpayers from legal harassment.
• Economic stability.- If a taxpayer paid all the taxes without legally due then it will create a more productive investment in the economy. Prior plans help taxpayers as well as the economy.
• Productivity.- If a taxpayer is aware of all the tax compliance and does productive investment planning then it will create more tax saving options for him.
• Financial Growth.- If tax planning is done in the right manner and is going in the right direction, it will help in financial growth with economic growth.   

Features of Tax Planning

• Reduction in tax liability.-  one of the most important features of tax planning is to reduce tax liability. Every individual has done his financial plan so he can reduce his tax amount and can save for his future plans.
• Advance planning.- one has to arrange his tax plans at the beginning of the financial year because no one can plan to reduce his tax liability day before filing an income tax return.
• Investment in the right direction.- with the help of tax planning one can invest his money in the right direction by choosing the right policy. Investment in any assets or policy will not help in saving money from taxes, for this right investment should be done.
• Dynamic in nature.- tax planning has to be done every year because of the new implementation of policies introduced by the government. One has to modify his tax plans at the beginning of every financial year.  

Areas of Tax Planning

For implementing tax planning one can use different ways to save his tax money. There are some areas where we can plan to reduce our tax liability-

1. 1. Reducing Taxable Income .- one can use government schemes and programs to reduce his taxable income, it will directly reduce his tax liability. One should try to minimize his taxable income to reduce his tax amount.
   2. Deduction planning.- there are many deductions provided by a taxation law. One should implement and plan those deductions. The major area of the deduction is available under Sec.80C where one can claim a deduction for life insurance, mutual funds, home loan interest and many more.
   3. Investment in tax planning.- assessee can invest in policy for future plans and save his money from tax.
   4. Year-end planning strategies.- one can reduce his tax liability for the next year by prepaying those expenses which will be imposed next year and can make a strategy before starting the new financial year. 

Tax Planning Examples

Tax planning is an arrangement to reduce tax liabilities. How can an individual reduce his tax liability by planning at the beginning of the financial year? Let’s take a look at some examples-

1. Mr. W who is an individual of age 45 years, whose taxable income is rs.5,00,000 and except a premium of medical insurance of rs.10,000 he has invested no money in any scheme. After calculating all his income details and deduction his gross tax amount will be rs. 16,224.
2. Mr. Y who is an individual of the same age as Mr. W and all the income details are similar to Mr. W. But Mr. Y invested his money in schemes offered by the government under Sec.80C, his gross tax amount will be rs.0.

This is how one can reduce his tax liability by investing in the right schemes and programs or otherwise has to pay high tax rates.

Tax planning and Tax Management

Tax planning helps in reducing tax liability, where tax management is to consider all the law provisions and work within those provisions. 

Tax Planning and Tax Evasion

Tax Evasion is not a legal practice to avoid tax liabilities. To avoid tax in an illegal manner like giving untrue statement knowingly, submitting misleading documents, suppression of facts, misguided by not maintaining proper account of income earned will lead to punishment under relevant laws for tax evasion. In this context, The Court in the case of CIT v. Sri Abhayananda Rath Family Benefit Trust [2002] 123 Taxmann 81 (Ori.), said that ‘evasion’ necessarily means, ‘to try illegally to avoid paying tax’.

Let’s understand Tax Avoidance and Tax Evasion by an illustration –

In a state say, Punjab, the government has granted exemption from excise duty for five years to the industries with the purpose of increasing industrialization in these areas.

If a manufacturer sets up his industry in Punjab is Tax planning. But he brings an almost ready product to Punjab just for minor operations and sells it in Punjab. This is Tax Avoidance. Here the purpose of government was defeated. 

If a manufacturer manufactures the good somewhere else and dispatches it there but shows that product manufacture and sold in Punjab. This is a Tax Evasion. 

Tax Avoidance

Tax Avoidance is reducing tax liability in legal ways. Tax avoidance is done by taking advantage of loopholes of the law. Provisions of law interpreted in such a manner that it will avoid payment of tax. No element of mala fide motive present in tax avoidance. Even the Court in the support of the tax avoidance said that tax avoidance is not unlawful and the taxpayer can take its advantages. One can minimize his tax liability within the legal framework even by taking advantage of loopholes in the law.

Essential Features of Tax Avoidance are as follow-

• Legitimate arrangements should be in such a manner that will minimize the tax liability. 
• Tax avoidance is in respect of legal provisions and carries no public disgrace with it.

Difference between Tax Avoidance and Tax Evasion

Tax Avoidance and Tax Evasion both practices are done by taxpayers to avoid tax liabilities. But both the practice has different legal provisions.

Need of Tax Planning

Tax planning is essential to point in a person’s life. As the Government imposed high tax rates so, to reduce that tax liability there is a requirement of tax planning. There are many schemes and offers provided in taxation law. One has to choose the right scheme where he can invest and avail the benefits of those schemes. Many Benefits are provided to assesses like-

• Deduction under Section 80C
• Deduction for HRA
• Deduction on education loan
• Investment in senior citizen scheme
• Investment in mutual funds 
• Investment in national saving schemes
• Any many miscellaneous schemes.  

Tax Planning benefits

Tax planning should be done to reduce tax liability but what are other benefits of tax planning? Let’s discuss here, a very important factor of tax planning and every individual or company focus on this factor i.e, to save tax. The main purpose of tax planning is to save capital from taxes and use it for the more beneficial purposes like invest in some beneficial scheme. Better to save the money at the beginning of the year by planning better to spend it in paying tax. One should avail the offers as much as he can, so he can spend that money in any other way or save for his future plans.

Methods of Tax Planning

• Short-Range Tax Planning.- short-range tax planning involves year to year planning to complete some specific and limited objects. In this type of tax planning, one can invest in PPF or NSCs within the prescribed limit of income.  
• Long-Range Tax Planning.- unlike short range tax planning, long-range tax planning are those activities undertaken by an assessee, which does not pay off immediately. This starts at the beginning or the income year to be followed around the year. 
• Permissive Tax Planning.- Permissive tax plannings are permissible under a taxation law. In India, there are many provisions of law which offers deduction, exemption, contribution and incentives. E.g. Sec. 80C of the Income Tax Act which offers deduction, contribution, subscription, etc.
• Purposive Tax Planning.- Purposive tax planning refers to those plannings by which taxpayers can avail maximum benefits by applying provisions of law based on national priorities. Section 61 to 65 of the Income Tax Act talks about the income of another person included in the income of the assessee. So, the assessee can plan in such a manner that these provisions do not get attracted and it would increase disposable resources.  

Corporate Tax Planning 

Tax planning regarding Residential Status

Non- residents

Tax liabilities for non-residents under tax law-

1. A non-resident person in India is one who has not completed the basic condition of being a resident of India. A Hindu Undivided family can also be non-resident of India as an individual. If a firm or an association of persons who are said to be resident in India, control or manage the affairs wholly outside India will also be non-resident.
2. Foreign income is not taxable in the hands of non-resident in India.
3. Under Sec.9 certain income is deemed to arise in India even if it may arise outside India.
4. Tax paid on behalf of the non-resident/foreign companies in respect of other income shall not be taxable under Sec. 10(6B).

And many other provisions with respect to non-resident in India like- 115A, 115AB,44BBA, etc.

For non-resident government provide relief of Double Taxation. Double taxation is, the person is liable to pay taxes in two different countries, one is from where he earned and another one is where he is resident. So to avoid this double taxation Government of India has signed avoidance agreement with other countries under Sec. 90. And if there is no agreement exists between the two countries then double tax income governed by the provision of Sec.91.  

Residents

Section 6 of the Income Tax Act provides Residential status of Indian. As per Sec.6 if any person resident in India in the previous year for 182 days or more, and during the previous four years resident for 365 days or more.

The tax law has categorized the residents into two parts i.e.,

• Resident and non-ordinarily resident (RNOR)
• Resident and ordinarily resident (ROR)

For RNOR, the individual has been Non-Resident in India for at least 9 fiscal years out of 10. In the previous 7 years, he has been in India for 729 or fewer days.

Tax planning for New Business

Any person or company can do their financial planning to reduce their tax liability. An individual can plan his tax liability by contribution in government schemes, deduction, subscription or any other exemption provided by law. But how can be tax planning is done with reference to setting up of new business, financial management decision, employee remuneration, etc. we will discuss it here.

Setting up a new business

To set up a new business, one has to decide the following matters-

Location of the new undertaking

Many factors can affect the location of business for the purpose of better tax planning, there are some tax incentives provided by law-

1. Free Trade Zone under Sec. 10A provides a deduction to newly established undertakings for which some conditions should be satisfied like- undertaking must begin manufacture/production in Free Trade Zone, the industrial undertaking should not be formed by the splitting up or reconstruction of a business already in existence except those undertakings which are referred under Sec. 33B.
2. Hundred percent export-oriented undertakings under Sec. 10B 
3. Deduction under Sec. 80-IB in respect of profits and gains from certain industrial undertakings like- business of an industrial undertaking, operation of a ship, hotels, industrial research, production of mineral oils, developing and building housing projects, convention theatre, etc.

• Manufactured product under that undertaking

Many incentive Acts are provided by the law, in regard to the nature of the business on which deduction or exemption will be provided, are as follows-

1. Newly established industrial undertakings in Free Trade Zone under Sec. 10A.
2. Hundred percent export-oriented undertakings under Sec. 10B.
3. Venture Capital Companies (VCC) under Sec. 10 (23FB).
4. Infrastructure Capital Companies under Sec. 10 (23G)
5. Tea/Coffee/rubber development account under Sec. 33AB
6. Site restoration fund under Sec. 33ABA
7. Amortization of telecom license fees Sec. 35ABB
8. Deduction in respect of expenditure on specified business under Sec. 35AD
9. Amortisation of preliminary expenses under Sec. 35D
10. Amortisation of expenditure on prospecting of certain minerals under Sec. 35E
11. Deduction under Sec. 36(1)(viii) by a financial corporation and a public company.
12. Special tax provisions under Sections 42, 44BB, 44AD, 44AE, 44AF, 44B, 44BBA, 44BBB, 44D, 115A, 115AB, 115AC, 115AD, 115BBA and 115D.
13. Deduction in respect of profits and gains from industrial undertakings engaged in infrastructure development etc. under Sec. 80-IA
14. Profits and gains from industrial undertakings other than infrastructure development under Sec. 80-IB
15. Profits and gains of undertakings in a certain special categories of states under Sec. 80-IC.
16. Profits and gains from the business of collecting and processing of biodegradable waste under Sec. 80JJA
17. Employment of new workmen under Sec. 80JJAA.

• The legal form of Organisation

One can decide tax liabilities under different organization forms while comparing other factors and tax incentives like how a person can reduce his tax liability by availing tax incentives provided under the law.

Tax Planning With Reference To Financial Management decision

Many tax provisions affect financial management decision, some provisions are discussed here-

• Capital Structure

Capital structure is the amount of debt or equity to fund the operation and finance assets of the company. By Capital structure shareholder’s return can be maximized. This structure is known as debt-to-equity or debt-to-capital ratio. 

Under taxation law, dividend on shares is not deductible, while the interest paid on interest borrowed capital is allowed as deduction. 

• Dividend Policy

A dividend is part of a profit which is distributed among the shareholders of the company. Dividend from an Indian company is not taxable under law but dividend from a foreign company is taxable in the hands of shareholders. As per Sec. 194, no deduction shall be made in the case of a shareholder if- 

1. The dividend is paid by an account payee cheque; 
2. The aggregate amount of such dividend distribution of that financial year does not exceed two thousand five hundred rupees.

• Inter- Corporate Dividend

Deduction on the inter-corporate dividend is given under Sec. 85A, where the total income of an assessee being a company includes any income by way of dividend received by it from an Indian company or a company within India shall be entitled to a deduction from the income tax.

• Bonus Shares 

Tax consideration for equity shareholders and preference shareholders are as follow-

For equity shareholders, at the time of the issue of bonus share, there is no tax liability of the company as well as shareholders. But at the time of liquidation of the company bonus shares in the hands of the company will be treated as Dividend distribution and company has to pay dividend tax but that amount will be exempted in the hands of shareholders. 

In the case of preference shareholders, if the bonus shares issued before June 1, 1997, then there will be no tax liability for the company and for shareholders it will be deemed as dividend, and if bonus shares issued after June 1, 1997, then there will be no tax liability on shareholders and for the company it will be chargeable as dividend tax. At the time of redemption or liquidation, there will be no tax liability on the company and shareholders too. 

Tax Planning and Managerial Decision

Tax planning affects managerial decisions too, like-

• Make or Buy- make or buy decision is based on the costing and non-costing considerations. A consideration which affects the decision is –
  • Utilization of capacity
  • Inadequacy of funds
  • Latest technology
  • The variable cost of manufacturing
  • Dependence upon supplier
  • Labour problemOther factors

Provisions under the law are available for the manufacturer to make the right decision. These sections are 10A, 10B,32, 50, 80-IA and 80-IB. 

• Own or Lease.- if assessee obtains assets on lease then he can claim the lease rental as a deduction, but if he purchases that assets than he can claim depreciation on those assets under section 32.
• Purchase by Instalment v. Hire.- if assets purchased by installment then the deduction can be claimed under section 32. If assets are hired then the deduction can be claimed on hire charges.
• Renewal or Renovation.- before claiming a deduction for renewal, renovation, repair or replace, one should keep in mind whether the deduction for these considerations is available under section 30, 31, or 37(1). If the deduction for revenue expenditure is allowed then tax liability can be reduced.  

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Tax Planning With Reference To Employees Remuneration

In the case of remuneration planning one has to consider that while calculating an employer’s income, remuneration paid to the employees is deductible. If such expenditures are not deductible under the employer’s income then the tax bill of the employer will increase. Tax incentives for deduction of remuneration in the hands of an employer-

1. Revenue expenditure incurred by an assessee who himself carries on scientific research in regard to business shall be deductible under Sec. 35(1).
2. Any premium paid on the health of the employee is allowed as a deduction. But only if that premium paid under the scheme framed under this behalf by General Insurance Corporation of India under Sec. 36(1)(ib).
3. A bonus or commission paid to an employee is deductible under Sec. 36(1)(ii) only if that bonus or commission shall not be payable to an employee as profit or dividend.
4. Employees contribution to staff welfare schemes under Sec. 36(1)(va).
5. If any expenditure incurred by the company for promoting family planning among its employees is allowable as a deduction under Sec.36(1)(ix).

Tax Planning With Reference To Amalgamation of companies

Amalgamation is defined under section 2(1B) of the Act, amalgamation is a merger of two or more companies to form a new company or merger of companies in an existing one. All the Tax liability after merging of companies is on the amalgamated companies. All the properties of amalgamating companies are transferred to the amalgamated company. Some Benefits available to companies after amalgamation are-

• Exemption under section 47(vi) for capital gains of amalgamating companies;
• Exemption under Section 47(vii) in the case of international restructuring;
• Exemption under section 47 (vii) for any transfer by shareholders of a capital asset;
• Section 72A which provide an exemption to amalgamated companies to carry forward and set off of an accumulated loss and unabsorbed depreciation allowance in amalgamation and demerger etc.  

Tax planning for Individuals 

Tax Planning Strategies

Tax planning strategies are a plan to reduce tax liability by availing the advantages of schemes and programs offered by the government to an individual or an organization. The motive of tax planning strategy is to use the schemes for the reduction of tax liability in the right direction and in a lawful manner. As we have discussed, there are many schemes and programs which are offered by the government. Let’s take a look 

• Deduction under Section 80C.- section 80C covers a wide area for a tax deduction which offers a number of schemes and plans where one can invest his money and save it from tax.
• Deduction for HRA.- house rent allowances given under Section 10(13A) where employees are exempted from paying tax who lives in a rented room/apartment.
• Deduction on education loan.- under section 80E one can save his tax, as per this section deduction is allowed on the loan taken by an assessee for his higher education or for the higher education of his relative.
• Rebate for home loan.- one can save his tax on home loan principal repayment or home loan interest payment. Under section 80C assessee can claim for principal repayment and section 24b for home loan interest.
• Planning for Long term capital gain.- under long term capital gain, one can claim for deduction on the sale of long term capital assets. Here, long term capital assets mean by for 3years or more.
• Donation exemptions.- donation exemption can be claimed under section 80G if the assessee has donated any amount for NGOs or for any political party. 

Tax Planning Salary

Before planning tax liabilities to reduce tax limit one should know how much salary is taxable and what allowances are not taxable. Just take a look –

• Basic salary.- A basic salary is the fixed amount that is paid to the employee before adding any bonus or surplus charges or reduction in any investment.
• House Rent Allowance.- house rent allowance is that amount which paid to those employees who live in a rented house or apartment for the employment purpose. House rent allowance is not taxable under income tax but if the employee who gets house rent allowance and live in his own house then that amount will be taxable.
• Leave Travel Allowance.- leave travel allowances are exempted under income tax where it is provided that allowance will be claimed on short distance trips within India. Employees directly cannot claim this exemption.
• Bonus.- bonus is the additional amount given by the employer to his employees. Bonus can be given on some occasion or can be based on the performance of employee whatever it is, will be completely taxable.
• Provident Fund.- provident fund is a scheme started for the employees so they can contribute to this scheme and save money for their future. 12% of the basic salary contributed to the pension and provident fund of the employee.
• Standard Deduction.- standard deduction is that amount which is not taxable and can reduce the tax liability. The employee can claim rs.50,000 as a standard deduction from his taxable income.
• Professional Tax.- this is the tax imposed by the State government on a person. The maximum limit which the state government can levy on a person is rs.2,500 which is not taxable under income tax.

One can take help from these allowances and schemes to reduce his tax liability by reducing his salary. There will be a minimum tax on less salary. 

Tax planning for Salaried Employees

As we studied above, tax planning is a financial arrangement plan by a taxpayer to get the maximum benefit of their capital. Tax planning should not be confused with complete avoidance of tax, in any of the circumstances one cannot avoid his tax liability completely. Tax planning is a way by which an individual can minimize his tax liabilities and invest his capital for more fruitful results.

For a salaried individual, the tax planning approach should be in a proper manner so one can take advantage of Government Schemes. For taking advantage, firstly one should invest in saving schemes from his current year income to reduce tax liability.

And another is to plan some special measures to invest money in the pre-retirement stage for a post-retirement period. So there will be an assurance of proper and adequate flow of capital and one can enjoy his retirement period.

Tax Planning in Income Tax

To decide whether one should invest his salary in a particular scheme or not depends on what is a more suitable option for that person. To invest income in a particular income an assessee should have enough knowledge about schemes and investment under those schemes. As we have sub-categorized the options for tax planning available to the assessee,i.e.

• Investment in government schemes

There are many tax provisions under which government provide benefit to assessees. So different assessee can choose different options as per their suitability. Like – some invest in life insurance corporation, some under pension fund according to their suitability. Now we will discuss government scheme one by one-

In all the government schemes Section 80C is the most tax-saving scheme under which people claim their taxes. Before the Assessment Year 2006-07, deduction under Sec.80C was provided under Sec.88, 88B, and 88C which has been now replaced. There are some schemes under Sec.80 where deduction allowed out of total income.

One can invest in a different category of schemes, like-

Tax-saving scheme.- there are some tax-saving schemes where contribution in those schemes will not be covered under taxable income and entitled to deduction under Sec.80C. These schemes are-

• Life insurance policy
• Contribution to Provident Funds
• Contribution in Life Insurance Corporation or Mutual Funds
• Investment in National Savings Certificate
• Amount invested in Annuity Plans
• The amount deposited in Pension Funds
• Tuition fee  paid

Tax-free return scheme.- in tax-free return schemes, one can invest his capital under the following institutions-

1. Post office.- one can invest in schemes offered by post office like- Post Office Saving Account Schemes and Public Provident Fund Schemes. 
2. Life Insurance Corporation.- an individual can invest in different plans offered by LIC like- Whole Life Plan, Endowment Plans, Money Back Plan, Children Plan, etc.

• Unit Trust of India.- Unit Trust of India governed by the Unit Trust of India Act which was formed to encourage assessee to invest their capital and to avail the benefits of the schemes provided by the government.
• Public Companies and Corporation.- Public companies and corporations provide tax return benefit to an individual assessee under following schemes-

1. Investment in equity shares
2. Investment in bonds.

The return from the investment is totally exempted from Income Tax under Section 10. Investment in these schemes shall not provide tax liabilities but return from these investments shall be entitled to tax benefits.   

• Deduction under other provisions

Number of Deductions provided under Section 80C to 80U of the Act. these deductions are allowed only to some specified assessee. Under these provisions, a deduction is allowed only when payment is made through the taxable income, and the total amount of the deduction shall not exceed the amount of Gross total income. Now, a deduction can be sub-categorized in two parts-

• In respect of payment

Deduction in this category allowed only when there is a payment made by assessee falls under Sec.80C to Sec.80GGC, now we will discuss these provisions one by one for better understanding-

Deductions Under section 80C

This section covers a wider area for the assessee to avail the benefits of all the schemes and provisions. For most people, this is a suitable provision to invest their capital. The deduction limit under this Section is up to Rs. 1,00,000. Sec.80C says Deduction in respect of Life Insurance Premia, deferred annuity, contribution to provident funds, subscription to certain equity shares and debentures, etc. some major Schemes under this Section are-

• Investment under Life Insurance Policy .- any person can contribute to a life insurance policy, where up to 20% deduction is allowed from the Gross total income of the assessee. For eligibility under this Section, one should pay the life insurance premium 

1. On own life;
2. On spouse’s life;
3. On the life of all the dependent children minor or major;
4. On joint life with any member discussed above. 

• Contribution to Provident Funds.- Contribution by an employee to the Public Provident Fund or any other recognized provident fund by the government shall be deductible from his tax liability. 
• Investment in National Saving Certificates.- Capital investment in the National Saving Certificate in the name of his own or his wife or children shall be deductible under Sec.80C. Interest other than investment shall also be deductible under Sec.80C.
• Public Deposit Scheme.- contribution in any such pension fund which is set up by the National Housing Bank governed by Sec.3 of National Housing Bank, 1987. 
• Investment in Annuity Plans.-  the amount paid by an individual under contract for deferred annuity payment on his own life, or spouse’s life or on the life of children or any other member of the Hindu Undivided Family shall be deductible.
• Investment in Mutual Funds or pension funds.- amount paid as contribution in any pension fund scheme set up by mutual funds or Unit Trust of India shall be qualified for deduction under Sec.80C. 
• Home loan Installment.- repayment of the Home loan borrowed by the assessee during the purchase or construction of residential house property then the principal component of EMI qualifies for the deduction under Sec.80C.
• Tuition fee.- tuition fee paid by an individual to any university, college or school situated in India for full-time education of any of his two children shall be eligible for deduction under Sec.80C.   

Deductions Under section 80CCC

Section 80CCC talks about deduction in respect of contribution to certain pension funds. If an assessee paid or deposited any amount to the annuity plan of Life Insurance Corporation or to any other insurer in respect of receiving pension funds shall be eligible for deduction under Sec.80C but that amount should not exceed Rs.1,50,000 in the previous year.

Deductions Under section 80CCD

Deduction in respect of contribution to pension scheme of the Central Government. Where an assessee, being an individual employed by the Central Government or employee in any other case, as may be notified by the Central Government shall be eligible for deduction, but the amount he paid or deposited shall not exceed 10% of his salary in the case of an employee or in any other case shall not exceed 20% of his gross total income.

Deductions Under section 80D

Premium Amount paid by an assessee from his taxable income in respect of the health insurance for his own or his wife or his children health shall be deductible under this Sec. the amount should not exceed Rs.10,000 and Rs.15,000 in the case of a senior citizen. 

Deductions Under section 80GG

An assessee who is not in receipt of House Rent Allowance under Section 10(13A) shall be eligible for deduction in respect of house rent. For deduction under this Section, one should fulfill some conditions like-

1. He shall be lived in a rented house due to his employment;
2. He shall not get House Rent Allowances;
3. He or his wife or his children should not have self-occupied houses in India.

• In respect of receipt 

    These are the following provision under which deduction is qualified in respect of receipt-

• Deductions Under section 80QQB

The deduction is allowed in the case of royalty income earned by the author, either whole of his income or three lakh rupees, whichever is less.

• Deductions Under section 80R

Deduction in respect of remuneration from certain foreign sources in the case of professor, teacher etc. this section does not include remuneration in gross total income where remuneration received by assessee, outside India from any university or any other educational institution established outside India, for rendered his service as a professor, teacher or research worker.

This section provided that no deduction shall be allowed unless the assessee furnishes the certificate in a prescribed form along with the return of income.

• Deductions Under section 80U

A deduction shall be allowed to a permanent physically disabled person. Assessee, whose earning capacity has been reduced because of disablement, then deduction of Rs. 50,000 in a year shall be allowed to him or in the case of severe disability Rs.75,000 in a year. Provided that assessee should provide a certificate from the medical authority in a prescribed form along with the return of income.

Other than these deduction provisions some other provisions under the Act are-

1. Deduction in respect of certain donations for Scientific Research or rural development (Sec.80GGA);
2. Deduction in respect of contribution given by any person to political parties(Sec.80GGC);
3. Deduction in respect of loan taken for higher education(Sec.80E);
4. Deduction in respect of loan taken for residential house property(Sec.80EE);
5. Deduction in respect of interest on deposits in a savings account (Sec.80TTA);

Tax Planning Capital Gains

Capital gain is a profit arises from the sale of capital assets. Capital gain can be a long-term capital gain and short term capital gain. The capital gain exemption is provided under section 54 where capital gains tax rates divide by 0%, 15%, and 20%. In the 2019 amendment by the Finance Act under Section 54 where exemption provided for house property it is included that where the amount of capital gain does not exceed 2 crore rupees then assessee by his choice can purchase or construed two residential houses in India.

To avail, this benefit one needs to fulfill the following conditions provided under the Act-

1. The time period of purchasing of new property shall be either before 1 year of selling the property or 2 years after selling that property.
2. That capital gain should be invested in the construction of property which is necessarily completed within the 3 years of selling.

Other exemptions provided under taxation law are-

• • Section 54F provides Exemption for capital assets other than a house property. This section talks about long term capital gain.
  • Section 54EC in respect of capital gain not to be charged on investment in certain bonds, where the capital gain arises from the transfer of long term capital assets.
  • Section 54B provides that capital gain on transfer of land used for agricultural purposes not to be charged in certain cases.

Tax Planning Calculator

The tax planning calculator is an online tax calculating device so one can calculate his gross total income and the taxable amount and save his tax with the help of that calculator. One can access that calculator from anywhere, anytime. Generally, four steps include in tax saving calculator:-

1. In the first step, one has to give his basic details about his age and financial year for which he wants to calculate his tax.
2. Further, he has to provide his income details like how much income is taxable, interest on the home loan, etc.
3. In next step details in regards to deduction under different schemes shall be provided;
4. After calculating all the above details the tax saving calculator calculates the income that how much tax is payable.

Let’s understand this with an example-

An individual let’s say, Mr. S, the age of 35 years has to calculate his income of the financial year 2019-20. 

Particulars- 

His taxable income is rs.5,00,000 ;

Interest paid on a home loan is 12%;

Rental income received – rs. 10,000

Income from interest – rs. 50,000

Interest paid on loan- 8%

Deduction- 

Basic deduction – rs.30,000

Medical insurance – rs.20,000

Interest on educational loan- 8%

Interest from deposits – 8%

Donations to charity – rs. 3,000

After calculating the above details, the tax payable by Mr. S is rs.13,832. If we made some change in income details, let’s say income from interest is rs.10,000, then no amount will be taxable.   

Schemes Under Tax Planning

To save the capital and minimize the tax liability government provides numbers of the scheme under Income Tax, so one can make the right decision to invest his money with a low-cost investment and maximum benefit. There are some major schemes where an individual can invest his money for availing its maximum benefit.

• Life Insurance Policy

One can claim the exemption for insurance policy under Section 80C of the Act. The interest rate of this plan is 0-6%. No limit of minimum and maximum investment is fixed. Under this policy, one has to pay the premium on his own life or spouse’s life or on children’s lives or any member in the case of HUF.

• Health Insurance

Under Section 80D of the Act, one can claim an exemption for health insurance, where the assessee as an individual does not pay insurance on the health of the assessee or his family members or his parents on account of preventive health check-up to the Central government which exceeds the sum of twenty-five thousand rupees.

And in the case of medical expenditure incurred on the health of assessee or his family members or his parents, the amount does not exceed fifty thousand rupees. 

• Public Provident Fund

One can invest his income under the Public Provident Fund and can claim an exemption under section 80C of the Act. The interest rate under PPF is 8% per annum, where minimum investment is Rs.500 and the maximum investment is Rs.1.5 lakh.

• Equity Linked Saving Schemes (ELSS)

The major plans for saving tax liabilities are mentioned under section 80C. ELSS is one of the two equity mutual funds where its maximum investment limit is Rs. 1.5lakh per annum. One has to invest his capital for at least 3 years. Another equity mutual fund scheme is a Unit Linked Insurance plan.  

• National Pension Schemes

The national pension scheme is an employer’s contribution towards employees NPS from his basic salary, which is up to 10% and deductible from tax liability. No maximum limit is fixed for investment and it is a low-cost investment scheme.

• Senior Citizen Saving Schemes

Senior Citizen Saving Schemes is for those individuals who are of age 60 or above and in the case of age between 55-60, a person should be retired under superannuation or VRS rules. The interest rate of the scheme is 8.7% and the minimum investment amount is rs.1000 and the maximum limit is rs.15 lakh. The person who is a non-resident Indian or person of the Indian origin or member of the Hindu undivided family shall not be entitled to open his account under this scheme.     

• National Saving Certificates

National Saving Certificate is an investment saving scheme offered by the government to every person who wants to secure his money. Assessee can invest by his own name or spouse’s name or on his children’s name or any member of the Hindu undivided family. The interest rate is 8% and this is a low-risk investment scheme, up to Rs.1.5lakh, which can be invested for a tax deduction under section 80C.

Tax Planning for Partnership Firm

A partnership firm is a business consists of two or more people who have a common goal and invest their money and assets for the accomplishment of that goal and share equal profit and liabilities.

Tax planning for a partnership firm is the most important issue for each and every partner. The primary focus to avoid tax levied by the government is to make proper tax planning. To maintain the growth of the business firm owners has to do arrangements to avail the benefits.

In a partnership firm, income tax is levied on all partners, so all the record and document of their income attached with partnership tax return form. Profit arises from sales of any assets that are taxable too.  

There are some exemptions or benefits provided in regards to the partnership firm, these are-

• Section 40(b) talks about that amount which is not deductible in the case of

1. Any payment of salary, bonus, commission or remuneration to any partner who is not a working partner;
2. Any payment of remuneration to any partner who is a working partner but not authorized by the terms of partnership firm;

iii. Any payment of remuneration to any partner who is a working partner and authorized by the terms of partnership firm but the payment is for such period which is not authorized in any earlier partnership deed;

1. Any payment of interest to any partner who is authorized by the terms of partnership deed and relates to any period falling after the date of such partnership deed for which amount calculated exceed by the rate of 12% simple interest per annum;
2. Any remuneration to any partner who is a working partner and authorized by the terms of the partnership deed and relates to any period falling after the date of such partnership deed so far as the amount of payment to all the partners during the previous year exceeds the aggregate amount.

• Section 10(38) provides that any income shall not be included in total income if that if that income arises from the transfer of long term capital asset, being an equity share in a company or a unit of an equity oriented or a unit of a business trust where further it is provided that  income by the transfer of long-term capital gain shall be taken in account of computing book profit and income tax payable under Section 115JB.
• Deduction for Donation under Section 80G we have studied that no amount shall be included in total income if it is donated as a charity to any NGO or to any political party or to any charitable institution within India. No deduction shall be allowed if the amount exceeds rs. 2000 unless it is payable by any mode other than cash.
• Section 44AD provides exemption on presumptive taxation for any business other than business related to plying, hiring or leasing goods carriages referred under section 44E or any business whose total turnover or gross receipts in the previous year does not exceed Rs. 2 crores.
• Section 54E provides that capital gain not to be charged if the cost of long term specified assets is not less than capital gain arising from the transfer of original asset the whole of such capital shall not be chargeable under Section 45.

If the cost of long term specified assets is less than capital gain arising from the transfer of original asset, so much of the capital gain as bears to the whole of capital gain the same proportion as the cost of acquisition of the long-term specified asset bear to the whole of capital gain, shall not be charged under section 45. 

Zero Tax Planning

Zero tax planning is the way to reduce tax liability as much that the payable amount of tax will be zero. As we have studied all the provisions of the taxation law which provides deduction from tax liability. By planning and investment in the right schemes and programs, one can plan zero tax. There are many schemes like one can invest his money in mutual funds or claim deduction under Sec.80C up to 1.5lakh rupees and many more.   

Conclusion 

As we have discussed many tax incentives under the provision of law which focus and help in the reduction of tax liabilities. An individual or a corporate, who are taxable under the present tax regime can avail the benefits that arise out of these incentives. The income tax regime in India has evolved over time and has made it easier to plan and save their capital accordingly. It is suggested that one should avail of these benefits within the framework of the law.

The post Tax Planning – Everything You Need to Know appeared first on iPleaders.

This article is written by Neha Gururani, a student of Guru Gobind Singh Indraprastha University, New Delhi. In this article, she has discussed the provisions relating to the offences against women under the Indian Penal Code, 1860 with some landmark case laws.

Introduction

In the present scenario, the violence and the increasing crimes against women is witnessed by everyone across the world in some or the other manner. It indicates the enormity and pensiveness of the monstrosity perpetrated against women in recent years. The global crusade for the decimation of violence against women is a proof to this fact. The changes in the living standards, lifestyle, imbalance in the economic growth, changes in social ethos and meagre concern for the moral values contribute to a vicious outlook towards women due to which there is multiplication in crimes against women. Moreover, such incidents are a matter of grave concern and its structure is absolutely necessary so that the women of India could live with respect, honour, dignity, liberty and peace in an atmosphere free from atrocities, denigration and heinous crimes.

There are many legal provisions which punish the culprits committing offences against women. The Indian Penal Code though, provides provisions for women as a victim of many crimes such as murder, robbery, theft, etc. but there are certain crimes which are diametrically characterised against the women known as ‘Offences Against Women’. With the need of the hour, many new socio-economic offences have been enacted accompanied by various amendments in the existing laws with an objective to combat these crimes effectually. 

Classification of Laws related to Crime against Women

The laws associated with the crime against women may be classified into following two categories: Crimes against Women under the Special and Local Laws (SLL)

The crimes against women provided under the Special and Local Laws aim to obliterate the immoral and sinful practices and exploitation of women in the society. These laws are periodically reviewed and amended in order to bring off promptness with arising needs. Following are some acts comprising of special provisions to protect women and their interests-

• The Immoral Traffic (Prevention) Act, 1956
• The Dowry (Prohibition) Act, 1961
• The Child Marriage Restraint Act, 1929
• The Indecent Representation of Women (Prohibition) Act, 1986
• The Commission of Sati (Prevention) Act, 1987
• Protection of Women from Domestic Violence Act, 2005
• The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

Crimes against Women under the Indian Penal Code, 1860 (IPC)

The Indian Penal Code, 1860,  lays down the provisions to penalise the culprit for the heinous offences against women. Various sections under IPC specifically deals with such crimes. 

1. Acid Attack (Sections 326A and 326B)
2. Rape (Sections 375, 376, 376A, 376B, 376C, 376D and 376E) 
3. Attempt to commit rape (Section 376/511)
4. Kidnapping and abduction for different purposes (Sections 363–373)
5. Murder, Dowry death, Abetment of Suicide, etc. (Sections 302, 304B and 306)
6. Cruelty by husband or his relatives (Section 498A)
7. Outraging the modesty of women (Section 354)
8. Sexual harassment (Section 354A)
9. Assault on women with intent to disrobe a woman (Section 354B)  
10. Voyeurism (Section 354C)
11. Stalking (Section 354D)
12. Importation of girls upto 21 years of age (Section 366B)
13. Word, gesture or act intended to insult the modesty of a woman (Section 509)

This article further scrutinizes and expounds some of these odious and punishable offences as mentioned under the Indian Penal Code, 1860.

Sexual Offences against Women

The Indian Penal Code mentions sexual offences against women under a separate head which encompasses the following offences with their respective sections-

Rape [Section 375 & 376]

Section 375, IPC defines rape. In simple terms, the offence of rape is the ravishment of a woman, without her consent, by force, fraud or fear. In other words, it is the carnal knowledge (penetration of any of the slightest degree of the male organ of reproduction) of any woman by force against her will. It is an obnoxious act of highest degree which violates the right to privacy and sanctity of a female. Apart from being a dehumanizing and perverted act, it is also an unlawful interference in the personal life of a woman which is an intense blow on the honor, dignity, reputation and self-esteem of a woman. This outrageous crime not only causes physical injury to the victim but also humiliates, degrades and leaves a scar on the most precious jewel of a woman i. e. her character and dignity.

Essential Ingredients of Rape

Section 375 has the following two essential ingredient-

• Actus Reus: There must be sexual intercourse, as understood in terms of the provisions of Section 375 (a) to (d), with a woman by a man.

• Mens Rea: The sexual intercourse must be under any of the seven circumstances as given under Section 375.

Punishment for Rape (Section 376)

Section 376 provides punishment for committing the heinous crime of rape. This section is divided into two sub-sections.

Section 376(1) provides a minimum sentence of seven years of imprisonment that may extend to life imprisonment and fine.

Section 376(2) provides punishment not less than ten years of imprisonment but may extend to imprisonment for life or death or fine. 

Gang Rape (Section 376D)

Section 376D lays down the punishment for gang rape. Where a woman is raped by more than one person acting in futhereance of a common intention, each of them shall be liable for the offence of rape and shall be ounished with rigourous imprisonment for not less than twenty years which may extend to lifetime imprisonment and fine.

Relevant Case Laws

Case: Priya Patel v. State of M.P.[1]

Facts: The prosecutrix was returning home after her sports meet and the husband of the appellant met her at the railway station and told her that her father has sent him to pick her. He took her to his house and raped. During the commission of rape, appellant (the wife) entered the room and prosecutrix asked for the help but instead of savinf her, the appellant slapped her and closed tthe door and left the place of the incident. The accused husband was charged under Section 376, IPC whereas the appellant wife was charged for commission of offence punishable under Section 376(2)(g), IPC. 

The appellant wife challenged the legality of the charge framed against her under Section 376(2)(g), IPC on the ground that since a woman cannot commit rape and so cannot be convicted for commission of ‘gang rape’.

Judgment: The court held that a woman cannot said to have an intention to commit rape. Therefore, the appellant cannot be prosecuted for alleged commission of an offence punishable under Section 376(2)(g).

Case: Tukaram v. State of Maharashtra[2]

Facts:  Mathura, a Harijan girl developed intimacy with a boy, Ashoka. Her brother lodged a report in the Police Station that Mathura had been kidnapped by Ashok. After sometime, Mathura was brought to the Police Station and statement was recorded. Since, it was late at night, so there were two constables (appellants) present at the police station at the time. The appellants asked Mathura to stay at the police station and asked her companions to wait outside. One of the appellants took her into the washroom and light a torch focusing on her private parts and thereafter dragged her and raped in spite of her protests. Then, the other appellant came and wanted to rape her but couldn’t as he was highly toxicated. Since, all the lights of the police station was off and nothing was visible, the companions of Mathura called her name and shortly afterwards, Mathura emerged out of the police station and alleged that one of the constables had raped her. The crowd became aggressive and so, her FIR was lodged on behalf of her statement. Doctor’s report stated that there was no injury on the body of Mathura. Her hymen revealed old ruptures. The appellants contended that since there was no direct evidence about the nature of the consent of the girl to the alleged act of sexual intercourse, it can be inferred from the available circumstances that she did this with her passive submission.

Judgment: The court held that no marks of injury was found on the body of the girl after the incident and this indicates that the intecourse was a peaceful affair and the story made by the girl was fictitious. Therefore, no offence is brought against the appellants. 

This case is popularly known as ‘Mathura Rape Case’.

After this case, it was interpreted by the Apex Court in many cases that  to constitute the offence of rape, it is not important that there must be some injury on the body of the victim.

Outraging the Modesty of Women [Section 354]

Section 354, IPC deals with the offence of molestation i.e. assault to woman with intent to outrage her modesty. This section aims to protect women against any sort of indecent or filthy behaviour by others which is derogatory to her modesty. This offence is not just against the individual but also against the society and public morality. Therefore, if any person uses criminal fore upon a woman with an intention to outrage the modesty of a woman, he is deemed to be punished with an imprisonment of not less than one year which may extend upto five years with fine.

It is not specifically defined under IPC that what constitutes an outrage to woman’s modesty. However, the court has interpreted it in various cases. According to the Supreme Court, modesty is an attribute associated with female human beings as a class. Modesty is said to be outraged by such an act of offender which shocks and recognizes as an insult to female decency and dignity. 

For example, slapping a woman on her butt, asking her for sexual favours, disrobing her etc. 

Essential Ingredients of Section 354

The following are the essential of the offence under Section 354, IPC-

1. The person who has been a victim of assault must be a woman
2. The accused must have used criminal force on her
3. An intention to outrage the modesty of a woman must be there.

Relevant case laws

Case: Rupan Deol Bajaj v. K.P.S. Gill[3]

Facts: The petitioner was an IAS Officer and accused was DGP, Punjab. The petitioner was invited to a party where the accused was also present. The accused asked the petitioner to come and sit next to him and when she went to sit, he pulled the chair closer to him and the petitioner was surprised by this act and she pulled her chair back to original place and again he pulled the chair closed to him. The petitioner asked him to leave but he again asked petitioner to accompany him in a commanding voice. She got apprehended and frightened and immediately pulled her chair back and turned to get out. At this point, the accused slapped the butt of the petitioner in the presence of all the guests which was very embarrassing for her. She filed an FIR against him. 

Judgment: The High Court quashed the FIR and held that the act was covered under Section 95, IPC.

The Supreme Court disagreed with the High Court and held that quashing FIR is illegal and Section 95, IPC is not at all applicable. The court further added that when an offence relates to the modesty of  women, it could not be trivial under any circumstance. Therefore, the accused was held liable under Section 354, IPC.

Case: Raju Pandurang Mahale v. State of Maharashtra[4]

Facts: The accused brought the victim to the house of co-accused on a false pretext. They confined her in the house and brought liquor which she was forced to drink. The victim was then disrobed and her nude photographs were taken.

Judgment: The Supreme Court held that the accused was guilty under Section 354, IPC as their acts were affront on the normal sense of femanine decency.

Case: State of Punjab v. Major Singh[5]

Facts: In this case, the accused had caused injuries to the vagina of a seven and a half months old child by fingering.

Judgment: It was held that the accused was liable for outraging the modesty of the child under Section 354, IPC. The court further added that the essence of a woman’s modesty is her sex. Young-old, intelligent or imbecile, awake or sleeping; women possesses a modesty capable of being outraged. 

Insulting the Modesty of Women [Section 509]

An act which is done intending to insult the modesty of woman which may not necessarily involve any physical force is brought under the shade of this provision through Section 509. This section  intends to deter any kind of aggression into a woman’s modesty whether by any word, gesture or act or by intruding upon the privacy of such woman. This section is also referred as the ‘Eve Teasing Section’. 

Any person who commits an offence under Section 509 shall be punished with simple imprisonment for a term which may extend to three years with fine.

Essential Ingredients 

This section requires-

1. An intention to insult the modesty of a woman;
2. The insult must be caused either by intruding upon the privacy of a woman; or by making any gesture or sound, uttering any word or exhibiting any object.

New Offences relating to Women

The Criminal Law (Amendment) Act, 2013 added many new sections in the IPC, keeping in view the various new forms of offensive activities against the safety and dignity of women. Some are discussed below-

Disrobing a Woman (Stripping) [Section 354B]

Section 354B penalises the offence of assaulting or using criminal force to a woman or abetting any such act with an intention to disrobe or compel her to be naked, with a punishment of not less than three years which may extend to seven years with a fine. It is a gender specific offence i.e. only a man can be punished under this section.

Ingredients 

1. The accused must be man.
2. Use of criminal force or assault or abetment of any such act must be there.
3. There must be an intention to disrobe a woman or compel her to be naked.

Voyeurism [Section 354C]

This offence came into existence after Nirbhaya Rape Case, 2012. It is mentioned under Section 354C, IPC. The word ‘voyeurism’ means appeasement derived from observing the genital or sexual acts of others usually ssecretly. This provision is divided in two different parts. Firstly, when a person watches or captures image of a woman engaging in some private  act and secondly, when the person disseminate or spread such image. 

The first offence is punishable with imprisonment of not less than one year which may extend upto three years with fine. The second offence is punishable with imprisonment of not less than three years which may extend upto seven years with fine.  

Ingredients

1. The accused must be a male.
2. He must watch or capture the image.
3. The woman whose images are captured must be engaged in some private act.
4. The circumstances must be such that she has the expectations of not being. observed by the perpetrator; or
5. The accused disseminates that image.

Stalking [Section 354D]

Section 354D, IPC talks about The term ‘stalking’ which generally means the act of following or trying to contact despite disinterest of woman. This section contains two offences. Firstly, where a man follows or contacts or attempts to contact a woman repeatedly despite her clear indication of disinterest and secondly, where a man monitors the use by a woman of the internet, email, or any other form of electronic communication. 

For the first conviction, the punishment prescribed is imprisonment for a term which may extend to three years with fine. The punishment for second conviction may extend up to five years of imprisonment with fine.

Ingredients:

1. The accused must be a man and victim must be a woman.
2. Follow or contact a woman or attempt to contact; or
3. Monitors the use by the woman of the internet, email or any other electronic communication.
4. Despite disinterest of woman.

What does not amount Stalking?

Section 354D has a proviso attached to it which carves out an exception to this offence. If a part of responsibility is imposed on a person by the State to prevent and detect any crime and such acts must be pursued by any law and in the particular circumstances such conduct of the person must be reasonable and justified then, it will not amount to stalking.

Acid Attack [Section 326A & 326B]

The Criminal Law (Amendment) Act, 2013 incorporated Section 326A and 326B with an intend to make specific provision for punishment in the case of acid attack. 

Section 326A focuses on voluntarily causing grievous hurt by using acid. In the view of this section, whosoever causes permanent or partial damage or burns, disfigures or disables any part of the body of a person or causes grievous hurt by throwing or administering acid with an intention to cause such injury or hurt will be punished with imprisonment of at least ten years which may extend to life imprisonment with fine.

Section 326B has more legislative focus on the act of throwing or attempting to throw acid with the intention of causing grievous hurt. The punishment under this section is imprisonment of not less than five years with fine which may extend upto seven years.

Essential Ingredients of Acid Attack

The following are the requisites of an acid attack-

1. permanent/partial damage/deformity/burn/idfigure/disable any part of the body of any person; or
2. Grievous hurt by throwing acid; or
3. By using any other means;
4. There must be an intention to cause injury or hurt. 

Sexual Harassment [Section 354A]

This new provision was originated in a judgment of the Supreme Court dealing woth the issue of sexual harassment at workplace. Through the Criminal Law (Amendment) Act, 2013, Section 354A was inserted in the IPC which defines the offence of ‘sexual harassment’ and set down punishment for it.

According to Section 354A, a person shall be guilty of the offence of sexual harassment against a woman in the following circumstances-

1. If he makes physical contact and advance unwelcome and explicit sexual act;
2. Demands or requests for sexual favours;
3. Shows pornography against the will of a woman;
4. Make sexually colored remarks.

The punishment for the offences specified under Section 354A (1) (i) to (iii) is the rigorous imprisonment for a term which may extend to three years or with fine or both and in the case of sub clause (iv), it is imprisonment for a term which may extend to one year or with fine or both.

In 2013, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act was enacted to provide protection to women against sexual harassemnt at workplace and for the prevention and redressal of complaints regarding the matter of sexual harassment or any such incident thereto. 

Offences related to Marriage

Cruelty by Husband or his Relatives [Section 498A]

A separate chapter of IPC deals with the issues of cruelty by a husband or his relatives under Section 498A, IPC. the objective behind the introduction of this provision was to punish the husband and his relatives who torture, ill-treat and harass a woman with a view to force her or any other person related to het to meet any unlawful demands. 

This section has given a new dimension to the concept of cruelty which is the essence of this section, for the purpose of matrimonial relief. Not every type of cruelty will attract Section 498A. It has been mentioned under the section that what kind of cruelty is included hereby. 

The punishment for this offence is imprisonment for a term which may extend to three years with fine.

Essential Ingredients

To constitute an offence under Section 498A, the following are the necessary conditions-

1. The victim must be a married woman/widow.
2. She has been subjected to cruelty by her husband or his relatives. 
3. Such cruelty consisted of either-

• Harassment of a woman with a view to coerce her meeting a demand of dowry; or
• A wilful conduct by the husband or his relatives of such a nature as is likely to lead the lady to commit suicide or to cause grave injury to her life, limb or health 

1. That such injury inflicted either physically or mentally.

Dowry Death [Section 304B]

Dowry deaths and bride burning are sinful act which are still prevailing in the Indian society. It is a symptom of a special social illness and are unfortunate developments of our society. For this serious matter, the special provision was inserted under IPC through Section 304B which deals with dowry deaths. 

Section 304B (1) defines dowry death whereas clause (2) lays down its punishment which is not less than seven years and may extend to life imprisonment.

Essential Ingredients of Dowry Death

The following ingredients of the offence need to be established-

1. The death of a woman must be caused by burns or bodily injury or otherwise than under normal circumstances.
2. Such death must occur within the period of seven years of marriage.
3. The woman must have been subjected to cruelty by her husband or any other relative of her husband.
4. Such cruelty must be in connection with demand of dowry.
5. Such cruelty must be shown out soon before her death.

Conclusion

Notwithstanding the number of laws to protect and safeguard the rights and interest of the women, the rate of crime against women and victimization is mushrooming day by day. It is well said that it takes two to tango. It implies that only laws are not responsible to regulate and control the augmentation of the crimes against women in our society. The suppression of evil eyes on women and inculcation of social ethics, morals and values, respect and honor in every human being towards women is the need of the hour and is a supplement factor that can equally contribute in reducing the number of crimes against women. However, there is an exigency of more strict and stringent laws so that any person intending to commit such crimes couldn’t screw up the courage to act in furtherance of his intention. 

References 

1. 2006(6) SCC 263
2. AIR 1979 SC 185
3. 2005(6) SCC 161
4. 2004(2) SCR 287
5. AIR 1967 SC 63
6. The Indian Penal Code, 1860 (Bare Act)

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This article is written by Yash Jain, a third-year student of Institute of Law, Nirma University. The article explores the status of “minority classes” from the ancient period to the current era. The article further provides a detailed account of constitutional provisions and cases for the protection of interest of minorities in the country. 

Minority rights have gained greater visibility and relevance all over the world. India being a multi-ethnic, multi-religious, multi-linguistic and multi-cultural society is also not an exception to it. India does not promote or encourage any particular religion and ethnicity. Brotherhood is the essence of its soul and hence India is called a secular country. Diversity is the heart of India and it is in this context that minority rights have added significance to the post-independence era. 

During the making of the Constitution, it was upon the constitutional framers that whatever wrong has been done to the people in the past should be rectified through the provisions of the new Constitution. The Constitution should provide safeguards for the minorities and special provisions for the upliftment of the minorities. The preservation of discrimination seeks to secure that everyone as individuals are treated on an equal basis and this is what the Constitutional framers aimed at. 

The Constitution has given recognition to a number of languages in the Eighth Schedule and there existed five religious groups which have been given the statutory status of National Minorities to the communities namely, Muslims, Sikhs, Buddhists, Parsees and Jains. Today, minority rights have introduced two new magnitudes into democracy. First, they have made the community a legitimate subject of political dialogue and second, they have placed the issue of inter-group equality on the agenda. 

The Constitution has to provide and promote safeguards so that the inter-group equality in the multi-ethnic society of India should come to an equal footing. The framers of the Constitution bestowed considerable thought and attention upon the minority problems in all its facets and provided constitutional and statutory safeguards. Yet the issue has invaded questions till today. The constitution framers took all steps and the provisions have been laid down in the Constitution of India still there are certain questions which have created a struggle between the majority and minority which still exists and even needs an answer.

Some fundamental questions that need to be pondered upon are: 

• What status has the polity granted to its minorities?
• What are the problems faced by the minorities especially in the context of inclusion and exclusion in stake building in post-colonial India?
• What are the provisions granted to minorities?
• If there are provisions made for the minorities whether they have been implemented properly?
• What is the role of minorities in politics, socio-economic development?
• What is the extent of prejudice and discrimination faced by them even today?

In order to answer and compensate the minorities for the wrongs done to them in the past, compensate the members of the discriminated group that are placed at a disadvantaged position Article 15(1) of the Constitution specifically debars the State from discriminating against any citizen of India on grounds only of religion, race, caste, sex, place of birth or any of them. 

Article 15 of the Constitution provides that “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” This means a very strict and stringent provision has been laid down in the Constitution of India to safeguard and protect the minority rights. 

Defining Minority 

Minority includes only those groups in the population which possess and wish to preserve ethnic, religious or linguistic traditions or characteristics different from those of the rest of the population. 

Sociologist Louis Wirth defined a minority as “a group of people who, because of their physical or cultural characteristics, are singled out from the others in the society in which they live for differential and unequal treatment, and who therefore regard themselves as objects of collective discrimination.”  

According to Francesco Capotorti, UN Special Rapporteur in his report laid down what constitutes a minority:

“A group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members being nationals of the State possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language.”

Conceptualization of Schedule Caste and Backward Classes

The earliest reference to the caste system is found in the Rig Veda in which it is mentioned that there exist four castes which originated from Brahma, the supreme being. It was believed that the Brahmans came from the mouth, Kshatriyas from the arms, Vaishyas from the thighs and Shudras from his feet. Brahmans were considered as the instructors of mankind, Kshatriyas were the warrior class, Vaishyas and Shudras were treated as the agriculturists and servants respectively. 

From the time of Rig Veda, Shudras which in the present circumstances are called Schedule Class and Backward Classes, were not treated equally and were treated with inhumanity. The term “Schedule Class” was adopted for the first time in the year 1985, when the lowest ranking Hindu castes were enlisted in the schedule annexed to the Government of India Act for the purpose of statutory safeguards and other benefits that are provided to them. 

The Britishers played a dominant role in the awakening of India towards the plight of Schedule Castes. They ushered the principle of complete equality and justice irrespective of race, colour, caste, creed, religion, etc. and the same has been incorporated in Article 15(1) of the Constitution by the constitutional framers. Subsequently, after the independence of India with the coming of the Constitution, efforts were made to uplift the status of minorities in the country. 

The Constituent Assembly was very concerned about the issue of protection of minorities and other weaker sections of the country. The committee deliberated various matters related to security, preservation and position of women in the society into two sub-committees i.e. the fundamental right sub-committee and the minority sub-committee. Among the two, the minority sub-committee was primarily formed to look after the matters of minorities. 

Criteria for Identifying Backward Classes

The Central and State Governments can identify the Backward Classes based on the criteria recommended by Commission or Committee constituted under Article 340 of the Constitution of India.

Article 340 of the Constitution – Appointment of a Commission to investigate the conditions of backward classes

The President may, by order appoint a Commission consisting of such persons as he thinks fit to investigate the conditions of socially and educationally backward classes within the territory of India and the difficulties under which they labour and to make recommendations as to the steps that should be taken by the Union or any State to remove such difficulties and to improve their condition and as to the grants that should be made for the purpose by the Union or any State the conditions subject to which such grants should be made, and the order appointing such Commission shall define the procedure to be followed by the Commission.

The Kalelkar Commission (1955) and the Mandal Commission (1980) were accordingly constituted to look after the conditions of the Backward Classes in the country. No fixed criteria for identification of “Other Backward Classes” was provided by the Kalelkar Commission. Whereas, the Mandal Commission held that “socially and educationally backwards” are not necessarily “economically backward classes”. The Commission found that class backwardness was a phenomenon of low caste, hence, the criteria for deciding backwardness of a class has been fixed as follows: 

• Low social position in the traditional caste hierarchy of the Hindu Society. 
• Lack of general education opportunities for the major section of a backward class or community. 
• Inadequate or no opportunities in the matters of public service.
• Inadequate representation in trade, commerce and industry. 

Specific provisions are laid down in the Indian Constitution for protection of Schedule Caste and Backward Classes. Recognising the special needs for Scheduled Caste and Backward Classes, the Constitution of India not only guarantees them equality before the law under Article 14 but also enjoys the state to make special provisions in favour of Scheduled Caste, Scheduled Tribes and Backward Classes for their upliftment in the society under Article 15(4). It also empowers the State to make provisions for reservations in appointments and promotions in favour of any backward classes under Article 16(4). In the Constitution, the provisions guaranteeing the protection of Schedule Caste and Backward Classes can be studied under 3 heads i.e. 

1. Protection of Social Interest 
2. Protection of Economic Interest
3. Protection of Political Interest

Protection of Social Interest

The protection of the social interest of the minorities is laid down under Article 14 which talks about equality before the law. It means that no one should be discriminated on the basis of caste, colour, sex, creed etc. further, Article 15(4) talks about the protection of social interest by laying down that special provisions for the advancement of any socially and educationally backward classes including SCs and STs should be made. Article 16 protects the interest of minorities by granting abolition of untouchability and its protection in any form. Article 30 administers All minorities, whether based on religion or language, to have the right to establish and administer educational institutions of their choice. Article 341 and Article 342 also lays down various provisions for minorities to protect their social interest.

Protection of Economic Interest

Protection of Economic Interest has been laid in Article 46 of the Constitution which states that the State shall promote with special care, the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. Special Financial Assistance Fund is charged from the Consolidated Fund of India each year as grant-in-aid for promoting the welfare of STs and the development of Scheduled Areas [Article 275(1)]. Article 335 laid down provisions for the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State. 

Protection of Political Interest

A number of Constitutional Provisions exist for the protection and promotion of the interests of the socially disadvantageous groups. Article 244 and 329 govern the administration of the Scheduled Areas and Scheduled Tribes in any area. Article 330 and 332 provides for reservation of seats for SCs and STs in the House of People and Legislative Assemblies of the States. 

Role of Indian Judiciary

The Indian Judiciary has played a pivotal role in the protection and promotion of minority rights through a series of landmark judgments. The Indian Judiciary has safeguarded the rights of 49% of people who are in minority and who are in a disadvantageous position.

State of Madras v. Champakam Dorairajan [1]

This case is considered as a milestone judgement for the protection and promotion of minorities. 

Facts of the Case 

The case was regarding the admission of students to the Engineering and Medical College of the State. The province of Madras has issued an order (known as Communal G.O.) ordering that seats should be filled in the selection committee strictly on the following basis i.e. out of every 14 seats, 6 were to be allowed to Non-Brahmins (Hindus), 2 to Backward Hindus, 2 to Brahmins, 2 to Harijans, 1 to Anglo Indians and Indian Christians and 1 to Muslims. 

Ratio of the Judgement  

The court held that Communal G.O violated the fundamental rights guaranteed to the citizens of India by Article 20(2) of the Constitution, namely that “no citizen shall be denied admission to any educational institution maintained by the state or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them and was therefore void under Article 13 of the Constitution. 

The Directive Principles of State Policy laid down in Part IV of the Constitution cannot be in any way override or abridge the fundamental rights guaranteed by Part III. On the other hand, they have to conform to and run as subsidiary to the fundamental rights laid down in Part III. 

Jagwant Kaur v. State of Bombay [2]

Facts of the Case

In this case, an order of the collector of Poona under Section 5 of the Bombay Land Requisition Act for requisitioning some land in Poona for the establishment of a Harijan Camp was challenged as a violation of Article 15(1). The basis of the challenge was that a colony intended for the benefit only for the Harijans was discriminatory under the above Constitutional provision. 

Ratio of the Judgement

It was held that Article 46 of the Constitution could not override a fundamental right. Consequently, the order was declared void.  

1st Amendment of the Indian Constitution

The decision of the 1st Amendment had not come into effect until the time of the case Champakam Dorairajan and Jagwant Kumar. After the amendment, it was possible for the state to establish a Harijan colony to advance the interests of the backward classes. But till the amendment was not enacted as Article 15 stood, it was not competent for the state to discriminate in favour of any caste or community. Thus, these two decisions played a massive role which led to an amendment in Article 15. 

The 1st Amendment incorporated Clause IV in Article 15 that empowers the State to make special provisions for the advancement of any socially educationally backward classes of citizens or for the Scheduled Caste and Scheduled Tribes despite having Article 15(1) and Clause 2 of Article 29. 

The object of the 1st constitutional amendment was to bring Article 15 and 29 in line with Article 16(4) which empowers explicitly the State to make special provisions for the backward classes in matters of public employment. The addition of Clause IV in Article 15 opened doors for several petitions before the court and the court has waived several petitions by interpreting Article 15 Clause IV.  

Balaji v. State of Mysore [3]

It was held that the reservation could not be more than 50%. The classification of backward and more backward is invalid and caste cannot be the only criteria for a reservation because Article 15(4) talks about class and class is not synonymous with caste. So, other factors such as poverty should also be considered. 

Devadasan v. Union of India [4]

The Supreme Court held that the “Carry Forward Rule” is unconstitutional. As per the carry forward rule posts that could be filled due to lack of candidates in backward classes would be filled by regular candidates but the same number of additional posts would be reserved in the next year. This caused the amount of reservation to go above 50%. Supreme Court held that the power of Article 16(4) could not be used to deny equality of opportunity for non-backwards people. 

Indira Sawhney v. Union of India [5]

The judgement came in a 6:3 ratio, where minority opinion held that the Mandal Commission is unconstitutional because there is no limit set to implement the reservation policy. 

The Majority opinion held that the Mandal Commission is constitutional and does not violate any provision of the constitution. The Supreme Court held that it was mandated that reservation ordinarily should not exceed 50%. The Supreme Court upheld the carry forward rule subject to the overall ceiling of 50%. It was submitted that this view is correct as the reservation is an exception to the general principle of equality as such an exception cannot exceed the main principle. The Supreme Court after considering the various aspects of reservation in a series of cases analysed, examined and reviewed the constitutionality of the reservation system under Article 15(4), Article 16(4) and Article 340 of the Indian Constitution. 

In this case, the Supreme Court had answered several constitutional questions on the reservation. These questions are:

1. Whether the term “any provision” in Article 16(4) must necessarily be made by the Parliament or Legislature?

The Supreme Court held that the very use of the word “any provision” in Article 16(4) is significant in nature. Article 16(4) uses the word ‘any provision’ for regulations of services, conditions by orders and rules made by the executive. Here, the Parliament or Executive can make the law only for those sections of the society who are not adequately represented. The Parliament or Legislature are not bound in affirmative to make provisions for equal representation in public employment. 

2. Whether Article 16(4) is an exception to Article 16(1)?

The Supreme Court held that Article 16(4) is not an exception to Article 16(1), but is merely a way to do justice with Article 16(1). It is an extension of the Right to Equality.

3. Whether the concept of the creamy layer should be taken into account while implementing Article 16(4)?

8 out of 9 judges, in this case, held that the creamy layer must be excluded from the reservation made for OBCs. They gave the following reasons:

• For a group to be eligible for reservation, it must constitute a class. In order to be a class, the group must be homogenous. If the variations within it are vast, then it loses its character as a class. 
• Unless the privileged within the class were excluded, they would never reap the benefits. 
• Retaining groups who had transcended backwardness within a backward class would tantamount to treated unequal and violate Article 15.  

4. Whether the carry forward rule is constitutional or unconstitutional?

The Supreme Court held that the “Carry Forward Rule” is constitutional till the time it provides reservation up to 50%. Once the reservations exceed 50%, the rule becomes unconstitutional. 

5. Whether children of MPs and MLAs are excluded from the creamy layer?

Supreme Court held that it is the discretion of the State to examine the condition of children of MPs and MLAs. In pursuance to this Ramnandan Committee was formed. The committee held that the children of the present and former MPs and MLAs are excluded from the category of creamy layer and will come under the category of ‘Other Backward Class’ under Article 16(4).

6. Whether the concept of reservation is anti-merit?

Supreme Court held that reservation is not about putting meritorious students behind instead it makes more of an egalitarian society. There are certain positions were the vacancies should be filled by merit only like a scientist, pilots, defence services, etc. Therefore, it cannot be said that the reservation is anti-merit.

7. Whether the concept of the creamy layer should be applied to Scheduled Castes and Scheduled Tribes?

The Supreme Court was believed that the concept of Creamy Layer is applicable only to “Other Backward Classes”. The Schedule Caste has suffered the practice of untouchability more than other backward class and they are the more underprivileged class in comparison to other backward class.

8. Whether the adequacy of representation in services under the state is subject to judicial scrutiny?

The Supreme Court held that the adequacy of representation of a particular class in the services under the state is a matter within the subjective satisfaction of the appropriate government. The judicial scrutiny in that is the same as in other matters within the personal satisfaction of an authority. 

9. Whether the backwardness in Article 16(4) should be both social and educational?

The Supreme Court held that the backwardness enshrined under Article 16(4) need not be both social and educational as in the case of Article 15(4). Article 16(4) is of a broader scope and social backwardness includes many other backwardnesses like economic backwardness, caste, etc.  

K.C Vasant Kumar v. State of Karnataka [6]

The bench of Supreme Court consisting of Justice Chandrachud, Justice Desai, Justice Chinnappa Reddy, Justice Sen and other Justices held that reservations in favour of Scheduled Caste, Scheduled Tribes and Backward Classes must continue in the present form and for a period not exceeding 15 years. But the policy of reservation in the sectors of employment, education and legislative institutions should be reviewed after every five years or so.

The criteria to judge the Backwardness should be the Economic Backwardness and the reservations should not cross a reasonable limit of preference and discrimination. 

Dr Fazal Ghafoor v. Union of India [7]

The Supreme Court held that there should not be any reservation in the field of Speciality. If therefore preference has to be given, it should not exceed 35% of the total quota. 

Conclusion

Upon the analysis of all the cases stated above, it can be observed that the comparison of “socially and educationally backward classes” with the Scheduled Caste and Scheduled Tribes in Article 15(4) were to be construed as including such backward classes as the President may by order specify on the receipt of the report of the Commission appointed under Article 340(1) of the Indian Constitution. 

The concept of backward classes is not relative in the sense that any class which is backward in relation to the most advanced class in the community must be included in it.

Hence, by a series of cases and constitutional provisions, it can be concluded that minority rights in post-independent India have been safeguarded, promoted and have been encouraged not only by the framers of the constitution but also by the present administrators, the legislators and the Judiciary.  

References  

1. AIR 1951 SC 226.
2. AIR 1952 Bom 461.
3. AIR 1963 SC 649.
4. AIR 1964 SC 179.
5. AIR 1993 SC 477.
6. AIR 1985 SC 1495.
7. AIR 1988 SC 2288.

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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 defines and explains about different terminologies used under Law of Evidence. 

Introduction

The Law of Evidence is a significant part of any branch of the judicial system irrespective of any nation, which means the role of evidence is very important statute in every country. But talking specifically about India the enactment of Indian Evidence Act has changed our judicial system completely as there were no codified laws relating to evidence which enriched our judicial system by providing rules and regulations for ascertaining the shreds of evidence. Although the India Evidence Act is based on English law still it is not fully comprehensive and also it is a ‘Lex Fori’ law which means law of the land where court proceedings are taken. The term ‘evidence’ is derived from Latin word i.e., ‘Evident’ or ‘Evidere’ which means ‘to show clearly, or to discover, or to ascertain or to prove.’

The Evidence act came into force from 1st September 1872 applies to all over India except the state of Jammu and Kashmir. The limitation of this act does not end here, as it is not applicable to army & naval law, disciplinary acts and all the affidavits. It is well known that the Law of evidence is Procedural Law and it only applies to court proceedings but it also has a feature in its some part which makes it as Substantial Law like Doctrine of Estoppel.

The primary objective of any Judicial System irrespective of any state is to administer justice and protect the rights of the citizens. For administering justice, every judicial system has to consider the facts of the cases and has to extract the correct facts for complete justice; and there the importance of procedural law comes into existence which laws different rules in checking the value of the facts produced by the law offender and by the victim.

The complete ‘corpus juris’ i.e, a body of laws, is divided into two categories:

• Substantive laws- Which mean a set of rules and regulations that govern the society.
• Adjective laws- These are the set of rules and regulations which deals with the law governing procedural aspects such as evidencing, pleading etc.

But the law of evidence neither comes under substantive law nor under procedural law, rather it is a subject matter of ‘adjective law’, which defines the pleading, evidencing and procedure with respect to substantive laws. The general meaning of ‘Evidence’ is ‘a body of facts and information indicating or adjudicating the values of any facts or evidence’.

Classification

Evidence is classified into different categories such as:

Oral Evidence- Section 60 deals with the oral evidence, where oral evidence is those evidence which the witness has either personally seen or heard any such facts or information which has the capability of proving or establishing the facts in issues. The only condition with these types of evidence is that they must be direct or positive for establishing the fact in issues.

• Documentary Evidence- Section 3 talks about the documentary evidence, where those facts or information in the form of the document can be witnessed directly by the court of law for establishing the facts in issues.
• Primary Evidence- Section 62 deals with primary evidence, these are those facts or information which by any means has a great capability of proving or disproving any fact in issues then such information is considered as primary evidence like a paper document of any vehicle is primary evidence to prove the ownership of the vehicles.
• Secondary Evidence- Section 63 deals with secondary evidence, these are those evidence which is given in the absence of primary evidence like when there is no primary evidence than secondary evidence can be used to prove a fact in issue.

Eg. If the original paper document is lost then its photocopies can be used as secondary evidence to prove the ownership.

• Real Evidence- Real evidence means material evidence where the court can inspect the evidence directly and requires no further knowledge.
• Direct Evidence- It is one of the most powerful types of evidence as the court need not make any inference because these evidence shows the direct impact and has great value to establish or prove any fact in issues.
• Indirect/ Circumstantial Evidence- When there is no sufficient direct evidence to prove any fact in issue then the court can make an assumption on the availability of existing evidence and construct a link between the existing evidence and the inference. And if the constructive link is completely beyond any reasonable doubt then the court can establish any fact.
• Hearsay Evidence- Hearsay evidence is very weak evidence or no evidence as to the witness, himself is not the actual witness of the fact in issues because whatever he is reporting is not what he saw or heard rather the reporting facts are the facts which are narrated by another person. Hence the court believes that the narrated facts by the third person have not much credibility in establishing any facts.
• Judicial Evidence- Statements of witnesses, documentary evidence, facts established during the examination of a witness in the court, self-incrimination is some kind of evidence which the court receives itself and such evidence are known as judicial evidence.
• Non- Judicial Evidences- Confession made by the witness or accused or victim outside the court are considered as non- judicial evidence.
• Prima Facie Evidence- The concept of ‘on the face of it’ with respect to evidence is a principle when the court presumes any facts and considered them proved until they are disproved, then such evidence is known as prima facie evidence.

The Need for Evidence Law

Evidence is the only possible way by which the court can make inferences to render a decision. The definition of evidence explains that evidence is the proof of any fact in issues so without evidence there will be no possibilities to prove any fact in issues or even to establish any facts in the cases. It is very obvious that it is not much difficult task to obtain trust through violating the basic structure of law but in the course of protecting those rights Evidence, Law comes into the picture. Evidence Law tells the basic principles and rules regarding collection. So the process of evidencing any facts or proof should be governed by a well-established law in order to achieve speedy and fair justice.

The law of evidence is not just a fundamental principle governing the process of proof rather it also has a multidimensional purpose of governing the rules relating to the process of proof in court proceedings. While it’s moral dimension is a special asset in criminal trials as it endeavours in protecting the innocent and highlighting the guilty person to administer complete and fair justice. On the other hand, the evidence rules also have the capability to hide and prevent the truth to be disclosed in the public domain to protect the mass public interest.

Basic Legal Terms

• Facts in issues- Section 3 of the Indian Evidence Act defines facts and fact in issue in such a way that facts mean the ‘happening or existence of anything’ these are particularly knowledge or any information related to anything. Whereas, facts in issue are those facts which are in question or those facts which need to be proved for the purpose of ascertaining some information and making inferences out of relevant information in the case in obtaining justice.

Illustration-

A is the owner of a shop- it is a fact.

A is accused of robbery- now whether A committed robbery or not is a fact in issue.

• Relevant Fact- The actual meaning of relevant is ‘connected’, so those facts which give any inferences or support or influence to any other facts then these facts are known as relevant facts.

Illustration-

A is accused of Murder of B in Agra (Fact)

A was in Canada for his business meetings at the time of the murder (Relevant fact)

• Proved- A fact is considered to be proved when, the court after considering all the evidence after the trials and proceeding either believes the happening of the case in such a manner as it is expressed or if the court makes a probable inference beyond reasonable doubt and believes that the existence of the case in such manner as it was explained.
• Disproved- A fact is considered to be disproved when the court after considering all the evidence after the trials and proceeding either believes that it does not exists as explained or if the court makes a probable inference beyond reasonable doubt and does not believes the existence of case in such a manner as it was explained.
• Not proved- A fact is called not proved when the facts are in a circumstantial condition that they are neither proved nor they are disproved.
• Presumption- Presumption generally means a process of ascertaining few facts on the basis of possibility or it is the consequence of some acts in general which strengthen the possibility and when such possibility has great substantiate value then generally facts can be ascertained. A presumption in law means inferences which are concluded by the court with respect to the existence of certain facts. The inferences can either be affirmative or negative drawn from circumstance by using a process of best probable reasoning of such circumstances. The basic rule of presumption is when one fact of the case or circumstances are considered as primary facts and if they are proving the other facts related to it, then the facts can be presumed as if they are proved until disproved. Section 114 of Indian Evidence Act specifically deals with the concept that ‘the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of (a) natural events, (b) human conduct, and (c) public and private business, in their relation to the facts of the particular case’.
• May presume- It is a condition when the court enjoys its discretion power to presume any/ certain/ few facts and recognize it either proved or may ask for corroborative evidence to confirm or reconfirm the presumption set by the court in its discretion. Section 4 of the Indian Evidence Act provides that a fact or a group of facts may be regarded as proved, until and unless they are disapproved. The concept is defined under Section 4 of this Act that ‘May Presume’ deals with rebuttable presumption and is not a branch of jurisprudence.
• Shall presume- It denotes a strong assertion or intention to determine any fact. Section 4 of Indian evidence Act explains the principle of ‘Shall Presume’ that the court does not have any discretionary power in the course of presumption of ‘Shall Presume’, rather the court has presumed facts or groups of facts and regard them as if they are proved until they are disproved by the other party. Section 4 of the Indian Evidence Act explains that the concept of ‘Shall Presume’ may also be called ‘Presumption of Law’ or ‘Artificial Presumption’ or ‘Obligatory Presumption’ or ‘Rebuttable Presumption of Law’ and tells that it is a branch of jurisprudence.
• Conclusive Presumptions/ Proofs- It can be considered as one of the strongest presumptions a court may assume but at the same time the presumptions are not completely based on logic rather court believes that such presumptions are for the welfare or upbringing of the society. With regards to Conclusive proofs, the law has absolute power and shall not allow any proofs contrary to the presumption which means if the facts presumed under conclusive proofs cannot be challenged even if the presumption is challenged on the basis of probative evidence. This is the strongest kind of all the existing presumptions whereas Section 41, 112 and 113 of the Evidence Act and S. 82 of the Indian Penal Code are one of the most important provisions related to the irrebuttable form of presumptions or Conclusive Presumption.

The general definition of Conclusive Proof is a condition when one fact is established, then the other facts or conditions become conclusive proof of another as declared by this Act. The Court in its consideration shall regard all other facts to be proved, only if one fact of the case is proven without any reasonable doubt. And if the other facts are proved on the basis of proving of one fact that the court shall not allow any evidence contrary to other facts which are presumed as conclusive proofs

Illustration- A and B married on June 1 and the husband left home to his work for 6 months later he discovered that her wife is pregnant he divorced the wife and challenges that he is not liable for paying damages either to his wife or to his illegitimate son. And also explains that he never consumed his marriage as just after one day of marriage he left his home for his work. But in this case, the court will conclusively presumed that the son born out of his wife is legitimate because he was with his wife for at least 1 day and shall not allow any proof contrary to the conclusive proof even if he provides probative evidence.

Relevancy of Facts

1. Doctrine of Res- gestae: The doctrine of Res gestae is expressed under section 6 of the Indian Evidence Act, 1872 in the following words- “Facts which though not in issue are so connected with the facts in issue so as to form a part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places”

Res gestae was originally used by the Romans which means to ‘acts done or actus’. The most important principle of this doctrine is that all the facts must be described in the same transaction. Whereas transaction means a group of facts which are so connected to each other that they can be considered as a single fact. In Layman’s language, a transaction may be considered as a series of certain acts and when all the actions are carried in the same situations at the same point of time then such situation or condition be called as the act of the same transaction. Circumstantial or indirect facts are also considered under the doctrine of res gestae as they are also forming a part of the same transaction.

Essentials of Doctrine of Res Gestae-

• The statement made should not be an opinion and must be a statement.
• The statements should be made by the participants of the transaction.
• The statements should have enough information to explain or brief about the incident.
• The statements made by the person or act of the person should be spontaneous and simultaneous to the main transaction.

Illustrations-

If a person is dying of poison and before dying, he tells the name of the accused.

If a person is about to die as the accused is in front of him holding a gun and he asks for help.

If an injured person is crying for help.

In, Ratten V. Queen[1] the victim (wife) called the police for help as her husband was holding the gun and was about to kill her but before the operator could get connected to the call and report the statements of the victim, the call disconnected. Later the police found her dead body in her house from where she called the police for help. Later the police found that the time of the call and time of death was almost the same so the call by the victim comes under the principle of res gestae. Hence the court found the husband guilty of murder and quashed his reasoning that he shot accidentally without any intention.

In, Sukhar V. State of UP [2] the victim tried to alarm that the accused will shoot him in a few minutes. On hearing the alarm the witness almost reached the place of incident. However, the victim survived and the accused was charged under section 307 of IPC (Punishment for Attempt to Murder). Despite the circumstances, in this case, being hearsay evidence, but still, the court recognised the act in the same part of the transaction and explained it to be a case of section 6 of the Indian Evidence Act. Therefore the statements of the witnesses were admissible as it formed a part of the same transaction.

In Uttam Singh vs. State of Madhya Pradesh[3]the child and the victim were sleeping together at the time of the incident and he suddenly awakened due to the voice of axe and screamed for help by taking the name of the accused. Just after the call for help his mother, sister and other witness come there. The court found this evidence to be admissible as the act of the child and the accused was of the same part of the single transaction.

2. Motive Preparation and Conduct

Section 8 of the Indian Evidence Act talks about the importance and of motive, preparation, conduct(previous & subsequent) in various cases. And it is a well-known fact that Motive & Preparation are among the first act before any conduct. Therefore Section 8 explains the importance of motive, preparation and conduct where there are no direct evidence and the facts are proven on the basis of circumstantial.

Motive- The general meaning of ‘Motive’ a purpose, or objective to obtain something. The Supreme Court of India defined motive is something which induces or activates a person to make an intention and knowledge, with respect to awareness of consequences of the act.

The relevance of Motive under the Act: As in the above discussion we have already seen that Motive is the main inducing force which induces a person to do some act. It is expressed that if the offence has been commenced voluntarily then could be no possibility of the absence of motive. Although it is very difficult to obtain the evidence of motive still evidence of motive becomes very important in the case of circumstantial evidence. The Supreme Court in the reference of motive said that ‘if the witnesses of any case are trustworthy and have enough credibility then the motive of any act done by the offender has no such importance’.

Although motive and intention are the same there is a thin line of difference between them that intention is the pre-calculation or knowledge of ascertained consequences in the mind of the offender. In some cases, it is observed that sometimes motive behind the execution of a crime may be good but the intention is always bad or guilt-oriented.

In, Kundula Bala Vs State of A.P[4]: The son-in-law before his marriage demanded a piece of land from the deceased. But after the marriage, the deceased refused to transfer the ownership of the property and expressed that he would give this property to his daughter. Such inferences of the father in law induced the accused in committing a crime and after some time the crime commenced. The court observed that there is a strong motive with the accused of committing the crime as the father in law refused to transfer the property in the accused name.

In, Gurmej Singh Vs State of Punjab[5]: The deceased has won the election against the accused. It is also seen that they don’t have good relations between and they have always had a quarrel with each other. The reason behind frequent quarrels was that the accused diverted dirty water stream towards the house of the deceased. The court observed that there were pending litigation between them and dirty water stream induced the frustration between them. After the death of the deceased, the Court concluded that dispute related to the passage of dirty water could be the motive of the murder.

In, Rajendra Kumar Vs State of Punjab[6]: The Court held that the accused can only be convicted if the prosecution completely proves the motive and provide the supporting evidence to establish the commission of the offence by the accused.

Preparation

The Supreme Court of India interpreted ‘preparation’ as a word which denotes the action or preparation of any act and also those components which are prepared. Preparation includes arranging the essentials objects for the commission of a crime/offence.

Evidence tending to show that the accused had prepared for the crime is always admissible. Preparation does not express the whole scenario of the case rather preparation is only subjected to the arrangements made in respect of committing any act. Further, there is no mandate that preparation is always carried out but it is more or less likely to be carried out. It is very difficult to prove preparation as there is no mandate that preparation is always carried out for the purpose of committing any crime. It is mostly observed that the Court draw inference with certain facts in establishing or ascertaining the preparation of crime committed.

In, Mohan Lal Vs Emperor[7]: The accused was charged for cheating as he was importing goods in Karachi port from Okha port without paying the proper custom duty as he made some arrangements with the customs department. The prosecution showed enough evidence to prove the preparation by the accused in avoiding the import duties. The Court held that the act by the accused was completely wrongful and are prohibited by the law hence the accused is liable for preparation.

In, Appu Vs State[8]: The four accused arranged a meeting to make essentials arrangements for commencing crime. Certain facts related to the objective of the scheduled meeting were admitted which showed preparation on their part. The preparation was administered clearly that it is an intention to commit burglary and the accused were waiting for the right time to get the best opportunity to execute their preparation.

Conduct- Section 8 of The Indian Evidence Act also defines ‘conduct’, conduct here means an external behaviour of a person. To check if the conduct of a person is relevant to the incident then the court must establish a link between the conduct of a person who committed the crime and the conduct of incident. The most important role of this part is that the relevant conduct must bring the court to a conclusion of the dispute. If the Court came to a conclusion then the conduct was previous or subsequent, it shall be checked properly by the Court. It is very clear that conduct is one of the very important evidence explained under Section 8 and such importance is only considered when this conduct is in direct form, otherwise, if the conduct is recognised indirectly then it will lose its importance.

In, Bhamara Vs State of M.P[9]: a person X was farming on his land, on seeing another person standing near to his place he called the person for some conversation. After a few moments, the conversation turned into arguments and ended up into a fight. On seeing such activity other people came to the place of incident to stop the fight but subsequently, the offender tried escaping. But the offender was caught by some other person. The Court found that the conduct of escaping of the offender was relevant subsequent conduct.

In, Nagesha V. State of Bihar [10], it was held by the Court if the first information is given by the accused himself, the fact of his giving information is admissible against him as evidence of his conduct.

Conspiracy- Conspiracy means few people come together to do an act with common intention. So in the same context, a criminal conspiracy is the act of at least two or more persons to do an act which is not authorised by the law i.e., an illegal act, or to do a legal act by illegal means. Criminal Conspiracy is a kind of partnership in crime, and every member of such partnership must join the partnership by mutual agreement for executing a common plan.

There are two relevant provisions which deal with the criminal conspiracy i.e., Section 120(A) of the Indian Penal Code and Section 10 of the Indian Evidence Act talks about the things said or done by a conspirator.

Essentials of Criminal Conspiracy u/s 10 of the Indian Evidence Laws:

• There should be reasonable grounds to establish a conspiracy.
• There should be at least two or more persons to form a conspiracy.
• There should be a common intention of all the conspirators.
• Acts or Statement of the conspirators.
• The acts or statements of the conspirators must be in reference to common intention.

In, State of Tamil Nadu v. Nalini[11], the court held that once any of the participants of conspiracy execute the conspiracy then his statements made by him cannot be used against other conspirators according to Section 10 of the Indian Evidence Act.

In Subramaniam Swamy v. A Raja[12], the court in its judgments showed that anything which is doubtful cannot be considered as legal proof and such proofs are insufficient to prove any criminal conspiracy.

Alibi- The word ‘Alibi’ is derived from the Latin word, which means ‘elsewhere’. Section 11 of the Indian Evidence Acts explains the concept of ‘Facts not otherwise relevant become relevant’ and makes the provision as a defending ground for the accused. The simplest meaning of this section is a condition when the incident took place and the accused is charged for the incident then he may make defend him on explaining that at the time of the incident he was not present at the location. Although previously it was not relevant for the court to know that where he was as the investigation showed that he committed the crime but his explanation that he was not at the place of incident make the irrelevant facts a relevant fact. The important part of Section 11 of the Evidence Act is that this rule is only accepted in the course of admission of the evidence and no other statute provides such rule.

The plea of alibi has to be taken on the very first stage of the trial and must be proved without any reasonable doubt as the burden of proof is on the person who is taking advantage of Section 10 i.e., Plea of Alibi.

Essentials of Plea of Alibi:

• There must be an offence punishable by the law.
• The person taking the defence of Section 10 should be accused of that particular offence punishable by the law.
• The defence must be satisfactory and beyond any reasonable doubt.
• The defence must be backed by evidence.

In, Lakhan Singh @ Pappu vs The State of NCT of Delhi[13] A plea of alibi cannot be compared with a plea of self-defence although both the plea is to be taken on the very first instance of the court proceedings.

In, Sahabuddin & Anr vs the State of Assam[14] Once the court is in doubt with respect to plea of alibi and the accused does not give any substantive explanation to support his statement under Section 313 CrPC, then the Court is authorised to conclude a negative or not a positive inference against the accused.

In, Jitender Kumar v State of Haryana[15] the Court not believing the plea of alibi as the accused did not provide the sufficient supportive evidence for establishing the defence. And the Court supported the case from the prosecution side.

Confession- Section 23 of the Indian Evidence Act defines the word “confession” is an admission of crime by a criminal or suggesting the inferences that he committed a wrongful act, confession can be made at any time during the trial.

In, Palvinder Kaur v State of Punjab the Supreme Court observed two aspects which are: Firstly, the definition of confession is that the accused must either admit the guilt or admit subsequently all or few facts which constitute the offence. On the other side, a mixed statement which also contains some confessional statement will still lead to an acquittal, is no confession. Thus, a statement that contains self-exculpatory matter which if true would negate the matter or offence, cannot amount to a confession.

In, Nishi Kant Jha v State of Bihar the Supreme Court opined and substantiated its arguments on the support of English authorities that it the discretion of the court and there is nothing wrong with relying on some specific part of the confession and rejecting the other part.

Magistrate duty of recording the confession- A Judicial Confession is made to the Magistrate during the judicial proceeding or at the time of court trial. Judicial Confessions are very relevant and are considered as one the most important type of confession as they are directly recorded by the court. Section 164 of CrPC empowers a magistrate to record a confession in his presence and such confession will hold enough evidentiary value that the confessor can be held guilty. Rajasthan High Court has also held that the confession of an accused must be free, voluntary and genuine that nothing is left with the prosecution to prove any fact then only the person can be convicted on the basis of confession.

Dying Declaration

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, 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 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 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 [16] 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 [17], 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, 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.

Expert Advice 

Section 45 to 51 of the Indian Evidence Act deals with the provision of admissibility of opinions of third persons, which is also known as ‘expert’s opinion’. Although it is a general rule that evidence can only be obtained on the basis of facts which are within the knowledge of a witness. The exception of ‘expert opinion’ is based on the principle that sometimes the court can’t conclude all the matters of the cases which are technically complicated and professionally sophisticated, as these cases are required to deal by such experts who have special knowledge and skills on those matters. The Section 45 of the Indian Evidence Act defines the meaning of ‘expert’ as a person who has special knowledge or skills or has a great experience either in foreign law or in science or in art or in handwriting or in finger impression; and such knowledge is gathered by him in the course of practising in the specific field or through observation or through proper studies in the specific field.

When can an expert opinion be called?

The expert opinion can be called when there is:

1. a) A dispute which can’t be resolved without expert opinion; and
2. b) Such a situation that the witness expressing the opinion is a subject matter related to expert.

In, Arshad v. State of A.P. [18] and S. Gopal Reddy v. State of A.P[19], in both the cases the court observed that expert evidence are just a mere opinion and not the substantive or a probative evidence; according to the procedural rule the opinion or the inference of the expert is not safe as they don’t have any independent value so they must be corroborated with the circumstantial evidence.

In, Piara Singh v. the State of Punjab[20] the Court state that whenever there is a contradiction between the opinion of two experts, then the court must refer only those opinions which are supported by the direct evidence of the fact of the cases.

Witness

Bentham, explains the ‘witnesses’ as the eyes and ears of justice. But the general definition of ‘witness’ is- A witness is a person who voluntarily provides evidence to clarify or to help the court in determining the rights and liabilities of the parties in the case. Witnesses can either be the person related or experts with valuable input for the case. Pieces of Evidence are placed in the court on the basis of witness and even the genesis can be proved of the documents can be proved in the court. Therefore, the law has to be very precise with regards witness and has to check the credibility of the witness, there are some certain issues to the court before the admission of the witness’s statements such as- How many witnesses are needed to prove a fact? Who is competing to be a witness of the issues? How to check the witness credibility?

Section 118 of the Indian Evidence Act lays down certain rules that ‘who may testify’ the rule expresses the provisions that all personnel shall be competent to testify by the court unless the witnesses are protected by some other provision that they cannot understand the question presented before them to testify any facts and such exceptions can be related to extreme old age, chronic disease, being legally unsound etc.

Prima facie, Section 118 of the same Act expresses that other than all person who are incompetent to testify any facts in issues are the competent witnesses. The basic structure to test the competency of a witness is to check whether a witness can understand the questions and can answer reasonably or not.

In Rameshwar vs. State of Rajasthan[21], the Court held that a witness administering an oath only shows the credibility of the witness and not the competency.

Section 135 specifically talks about the order of production and examination of witnesses. It lays down certain rules which specify that the witness can be produced in a particular order only, and shall be examined according to the rules. It also gives discretionary powers to the Court that when there is an absence of law then the order of witness and examination of witnesses will be carried out in the prescribed manner as the Court dictates.

Section 136 empowers a discretionary power to the Court that it is up to the Court who accept the evidence or not.

Three basic stages can be laid down in the examination of witnesses:

Examination In Chief: When the advocate itself introduces his witness and examines them, no matter whether they are the plaintiff or the defendant, then such examination is known as ‘Chief Examination’. It is always preferable that the questions should be properly ordered to maintain the structure of the information. It is advised that only relevant questions should be asked and no leading questions should be asked.

Cross Examination: The other name of cross-examination is ‘examination exadverso’. Such examinations are utilised to testify or impeach the credibility of a witness produced by the other party.

In, Ganesh Jadhav v State of Assam[22] If the defence fails to challenge and impugned the relevant facts stated by the prosecution in the course of examination the witness in chief, then the Court can believe that facts produced by the prosecution are true facts.

Re-Examination: Re-examination is the process of second and subsequent examination by the suffering party. When the council thinks that there is a need of examining his witness again because new facts are availed by the defence party in the course of cross-examination then he may with the permission of the court re-examine his own witness to testify the new facts. Though re-examination is not a matter of right still the Court does not disturb the court proceedings as re-examination may explain the new facts in the case and to administer the justice these facts are necessary.

References

1. [1972] A.C. 378, [1971] UKPC 23, [1971] 3 All ER 801, (1972) 56 Cr App R 18, [1971] 3 WLR 930]
2. (1999) 9 SCC 507
3. 2002 INDLAW MP 79
4. 1993 Cr LJ 1635 SC
5. AIR 1992 SC 214
6. AIR 1966 SC 1322
7. AIR 1937 Sind 293
8. AIR 1971 Mad 194
9. AIR 1953 Bhopal 1.
10. AIR, 1996 SC119
11. AIR 1999 SC 2640 or 1999 5 SCC 253
12. (2012) 9 SCC 257
13. Delhi HC Crl Appeal No. 166/1999
14. Criminal Appeal No. 629 of 2010
15. (2012) 6 SSC 2014
16. (AIR 1930 Lah. 450)
17. (1999) 9 SCC 507
18. 1996 CrLJ 2893 AP
19. AIR 1996 SC2184
20. AIR 1977 SC 2274
21. AIR 1952 SC 54
22. 1995 1 CR LJ 111

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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 talks about the Hierarchy & Jurisdiction of The Indian Court along with the functions of the judiciary.

Functions of Judiciary

• Interpretation of Law: The primary function of the judiciary is to interpret the law with the application of the principles of custom, statues and execute them to specific issues or cases as per the requirement. The function of the Judiciary is not settled to interpretation but it also applies principles of justice, equity and morality to solve the case in the absence of any law related to the dispute.
• Custodian of the Constitution: The judiciary acts as the guardian of the constitution in our country and especially where there is a federal government. The constitution is the supreme law of the land, thus, it is the duty of the judiciary to protect the Constitution. The judiciary also has the power to declare any law as unconstitutional passed by the legislature if it is inconsistent with the supreme law of the land. The Supreme Courts of the U.S and India are also empowered with the power of judicial review.
• Guardian of Civil Liberties: The judiciary is the guardian of civil liberties of the citizens and people of the country. It protects individual liberty by imposing sanctions on those who try to dilute them. It also protects the people in the country against arbitrary and unlawful action of the government. The Constitution of India under Article 32 & Article 226 has made the Supreme Court and High Courts respectively as the guardian of fundamental right against their violation by the State. If the state violates the rights of the people in the country then the courts may issue injunctions to prevent such violation by the means of issuing writs such as Habeas Corpus, mandamus, etc.
• Legislative Functions of the Judiciary: Laws are not so comprehensive and exhaustive which covers all the details of every case. Thus, the Courts find the exact meaning of the law and expand the details to apply general principles of justice and morality.
• Advisory Functions: The Courts also acts as an advisory body, which gives its opinions to executive and legislature bodies In our country the President may take any advice from the Supreme Court on any question of Constitutional law.
• Administrative Functions: The Supreme Court and High Courts also function as an administrative body as they are empowered to appoint their officials and supporting staff. In this way, the judiciary also performs an administrative function.
• Miscellaneous Functions: Judiciary performs miscellaneous functions like the granting of probate and appointment of receivers, guardians and trustees etc., they may also grant licenses, and can perform other functionaries etc.
• To Conduct Judicial Inquiries: Judges are very often called upon to lead the Enquiry Commission, constituted to enquire some serious incidents which are caused by errors or omissions of an error on the part of the government or some public servants.
• Power to get its Decisions and Judgements enforced: The power of the judiciary is not so limited to deliver judgments and decide the matter before it, but it also has the power to enforce their decision. It can direct the executive to enforce its decisions.

Types of Court under the Indian Judicial System

• Criminal Courts
• Civil Courts
• Tribunals

7 Types of Court in India

• Supreme Court- The Supreme Court of India is the highest judicial forum or the highest appeal court in the Indian Judiciary System which is also known as Apex Court of the Country and it is established under Part V of the Constitution of India.
• High Court- The High Court is the highest judicial forum or the highest appealing court of any state or union territories assembled in the Indian Judiciary System and it is also known that High Court has the highest jurisdiction above all the court in India.
• District Court and Additional District Court- The District Courts of India are established by the State Governments for every district or for a group of the district on the basis of a number of cases, the population of the defined area. These courts are subordinate of the High Court of the State and are in full control of respective High Court of the State to which the district concerned belongs. The district court is presided over by one District Judge and he can be assisted by a number of other Additional District Judges and Assistant District Judges depending on the workload. The Additional District Judge and the court presided have equivalent jurisdiction as the District Judge and his district court.
• Courts of Judicial Magistrate of Second Class– These are on one of the lowest hierarchies of the Criminal Court structure in India. Section 11 of CrPC, talks about the establishment of JM- 2, that a Court of Judicial Magistrate of Second Class may be established by the State Government in consultation with the respective High Court of the state at any place in the district. Generally, the post for Judicial Magistrate 2nd Class is dissolved within 6 months by the newly appointed officers unless the concerned High Court of a State reduces or increase the time period of 6 months.
• Courts of Judicial Magistrate of First Class- These are also among the lowest level of the Criminal Court in India. According to the Section 11 of the Criminal Procedure Code, a Court of Judicial Magistrate of First Class may be established by the respective State Government in consultation with the High Court of the respective state at any place in the district where the State Government thinks that there is a need of the concerned court. According to Section 15 of the CrPC, a judicial magistrate of all class is under the general control of the Sessions Judge and is subordinate to the Chief Judicial Magistrate.
• Court of small causes for metropolitan cities- In Indian Judicial System the Small Causes Court is responsible for deciding the matters related to civil cases and these courts are responsible for cases relating to tax, property disputes (which relate to rent and leave and licence) and other such small cause cases. In India, such Courts are established under the Presidency Small Cause Courts Act-1882. As per the provisions of this Act, the State Government may establish a Court of Small Causes at any place within its territory.
• Munsif’s court or court of sub-judge III class- District Munsiff Court is considered as the lowest court of Indian Judicial System which only decides the cases related to civil matters. They are generally under the control of the District Courts of the respective district. The appeal against these courts is entertained by any courts which are at least one rank superior to them but are inferior to the District. 

Indian judiciary flow chart [1]

Civil Court Meaning

A Court is said to be Civil Court when the Court only handles legal disputes or matter that are not associated with any crimes. Civil courts handle disputes between individuals and not between the State, thus, matters related to businesses, including family law cases like divorces or adoptions, business and contract disputes, personal injury cases, and property disputes etc., all such disputes are adjudicated by the Civil Court. In civil cases, there is no involvement by the government which means the plaintiff has to bring the suite itself before the court against the defendant.

Criminal Court Meaning

A Court is said to be Criminal Court when the Court only handle the legal disputes or matter that are associated with criminal matters or charges. In criminal court, the government files a case against the person who committed the crime. In criminal trials, the accused is called the defendant and the government has to prove that the defendant is guilty of his act beyond a reasonable doubt.

Jurisdiction of Courts in India

Both Civil Courts and Criminal Courts have been categorised on the basis of jurisdiction related to-

• Subject Matter Jurisdiction: The general meaning of ‘Subject Matter’ is the type of matter the specific Court deals like if it is a Civil or Criminal, if the disputed matter is related to marriage, tax, fraud, criminal acts etc., It can be defined as the authority of the court to hear cases of the particular type of specific subject matter.
• Territorial Jurisdiction: Every court has its geographical limits to what they can exercise their jurisdiction, which means that the court can only hear matters related to their area and not of other areas which are beyond their jurisdiction limit.
• Pecuniary Jurisdiction: Pecuniary Jurisdiction is related to money or the valuation of dispute in terms of money, and the court can try only those cases which they are authorised to sentence the damages to the victim like different courts of the Consumer forum.
• Appellate Jurisdiction: It refers to the authority of a court to review a case that has already been settled by a court inferior to them. Such type of jurisdiction is generally vested in High Courts and Supreme Courts.

Jurisdiction of Supreme Court

The Supreme Court of India has different jurisdiction to administer justice such as:

• Original Jurisdiction: The original jurisdiction is also known as the writ jurisdiction of the Supreme Court of India. Article 32 of the Indian Constitution grants every citizen the right to seek constitutional remedy directly in the Supreme Court of India. Any person can approach the Supreme Court of India for seeking remedy against the violation of his fundamental rights. Any matters related to fundamental rights or matters related to enforcement of fundamental rights come under the original jurisdiction of the Supreme Court of India as it is well said that the Supreme Court is the highest interpreter of the Constitution. The Supreme Court is not only subjected to the original jurisdiction only matters related to the fundamental rights as Supreme Court also has the original jurisdiction in matters or disputes related to-

• Government of Indian and one or more states.

• Government of Indian and State on one side and State on another side.

• State and State.

The original jurisdiction of the Supreme Court only comes with the law of fact on which the question depends if there is any legal rights which are court have to determine.

• Appellate Jurisdiction of Supreme Court: It is the Highest Court of appeal, decrees or orders passed by the Supreme Court has effects throughout the country. The cases which the Supreme Court entertains which comes in the form of appeal against the judgment of the lower courts, then, such jurisdiction exercised by the Supreme Court is known appellate jurisdiction. The fundamental rule of approaching the Supreme Court is to get a Certificate form, from the High Court where the Court will state that the case involves a substantial question of law as to the interpretation of the Constitution and such interpretation can only be done by the learned Supreme Court to administer the Justice. And if the High Court refuses to give such certificate to the person who is affected by the decision of the High Court or who is not satisfied with the decision of the Supreme Court; then the Supreme Court can grant special leave to appeal and such cases are only admitted if the court is satisfied with substantial question of law as to the interpretation of the Constitution.

Every matter that involves the interpretation of the constitution not matter if it is a civil, criminal or any other proceeding, the Supreme Court is the final authority to elaborate the meaning and interpret the Constitution of India.

• Advisory Jurisdiction: By virtue of Article 143 Supreme Court also enjoys advisory jurisdiction as the Article 143 empowers the President to consult Supreme Court and along with such power the President is not bound, to listen, to the opinion made by the Supreme Court. Usually the president consult with the Supreme Court only when he feels that a question of law or fact has arisen or is likely to arise and the question is of such a nature and of such public importance that he cannot take the decision alone, hence, the advice of Supreme Court is important in such cases.
• Review and Revision Jurisdiction of Supreme Court: Article 137 empowers the Supreme Court to review and revise its own decisions.
• Special Leave Petition: Special leave petition is the constitutional power vested in the Supreme Court by Article 136, where, the Supreme Court in its discretion, can grant special leave to the appellant against any judgment, decree, sentence or order passed by any court in the country.
• Court of Records: Court of the record is a principle which explains that all the cases decided by the Supreme Court are to be recognised as precedents and all the subordinate courts to make reference to the judgments passed by the Supreme Court. The judgments and inferences of the Supreme Court are to be recorded for perpetual memory and testimony and these records have evidentiary value and cannot be questioned when produced before any court. In India, both Supreme Court and High Courts act as Courts of Record.

Jurisdiction of High Court

• Original Jurisdiction: The High Court also enjoys the power to entertain the dispute in the first instance as by the means of original jurisdiction. Like the Supreme Court, the High Court also has the same original jurisdiction in matters of enforcement of fundamental rights under Article 226. Apart from such matters the High Court also has the original jurisdiction in the matters related to maritime law or admiralty jurisdiction, will, marriage, divorce, company laws and contempt of court. It also has similar jurisdiction in matters related to the election of MPs and MLAs.
• Writ Jurisdiction: Article 226 of the Indian Constitution empower the High Court to enforce writ and listen to all the matters related to the violation of fundamental rights in the way of issuing the writ. The only difference between the jurisdiction of Supreme Court and the High Court is that the Supreme Court can only issue the writs for the enforcement of fundamental rights but the High Court has the more jurisdiction over the writ as it can issue the writs for the other matters also.
• Appellate Jurisdiction: Like the Supreme Court appellate jurisdiction, the High Court also enjoys the appellate jurisdiction above all the courts subordinate to it within the respective state in both civil and criminal matters.
• Supervisory Jurisdiction: Under Article 227 of the Indian Constitution the High Court has to power above all the courts and tribunals within the state where the court is situated. Along with it also has the power to transfer the cases from one court to another for administering best and proper justice.

Jurisdiction of District and Additional District Court

• The District Court and Additional District Court exercise the same jurisdiction either being original or appellate jurisdiction in both the matter of civil and criminal. The territorial and pecuniary jurisdiction in civil matters is usually determined by the respective state where the court is situated. The jurisdiction of the criminal matter is determined on the applicability of the uniform statue i.e., the criminal procedure code. The district court or the additional district can pass any punishments authorised by law but in the case of sentencing the death, the punishment has to be confirmed by the respective High Court.

• Jurisdiction of Subordinate Court

1. The Court of Chief Judicial Magistrate may pass any sentence authorised by law except imprisonment for more than 7 years or life imprisonment or the death penalty to the offender of the law.
2. The Court of Judicial Magistrate 1st Class may pass any order or punishment authorised by the law except imprisonment exceeding 3 years or fine up to Rs. 10,000 or both.
3. The Court of Judicial Magistrate of 2nd class may pass any order or punishment authorised by the law except imprisonment exceeding one year or fine up to Rs. 5,000 or both.
4. The Court of Chief Metropolitan Magistrate has the same powers as of the Court of Chief Judicial Magistrate has. 

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This article is written by Suryansh Verma, a 3rd year student at Dr. Ram Manohar Lohiya National Law University, Lucknow. In this article, he lays down certain tips for law students and testimonials for scoring high in exams as a Law Student.

Introduction

Law exams can be really stressful sometimes when it comes to the course content. 700 pages of long judgments, 1000 pages long textbooks are bound to make you stressed out. But, don’t worry! I am going to lay down certain tips in this blog post which are going to help you to help you in scoring high in the exams.

Sometimes, on entering the exam room, most students start panicking and hyperventilating on sight of the question paper. This might be because of the fact that sometimes there is a need to pass that very law subject or maybe you’re putting too much pressure on yourself in order to achieve a high percentage.

The words on the cover of the Hitchhiker’s Guide to the Galaxy are the best possible remedy when faced with such times i.e.

Don’t Panic

The life of a law student is filled with hardships. The reason is that this profession demands a lot of hard work, sincerity, and diligence. One needs to be extensively well read. If you are not well versed with the things which are necessary for you, you are definitely going to have a lot of difficulty in comprehending whatever you’re reading.

There are hundreds of sections and articles of statutes. Most of the law schools in India make their students mug up all of them. It gets quite boring after a point of time.

Besides mugging up the whole statues, there are hundreds of case laws in almost every statute which is quite difficult to learn.

An average student can sit for studying at a maximum stretch of four hours. This capacity depends and varies from student to student.

For a slow brain like me, even two hours seem to be an extremely long period.

One has to make their brain accustomed to the long studying hours for scoring high in exams as a law student. Even if he/she is studying for a small span of time, they should be really thorough with what they have read. Yeah, you don’t really have a choice here.

You have to mug up everything the same way you remember the lyrics of Bohemian Rhapsody.

Most of the students have a really short attention span. This becomes a bit problematic because they may experience a blackout while writing the examination. This affects their performance in the paper and hence they score really less.

Then you start questioning your ability, remember Ishaan from Taare Zameen Par? You might have dyslexia.

Why should one score high marks?

Scoring less in your papers in law school has a disastrous effect on the CV. Most of the firms these days before giving internships pay a great amount of attention to the pointers/CGPA scored by the applicants. A high CGPA also depicts the sincerity and hard work of a student. 

Scoring high does not mean that you’re a nerd.

It also comes in handy while sitting for interviews. It carves out a good impression on the interview panel. Thus, scoring high in exams while in law school is a necessity.

This article shall provide you with useful insights which one may consider while preparing for their exams.

Control your nerves and keep calm

The first and foremost tip is to calm yourself before and during the exam. Most of the students get so stressed out before the exam that they start getting nervous. Always remember that you’re not alone, feeling nervous before a law exam is completely normal and understandable. 

Just, don’t go all American Psycho over the paper.

Always remember that many of your fellow students feel the nervousness too. You can think of the nervousness as excitement because it is all in your brain. Throughout your preparation leading up to the exam, feeling excited indicates that you are motivated to achieve what you want. You want to learn effectively and give a good performance in the exam.

Implement simple steps to calm down your nerves and channelize your anxiety to do the contrary. Calming yourself may include studying continuously for long hours, and then taking a small break doing things which do not involve the subject. 

These small breaks may consist of taking a stroll around the campus, or the walk, watching a short episode of a light-hearted TV show such as F.R.I.E.N.D.S. or any activity which helps you to calm down and lay off that stress.

Oh! Don’t you remember the episode where Chandler goes on kissing everyone, even Joey, such a great laugh! 

Thus, in order to score high, you need to have control over your senses and make sure that you do not get distracted.

Never fall back from reading

This is one of the most basic tips that might come in handy for law students. Reading is the most essential activity throughout law school. A law student cannot survive those years of education without a reading habit. Law students have a reputation in the world for reading a lot. Every week you need to understand and learn what the law is.  

Ah! Personally, I hate reading. I’d love to read horror stories all day but then it is not going to make me pass my exams you know.

One must be ready to read anytime, anywhere and in any condition as well. You must do the reading of the courses thoroughly that have been assigned to you for the semester. Skimming over through the course content is not a very good option as you will not be able to achieve effective learning through that. 

For scoring high in exams, you need to have a deeper and thorough understanding of the subject. This can only be achieved by reading.

Always be updated with the content of the course. If you fall back once, you might never keep up again with it. 

It is like the latest episode of Game of Thrones where you were not able to follow it and then you end up lagging behind all of your friends.

Read at the time of the day when you are most alert. Also, read in a location where you will not get distracted from something or tempted to do something else. The more you read, the more knowledgeable you will be.

Besides gaining knowledge on the subject, reading helps you in various other ways. It gives you useful insights which might come in handy for your subject as well.

Yeah, like the number of people going mad doing law every year? No, I’m kidding. 

If you do not understand anything, read repeatedly. Do not give up on reading. It might get difficult sometimes reading those twisted statutes and case laws. It would be problematic for you to score high in the exams without understanding.

Even Ishaan from Taare Zameen Par understood everything after being taught twice or thrice.

Once you’ve developed a reading habit, you’ll be able to memorize quickly and efficiently. Reading daily improves your retaining power as well. It also helps you to comprehend things easily. Thus, reading is the most essential habit to formulate while being in a law school.

Always remember Rancho from 3 idiots and say to yourself All is well! 

Establishing a routine

“The secret of your future is hidden in your daily routine” – Mike Murdock

It is extremely necessary for a law student to follow a proper routine to score high. Creating and following a routine is important to law school success.

I’ve always failed at following a routine, asking you to do so is too much. Although, if you’re able to follow one, Oh! You could be like a sorcerer doing magic and achieving whatever you want in life.

By establishing a routine early on, you can control your stress levels and also be ahead of your classmates. Following the routine will also help you in managing your time efficiently as well. Include almost everything in your routine. The period of your study should be at that point when you stay the most alert and concentrated.

Routines help you attain discipline. You cannot survive law school without having a fixed routine. 

Milkha Singh would not have won so many medals without a routine.

A law school has a ton of activities to get involved in. Starting right from extra-curricular activities to sports events, nothing is left out. Thus, one needs to manage everything in a proper manner.

You’ll have a fixed duration of studying for a couple of hours. The other activities shall be managed in the same way as well. Chalking out the hours of study in the routine will not only help you to score well in the exams but also enable you to have proficiency on the subject.

A routine helps you to stay focused on your goals and can help you manage your workload as well. It is easier to say it, but it is difficult to stick to a routine most of the time. 

For this, include other people in your routine who might have the same goal as you do, participate in study groups of your interest or you may also have a reading partner. This will help you to be accountable.

Go to class

Maintaining that 75% of attendance sometimes becomes a pain. 

Most of the times, professors cover some material in the class that you do not come across reading, so failing to attend the classes will put you at a disadvantage when you take the final exam. 

Instead of the bookish knowledge, professors in the answer scripts look for what they taught in the classroom. 

If you had gone to class, and you’ve mentioned that thing, you will be at an edge over other students. You will definitely end up scoring high marks in the exam.

Yeah, just like Messi scores goals like a boss! 

Moreover, you will also get debarred from that semester if you do not fulfill the minimum attendance required for sitting in the exams.

Be attentive in class

Physical attendance in the class just won’t help you to score high in exams. Being mentally present and staying attentive will. 

I have noticed this in my classes that students who are responsive to professors score incredibly well in their end-term exams. 

Students who sit on the last bench of the class sometimes flunk in the subject as well. 

No, students on the last benches are not the most creative minds. 

Most of the students spend their time in class using their mobile phones playing games or shopping online. 

I have had a personal experience with this, students around either playing PubG mobile or browsing through Amazon.in. Instead of that, you could browse through LawSikho and see the courses that they provide. Those courses will definitely help you in scoring good marks by giving you insights about the field. 

If you really care about your future, stop using mobile phones in the class and start paying attention to that learned man teaching you.

Be responsive and participate in the class.

Just being attentive and listening to what the professor is speaking will not help your case. You also need to participate in the class by asking questions and clearing your doubts as well. 

You have to keep pinching the Professor. Never refrain from asking any type of question.

Students learn well when they are actively engaged in the learning process. If you’re timid and hesitate in asking questions in class, go to their chambers and ask them there. 

Always make notes

This is also one of the most important things to do while studying for law exams. The content in the subjects is so diverse that you might not be able to remember all of it. Thus, make notes of those things which you think are relevant and will help you in scoring high in the exams.

I’m not asking you to be a nerd of course, but yeah this is the least you could do to help your case.

While in the classroom, it is impossible to jot down everything that your professor is teaching you. 

Also, you’re not Mike Ross that you have a pictographic memory.

Thus, go ahead and note down the important points. For this, you’ll have to be well read. Also, before going for your next lecture study the topics which the professor is going to teach. 

By doing this, you will have a rough idea about what the professor is going to elucidate upon. It will also help you in understanding what the most important points are.

Making notes not only helps you to have a better understanding of the subject but it also helps in figuring out the most important or most asked topic in the exam.

Professors tend to mention the important topics for exams in the classroom. Thus, you’d be able to know those only when you pay attention and make notes.

Also, always make your own notes. Every student has a different approach to make notes. Some tend to include almost each and everything whereas some include only some parts of the lecture. You have to take your own approach of making notes which will be helping you in scoring high in the exams.

You could refer to the courses provided by LawSikho to make your study more efficient. These courses provide insights which are extremely helpful for scoring high marks in the end term exams.

Memorize material weekly

The human brain cannot retain things forever. On average, a human brain can retain material only to a maximum of three days. Thus, you need to go over the material again and again as to retain them.

Remember the famous saying? Rome was not built in a day.

This applies here as well, you cannot score high marks if you do not study continuously.

You’ll be much more successful in exams if you learn and memorize the material each week after you finish updating your notes. If you try to cram over three months’ of study material into a couple of weeks then it will be a problem. You will have a much better grasp of the whole subject and will be able to apply it more efficiently.

Even if it seems boring going over the material again and again, keep doing it because that is how you will be able to score high in exams. 

You will be able to retain things for a longer period of time by following this.

Watching F.R.I.E.N.D.S. or HIMYM all over again will not be boring for you, or will it be? 

Forming a study group

Study groups can be a valuable learning tool. Find and form a study group which has the same interests as you do. 

Study groups are the most infamous study tool. People believe that there is more gossip than studies.

But, when it comes to study-groups, they are more efficient when it comes to learning. 

The reason being sometimes you might not be able to understand a specific part of the textbook. The same part of the textbook might be clear to some other student in the group. 

This becomes beneficial for you as you can approach that student and seek help from him. For example, there is a constitutional law study group and you cannot understand the rules required for interpreting the constitution. You can go ahead and ask questions regarding this to clear your doubt.

When you study by yourself, you will always see the material from only your perspective. Study groups are the best places to find newer perspectives. As you begin listening and start to ask questions, you will start to begin a broader perspective regarding a particular point.

Study groups are very beneficial in terms of removing the monotonous routine of sitting alone and studying at a long stretch. The monotonous study routine has a cascading effect in the long run. Prefer making a study group and see for yourself scoring high in your exams.

Make your case briefs

Sometimes, the case laws may run into hundreds of pages which makes it impossible to remember the whole of it e.g. the Kesavananda Bharati case. 

This judgment runs into 600+ pages and is one of the most important case laws in the arena of Constitutional Law. It is impossible for a person to remember each and every page of this judgment. So, for the purpose of remembering it efficiently, you could make a case brief of that case and note down all the significant legal changes, holdings of the case, and the rationale of the court behind the decision. 

You can also keep a small pocket-sized notebook which has all the most important points of the case.

For instance, when you get a practical approach-based question in the exam paper, you could actually answer those questions supporting them by a case law. 

The judgment, the ratio and also the dissenting opinion if there is any, could be written in the answer stating how your approach is correct. It also depicts how the court has justified the approach as well. This would help you in scoring high marks as your answer has been justified with the supportive case laws.

Thus, make case briefs efficiently as they are very important for a law student.

All work and no play makes Jack a dull boy

Studying continuously without and breaks will have a toll on your mind. Your mind will get saturated and you won’t be able to retain things thereon. Take small breaks and outings during the period of studying to make study time efficient.

Practice past year papers

The best way to score high in exams is to practice the past year papers. Past year papers are available with the library in the respective colleges. Make sure to understand the pattern of the question paper, and also the approach with which the professors make them. 

Oh! Practice makes a man perfect, no other quote better than this.

Apply that approach to your study as well for scoring well in the exams. Practicing past year papers will help you to know the type of questions that are asked and also perfect your skill of writing answers.

Don’t procrastinate

Never procrastinate regarding studying. If you procrastinate, things keep piling up and then, in the end, you’re not able to accomplish anything. The best way to stop procrastinating is to set deadlines for yourself earlier than what your professor provides. 

Voldemort would not have been the greatest magician of dark arts if he would have kept postponing his practice of the dark arts.

Taking the time to do it in advance will save you so much time later.  The euphoria of not worrying about reading or case briefing for class because you already did it is unparalleled. So, stop procrastinating and start working hard.

Get way ahead

One tip that would help a law student is to start reading for the class the week before it starts. This is helpful because you’re really ahead, and you can go with your non-procrastination streak in preparing for the class throughout the semester. Try to stay in a class or two ahead, it will actually provide you with a better understanding of the subject.

Get proper sleep

Sleep is quintessential for scoring high in exams. You need to give your mind the required rest that it needs to function properly again. The effort and time needed for a law degree are entirely different from getting any other bachelor’s degree. 

It requires a lot of patience to survive those five years of law school without going nuts. Thus, for studying and keeping your brain healthy, get a proper amount of sleep.

Time Management

This is the most generic tip where you would have got it anywhere, but it is also the most important thing. You need to be an organizational wizard. You have to learn how to manage your time effectively. 

For instance, think of your day as a 9-5 job if you do not have lectures, study during the gaps.

Revision

Revising the material, again and again, will help you to have control over your knowledge. Sometimes what happens is that if you fail to revise, you may forget one of the most crucial case laws or an important legal point. 

As there are many case laws and points, that it becomes difficult to remember. Thus, revision is the key to success. It will actually take time for you to work out which method is the best for you, but eventually, you’ll figure it out.

Clear your doubts

Sometimes, it gets really tricky to understand a specific provision in the statute. You can go ahead and get your doubts cleared by contacting the lecturer/professor of that subject. Having your concepts clear about that law will help you in the exam later on. A dubious mind will hinder you from scoring high.

Healthy habits

In order to keep your brain healthy, you will need to keep up with healthy habits. Exercising daily and eating healthy food will keep your body in a healthy position. This, in turn, it will keep your brain healthy. 2-minute Maggi noodles is not a healthy choice of food. 

12 AM-midnight snacking is also not healthy, come on eat healthily! 

Also, do not bury yourself in the books. Go out and have a run across the park or start playing a sport at your law school. If you do not have a healthy body, you’ll feel lethargic throughout the day and thus, you will not be able to function properly.

What can you do while answering the questions?

The tips given down below are to be used during the paper writing time. These can be helpful.

Use your reading time wisely

In some law exams, you have an allocated time for reading the question paper. The most important part of the exam is to read the question paper and understand the question. 

If this is fulfilled, you will be able to answer the questions efficiently. Read the question straight, thoroughly and steadily. Just keep reading, it is not unusual to be nervous and not be able to understand a few first lines of the paper.

But, don’t keep on with reading the whole three hours, remember you have to write as well.

Always structure your answer properly

Give a proper structure to your answer to make it easier for the professor to understand. 

State the issues first, then apply the rule of law in the second step. The third step is the applicability of the law to the current facts or situation. Conclude your answer with the conclusion. 

This is popularly known as the IRAC technique.

These steps can also be followed while making your memorials.

Allocate your time during the exam

It is completely illogical and irrational not to allocate your time in a law exam. Always allocate your time according to the marks allotted to the questions. 

So, give more time to the questions which have higher marks and lesser time to the ones with lesser marks. 

Even if you ran out of time and were not able to finish the short questions, you have a chance of scoring higher in the other question.

Decide the question you want to do first

It is not necessary to start the paper with Question No. 1. Generally, it is preferred by students to do those questions first which they know best. 

There might be areas of law that are more difficult to understand, with complicated concepts and inconsistent and uncertain case laws. Strategically, you are more likely to achieve higher marks overall if you leave the easiest question to last. 

Deal with the hardest question first or second. Complete questions that are somewhere in between in difficulty either second or third.

Usage of legal authority

Provide primary legal support for your answer to make it more compelling. A law exam should always have authority in the form of either statute or case law to support every statement of law that you make. In most of the law schools, you need to provide a summary of the case law for supporting your answer. For this, you’ll have to make case briefs efficiently as already mentioned.

And for statues, it is best to write the particular section and the clauses that are applicable in your case.

Use proper language

You should always use clear, concise and comprehensive language. It becomes easier for the professor if the answer is written in clear terms.

Use proper and fully-formed sentences. Use appropriate legal language while writing the paper.

You don’t need to flaunt your highly rich vocabulary in front of the professor.

Avoid legalese. It is unusual for a law student these days to use the stylistic language of law such as “heretofore”, “forethought”, etc. However, it is important to use certain legal terms such as locus standi. It is also crucial to know the meaning of these terms to use them appropriately.

Avoid lengthy answers

It becomes tedious for the professor to check lengthy answers. A law professor on an average has to check almost 100 copies in a go. This becomes really taxing. 

Thus, keep your answers precise. Make use of less superfluous words. Keep your answer specific and to the point.

The professor is looking for certain things in your answers such as the identification of the legal issue, the legal principles and the application of the law to the facts. Also, do not rewrite the facts.

It becomes repetitive. 

Be clear in what you state.

A great law answer demonstrates the proper application of legal reasoning and analysis. You have to clearly explain the approach adopted by you in reaching that particular conclusion.

BE CLEAR! 

Conclusion

It is a well-established fact that for scoring high marks in a law exam, there are no shortcuts. You will have to work day and night for a good score. However, there are certain online courses available on the internet as well which can help you in scoring high. They provide you with practical aspects of the law as well. 

Testimonials

Students from NLSIU, one of the most premier institutions of the country, for scoring high in the exams, say, “The subjects which are application based, you need to read and understand it properly and read extra if it is possible. Also, each and every subject should be considered as legit.”

A student from NLU-O who is one of the toppers of his batch has to say, “One needs to love that subject or produce interest in that. You need to give five to six hours a day of studying to score high. If you’re not able to devote that much time, be attentive in the class, that makes your work easier. Also, make your notes properly as well, and if that is not possible, get the notes from someone else. The professor’s teachings are a boon for scoring high in the exams.”

Aniket Sachan from RMLNLU, one of the highest scorers of our batch says, “You have to study compulsorily for scoring high, there is no escaping that. Just read and keep your concepts and basics extremely clear. Have all the fun that you can have but when you are studying, focus on that. Even if you study for one hour, that one complete hour should be just studying.”

Srijan Somal from RMLNLU, in the top 3 percentile of his batch says, “As I believe, studying for hours at a long stretch without even taking a break and not getting what you’re studying is futile. So, what I do is that I incorporate several breaks in the study hours which make me study more efficiently. In those breaks, I take up activities which I like the most. This helps me in clearing my mind and helps me from getting stressed easily.”

The post How to score high in exams as a Law Student appeared first on iPleaders.

This article is written by Ayushi Dubey, a third-year student of Institute of Law, Nirma University. The article gives a detailed account of John Rawls’ theory of Justice with relevant examples for a clearer understanding. 

Introduction 

An American moral and political philosopher, John Bradley Rawls is known as the philosopher of Liberal tradition. Born and brought up in Baltimore, he was the second son of William Rawls, who was one of the most prominent attorneys of Baltimore. Rawls has published three books, out of which “A Theory of Justice” is the most famous one. The book focuses on the theory of the Original Position in attaining justice. 

In order to understand Rawls idea of justice, we need to have a pretext of the idea of another famous political thinker, Emanuel Kant. Kant says that just laws arise out of the contract. These contracts are not the usual and actual contracts which people make when they come together. These contracts are exceptional in nature. The question is why are they different. Kant says that when different people gather together to make constitutional conventions, then all of them have different interests and demands. Also, people have different bargaining power so, the one with good bargaining power would have heavier say in the contract. Therefore, the actual social contracts do not necessarily be just laws. These contracts will only highlight differences and would be special to them who have more knowledge of law and politics. 

So, this concludes that though Kant is a contractarian he doesn’t trace the origin of any social contract that gives rise to just laws. Which means that Kant’s exceptional contract is a hypothetical contract since it never happened. And therefore, an obvious question arises, “What is the force of a hypothetical contract?” The answer to this question lies in the theory of John Rawls. 

The concept of Veil of Ignorance

Rawls theory of justice is parallel to Kant theory of justice in two ways. Firstly, Rawls, like Kant is also a critique of Utilitarianism. And secondly, like Kant, Rawls also follows the principle of a hypothetical social contract to achieve justice. Rawls, to explain his idea of a hypothetical social contract introduces a device called the “Veil of Ignorance.” 

Rawls says that imagine a situation where people have gathered to decide collective principles of justice to govern themselves. There would be different ideas and suggestions. The idea and suggestion would be affected by the kind of people in the discussion. There would be people who are rich, poor, strong, weak etc. All of them would have different interests which would reflect in this idea. This discussion would give rise to a situation where a compromising idea of justice would be chosen and which would not necessarily serve the purpose. Therefore, Rawls says instead of this, imagine we gather together in an “original position” of equality, where everybody is equal. This equality is assured through the veil of ignorance. The basic idea of the veil of ignorance is that people are behind a kind of veil and without knowing certain particular facts about each other. And by this, nobody would have superior bargaining power in the collective idea of justice. 

Hence, Rawls idea of justice is “a hypothetical social contract, made behind the veil of ignorance in the original position of equality.” 

Moral force behind the Hypothetical Social Contract

The first question that would arise in a mind about Rawls’ hypothetical social contract is “what would be the moral force behind this contract”. There are certain reasons as to why any promise should be kept or fulfilled. In order to abide by a contract, there shall be some force behind it. Similarly, there should be a moral force behind the hypothetical social contract which never happened. To answer this question, we first need to look at the moral force behind the actual contract. What is it that makes an actual contract binding on parties?

There are two ways in which an actual contract generates obligations on the parties in the contract:

1. Consent-based obligation: This points out towards the idea of autonomy. There is involvement of the self in this. If you have consented for a particular agreement then, you have to abide by it. This moral force is self-imposed.
2. Benefit-based obligation: This points out towards the idea of reciprocity. One obliges to fulfil his promise because he has been benefited by the act of opposite party and hence has to fulfil the promise in return. 

But does consent make a contract fair? No, just because someone has consented to the contract that doesn’t necessarily mean that the terms of the contract are fair. Consent might be a result of Undue Influence, Misrepresentation, Fraud or any other form of intentional and unintentional deceive. For example, an old lady consented to sell her property to a man. The price that was decided between the two was half of the actual price of the property. Now, here, though the lady has consented the terms of the contract are not fair since she is not aware of the malice hidden in the deal. In this case, the lady has all the right to end the contract even after consenting. Hence, it is not always necessary that if one has consented for the contract then, he or she has to necessarily abide by it. 

Contrary to this, there is another situation, when a contract is said to take place even if you have not consented for it. A classic example of this could be poor children who start cleaning your car glasses even without your consent. In this situation, you kind of becomes obligated to pay him since you never stopped him while he was cleaning the glass of your car.

Hence, an actual contract derives its moral force by virtue of two ideas:

1. Autonomy- consent based.
2. Reciprocity- benefit based. 

But in real life, an actual contract may fall short of these ideas. The idea of autonomy may fail due to the lack of knowledge among the parties. Whereas, the idea of reciprocity may fail due to the difference in bargaining power. So, Rawls tells us to imagine a situation where the idea of autonomy and reciprocity are not subjected to any conditions or contingencies and are fixed to take place. What would be that contract? Rawls says it would be a Hypothetical Social Contract, made behind a ‘veil of ignorance’ in a state of complete equality. Therefore, according to Rawls principles of justice can only be achieved through this way. Now, the next question would be, what would be the principles of justice?

The Principles of Justice 

Rawls does not give a clear account of what principle of justice should be chosen, but he did talk about the principles which shouldn’t be chosen. 

• Rawls argues that we would not choose the principle of utilitarianism. He says, that we would support individual rights and would not want the majority to tyrannize the minority. We would have a system of equal rights and hence would choose a principle of equal basic liberty. 

What principle would be chosen to govern social and economic inequality?

• Rawls says, to answer this, we need to first agree for equal distribution of wealth and income. This, Rawls says, can be done by agreeing to the qualified principle of equality. Rawls called this principle as the “difference principle”.

Difference principle is based on the idea of distribution. It says that only those inequalities would be considered which are for the benefit of the least well-off. Therefore, all inequalities would not be rejected. If inequality works for the benefit of those who are at the bottom of society then, it should be accepted. 

Rawls Difference Principle in comparison to other rival theories 

According to Rawls, the distribution of income and wealth should not be based upon arbitrary factors which are not in control of an individual. Rather, it should be based upon factors which their own credit. For this Rawls criticised some rival theories. We will consider a common example of a race to understand the difference between all the systems. 

1. Feudal aristocracy: By this Rawls means that the people’s life events are determined by their birth. This may include their place and environment of birth. Birth is a factor which people have no control and hence determining principle on the basis of birth would be arbitrary from a moral point of view. Hence, the result of the race cannot be based upon this system. 
2. Libertarian system: Libertarians believe that everybody should be given equal opportunities to show their talents regardless of their birth. There shall be equality of opportunities in every aspect and all should have the equal right to strive for work of their choice. But Rawls could not agree to this system as well. He opined that if the race you give equal opportunities to everyone then, those who have started from a lower point would never be able to reach equal to others. Therefore, in the race, when people start from different starting points then their endpoint should also be different. 
3. Meritocratic system: In the meritocratic system all are brought on the same starting point i.e. everybody is given equal facilities and privileges to move towards their end goal. For example, providing similar education to all. Then, the race would be fair. But Rawls is not satisfied with this system also, he argued that even if we all start from the same starting point, with the same facilities and towards the same goal then also, there would be some people with extraordinary talents and learning capacities which will help them to do better than the rest of the people.

For example, in a race, the best athlete would win. Therefore, the meritocratic system fights against social barriers but can not overcome the biological barriers that come in between. So, Rawls thinks that for removing the moral arbitrariness, we would require a system which goes beyond this. Many answered that the only way to remove this would be to handicap the best runner. But Rawls says that even this can’t be done since this would dissolve the very purpose of the competition. 

So, the question remains what can be done to remove the moral arbitrariness without dissolving the purpose of the competition? 

Rawls answered this question through his difference principle. According to this principle, you encourage those with extraordinary talents, good fortune and privileged conditions. But you also take into account those who don’t have any of these. You will establish a principle which would benefit people from their luck in their genetic lottery, their place of birth, their talents but only on the terms that it works for the benefit of the least well off. The terms for the fruits of the race would be different for all and hence the result would be based upon the efforts put and the conditions behind those efforts. 

So, for example, Bill Gates can earn whatever money he wants but only on the condition that a part of his income would, in the form of taxes, benefit those who lack the skills that he is blessed with. Rawls further says that those in a better position can never think that they deserve what they have. “Those who have been favoured by nature, whoever they are, may gain from their good fortune only on terms that improve the situation of those who have lost out.” You set up a system where everybody, including those at the bottom, is benefitted by the talents of those who are lucky.

Conclusion 

John Rawls gives account of a system which benefits all sections of the society, equally. He, through his theory, proposed a system where laws and principles of justice are made by the conscious effort of the people who would be governed by those laws and principles. His idea of the veil of ignorance points out to the idea of equality, a system where each individual has equal participation in the making and where there are no biases involved. Further, through his difference principle, he had taken care of those who need special attention after the system is made. His idea is one such ideal which can be chosen to protect the rights of minorities and the least well off. 

References 

1. https://www.britannica.com/biography/John-Rawls
2. https://plato.stanford.edu/entries/rawls/
3. https://owlcation.com/social-sciences/Key-Concepts-of-the-Philosophy-of-John-Rawls
4. https://scholar.harvard.edu/sandel/justice 

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The article has been written by Pooja Kapur, a 5th-year student from Amity Law School, Noida. In this article, she has given the overview of constitutional provisions pertinent to environment protection in India.

Introduction 

A rapid increase in global warming, deforestation, air, water and other forms of pollution is posing a great threat to the environment and its living beings. The degradation of the environment through a plethora of activities carried on by individuals is detrimental to the health of all the living beings, including human beings, plants and animals.

Fundamental status has been given to the concept of protecting the environment as it is essential to promote human health to have a healthy environment and affords a right to a healthy environment to all. Preserving the environment protects the health of every individual and a healthy individual promotes the development of the environment which is the need of the hour.

To live in an environment which provides a pollution free atmosphere is not only a basic human right but also enhances human dignity. Principle of sustainable development is one such approach which if followed can fulfil the basic human right of having a dignified life.

Law acts as a means of regularizing the human conduct and provides the smooth functioning of society. Since the word ‘Environment’ did not find its existence in the Indian Constitution, it became essential to insert provisions in the constitution as it is the supreme law of the land and such insertion thus, would prove to be fruitful to protect the environment from exploitation. 

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The preamble of the constitution and environment protection

The Preamble of Indian Constitution begins by stating that people of India solemnly resolve to constitute India into a socialist country. This indicates that our Constitution affords us with the socialist pattern of society. Thus, aiming at dealing with and solving social problems first, rather than concentrating on individual problems. Here, what is in the interest of the public is of utmost importance.

Presence of pollutants in the atmosphere in excess of the prescribed limit is one of the major social issues to be given due regard. It is not only exploiting the health of living beings but is also degrading the quality of the environment in each day.

The basic aim of Preamble is socialism and it is the responsibility of the state to fulfil this by taking stringent measures to make the environment free from all forms of pollution. The obligation of the state further includes providing not only a pollution free environment but also a decent standard of living to all living beings. 

All the citizens of India intend to secure freedom which also includes securing justice. Justice can be interpreted and sought in many forms. Thus, citizens have a right to environmental justice. Increasing degradation of the environment is posing a great threat to the lives of living beings and hence, protecting the environment is becoming a crucial in each day of life because ignoring it would pose a serious threat to the environment at large.

The state has the duty to comply with all the provisions and since India is declared to be the Democratic Republic, the citizens of this country hold a very essential right to have looked upon the conduct of the state and provisions being taken by the government from time to time to restore the environment.

Legislative powers and matters of  environmental protection 

Under the Indian Constitution, there are three types of lists, namely- Union, state and concurrent. 

Powers of the government are shared at the state and union level. Central government deals with the matters of union list, where state government deals with the matters of state list. Thus, the exclusive power to legislate the matters of union list, which is the list I, is with the Parliament. State list which is the list II covers matters like, sanitation, the health of the public, drainage, supply of clean water etc. It covers matters relating to defence, military, atomic energy, regulation of oil fields, air traffic etc.

Power of dealing with the matters of the concurrent list (list III) is shared between both the state and central government. It covers matters like protection of forests, wildlife, conserving mines, population control etc. But in the instance of conflict, the decision of the central government prevails. 

The legislative and administrative relations between the central and the state government are specifically dealt in with the part XI of the Constitution. The power to make rules for the whole country is with the Parliament of the country, while for that of the state lies with the state government of every state.

In an instance of passing state laws subsequent to the central laws, for it to prevail, requires a Presidential assent first as in accordance with Article 254.

In the situation of national emergency, Parliament has the power to legislate the state subjects also. The division of these legislative powers is essential to make provisions which can deal with environmental problems. 

There are various projects taken up by the state to develop the environment but they might pose a serious threat to the environment. In such circumstances there is always a conflict between development and environment protection and such matters are dealt through the Environment Impact Assessment (EIA). This has also been recognized by the planning commission. 

 International Environmental Agreements

A plethora of international agreements dealing with environmental protection have been made and India has been a signatory to it. Because at the Stockholm declaration in 1972, it was held that the world has one environment. India being a signatory to such international pacts is under an obligation to translate those provisions and follow them in the country. This has been clearly stated in Article 51(c) of the Indian constitution that state shall foster respect for international law and the obligations of the treaties.

Another essential provision dealing in protecting the environment is Article 253 of the Constitution which empowers the Parliament of our country to make laws which can be applicable to the whole or any territory of the country for implementing any agreement or convention signed with the other country or countries.

Parliament can further legislate to implement decisions taken at any conference on an international level. Any provision made in the context of environmental protection in accordance with Article 253 read with articles 13 and 14 cannot be questioned before the court of law on the grounds of no legislative competence.

With the use of this power, it is pertinent to know that Parliament has enacted Air ( Prevention and Control of Pollution) Act 1981, and Environment Protection Act, 1986.  It has been clearly stated in the Preamble of these acts that the purpose of their enactment was to implement the decisions taken at the United Nations Conference on the Human Environment, held at Stockholm in the year 1972. 

In Vellore Citizens’ Welfare Forum v. Union of India, the supreme court held that it is essential to incorporate the international customary laws in the municipal laws, provided they are not contrary to them. It is an accepted principle of law. Thus, it was considered essential to follow international laws by the domestic courts of law.

Obligation of State and Environmental Protection

The authorities are under the obligation to follow the law and regularize the conduct for the benefit of the people who have elected them. Article 47 puts an obligation on the state that it shall regard the raising level of nutrition and standard of living of its people. Also, the primary duty of the state shall be to improve public health. It is the responsibility of the state to prohibit except for medicinal purposes, the consumption of alcohol and drugs which can be injurious to the health of the living beings and pose a great threat to their lives.

From the word “responsibility” it can be interpreted that state shall take effective, adequate and necessary steps to improve the health and standard of living of all and promote awareness in the context of environmental protection. In the environment development projects cannot be taken up by the individuals which harm society as a whole. Thus, the state needs to keep a stringent check on these activities and projects. 

There have been various reasons due to which level of pollution in the environment is constantly increasing. For eg., water pollution is commonly caused due to the draining of impure water in the rivers and which not only pollutes the natural resource of the country but affects the health of citizens. This lead to the urgent need of making provisions to obligate the state to preserve and protect the environment. 

In the case of Hamid Khan v. State of Madhya Pradesh, the state was negligent to supply water from the handpumps, colossal damage was caused to the citizens, which affected their health massively. Hence, due to this gross negligence on the part of the state, it was held that the state failed to perform its basic duty.

In the year 1976, the constitution was amended. With this amendment, Article 48-A was inserted in the constitution with the aim to afford better provisions so as to preserve and protect the environment. The provision of this article imposes the duty on the state to protect and improve the environment and safeguard the forests and wildlife of the country. The word “Environment” has been interpreted widely in this article. The state shall not only play a role of being protectionists but also enact adequate measures for improvement of the environment.

Every natural resource is interconnected with other natural resources of this country. Forests are directly linked with providing pollution-free air, helps in reducing global warming and is also connected with water resources. They help in maintaining the ecological balance. Thus, this resource is crucial and hence, its protection is equally important to avoid atmospheric pollution. Hence, the specific insertion of this section is justified.

Obligation of citizens and environmental protection

The duties of the state in protecting the environment are basically the rights of the citizens. The concept of rights and duties respectively, co-exist. They are interconnected. If citizens have the right to a decent standard of living and a pollution free environment, then at the same time they are obliged to protect it and not carry on activities which prove to be dangerous for the society at large and all other living beings.

The concept of rights was quite prevalent in comparison to the concept of duties prior to the 42nd amendment of the constitution. More importance was attached to rights than duties by the supreme law of the land. But the drafters of the constitution felt that it is necessary to shoulder the burden of protecting environment between both the state and the citizens. Also, citizens were more concerned with their rights and started neglecting their duties. Thus, part IV–A was inserted by The Constitution (Forty Second) Amendment Act,1976.

Part IV-A of the constitution deals with Fundamental Duties. Article 51-A(g) specifically deals with the fundamental duty of the citizens to protect and improve the natural environment which includes forests, rivers, lakes, wildlife and to have compassion for living creatures. Like the duty of the state, it is the duty of all the citizens of not only protecting the environment but also taking measures which are adequate enough to improve the environment.

Nature has gifted us with the resources and a pollution free environment and thus, this casts a duty upon the citizens to keep these resources in the same condition for the future generations. Hence,  the principle of intergenerational equity plays a major role in environmental protection by sustainable use of natural resources.

In Kinkeri Devi v. State, Himachal High Court  that in Article 48-A and Article 51-A(g) it was held that it is both constitutional pointer to the state and  the constitutional duty of the citizens not only protect the environment but also improve it and to preserve and safeguard the forests, the flora and the fauna, the rivers and the lakes and all other water resources of the country.

The negligence to abide by the pointer or perform the duty is nothing basically the straight betrayal of the fundamental law of the land.

In the case of betrayal, the courts cannot remain a silent spectator. A court can intervene at any time to make the implementation of the provisions by issuing writs, orders and directions as it thinks fit and necessary.

In L.K Koolwal v. State of Rajasthan and Ors, the municipality of Jaipur was being negligent in carrying on its basic duty of maintaining the hygiene of the state. This caused acute sanitation problem thereby leading to the to have hazardous effects on the lives of the people of the state. Mr Koolwal along with other residents moved an application under article 226 of the Indian constitution before the high court highlighting the gross negligence of the municipality.

While construing the true scope of Article 51-A  in this case the court explained that this article is not only a duty but is aright created in favour of the citizens to have the locus standing to move to the court to have a check on the conduct of the state activities, whether the authorities are performing their duties or not in accordance with the fundamental law of the land. The right to move to the court is granted to citizens for the proper enforcement of the state’s duties and of their relevant departments, local bodies etc.

Being negligent in maintaining hygiene and sanitation standards slowly affects the lives of living beings and poisons the environment at large. This infringes the fundamental right of life of the citizen as provided under article 21, which also extends to have a decent standard of living and a clean and safe environment and thus, citizens protecting their fundamental right to life from being infringed is justified. Thus, the court directed the municipality to remove the dirt and all the filthy material which was posing a great threat to the lives and health of the people.

In another case of Goa Foundation v. the State of Goa, the petitioner was a society registered under the rules relating to registration of societies and its members were the citizens of India who had a fundamental duty to protect and improve the environment, lakes, forests, rivers  and have compassion for living creatures as laid down under article 51-A . The question of whether the society had locus standi to move to the court or not was raised before the court.

The answer to this question was given in a very affirmative manner by the court and was held that the society had the same fundamental duty. Petitioner was held to have a locus standi to move to the court to not only prevent degradation of our ecology but also form and implement provisions for the purpose of rehabilitating the ecology thereby maintaining ecological balance.

Public interest litigation was filed before the high court by five persons, who were residents of a specific area, in the case of Sitaram Champaran V. State of Bihar to seek the directions of the court for the closure of the tyre retreading plant, in the interest of public health. This plant was situated in the residential area and was emitting carbon dioxide along with other obnoxious gases causing harm to the environment. The respondents were directed to wind up the plant in the interest of environmental protection and were considered a fundamental duty under Article 51-A. 

Right to life and Environment Protection 

Article 21 of the constitution provides for the fundamental right of life. It states that no person shall be deprived of his right to life or personal liberty except in accordance with procedures established by law. The words “except in accordance with procedures established by law” can be interpreted to mean that this provision is subject to exception and is regulated by law which varies from case to case.

Since the provision begins with the word ‘no’ that is the reason it has been given a negative impact. But post-Maneka period this provision has been given a positive interpretation and positively casts a duty on the state to enforce the due implementation of this law.

Right to life includes the right to have a dignified life and also the bare necessities of life like food, shelter, clean water and clothes. The right to live extends to having a decent and clean environment in which individuals can live safely without any threat to their lives. An environment shall be free from diseases and all sorts of infections.

This is crucial because the right to life can be fulfilled only when one lives in a clean, safe and disease-free environment, otherwise granting such right would prove to be meaningless. This aspect of Article 21 has been evidently discussed in the case of Rural Litigation and Entitlement Kendra, Dehradun v. State of Uttar Pradesh, where the petitioner along with the other citizens wrote to the supreme court expressing their views against the progressive mining which denuded the Mussoorie hills of trees and forests and soil erosion. This lead to having an adverse effect on the environment and resulted in landslides along with blockage of underground water channels.

The registry was ordered by the Hon’ble supreme court to consider this letter as a writ filed under article 32 of the Constitution.

An expert committee was appointed in this behalf by the Supreme Court to advise the Hon’ble court with some technical issue. On the basis of the report provided by the expert committee, the court provided the limestone quarries to be closed because it was infringing the right to life and personal liberty. Quarrying operations lead to ecological degradation and air and water pollution, which affected the lives of the people to a great extent.

In L.K Koolwal v. State of Rajasthan and Ors, Rajasthan High Court held that maintaining the quality of the environment, sanitation and health is covered under the purview of Article 21 of the Constitution. Because non-compliance to do so can adversely affect the lives of many citizens and slow poisoning along with reducing the life of a citizen. 

In Charan Lal Sahu v. Union of India, it was held that the duty of the state is to take adequate and effective steps for the enforcement and protection of Constitutional rights guaranteed under Article 21, 48-A and 51-A(g). 

In M.C Mehta v. Union of India, due to stone crushing activities in and around Delhi was causing a huge problem of pollution in the environment. The court was conscious of the inevitable consequences and the ecological problems caused due to the industrial activities in the country. In the name of environmental development, it cannot be permitted to degrade the quality of the ecology and increase different forms of pollution to the extent that it becomes a health hazard to the lives of all the citizens. It was further held that citizens have a right to fresh air and have a pollution-free environment in which they live.

Further, the scope of article 21 was broadened by the judiciary to include under its purview the right to livelihood as well. It includes the right of citizens to earn their livelihood along with the right to life. The wider interpretation of this article has proved to be beneficial in keeping a strict check on the conduct and actions of the government in the context of measures taken by the authorities to protect the environment. It is also beneficial in keeping a check on the activities of the state which can have a massive impact on the environment, health of the individuals and threat to the livelihood of poor. 

Indian judiciary has been very conscious while dealing with the matters of development and the environment protection to avoid the conflict between the two aspects.

In the famous Taj Mahal Case, ample of industries near Taj Trapezium Zone were using coke and coal as an industrial fuel. These industries were ordered to be relocated to an alternative site as provided under Agra Master Plan. The rights and duties of the workmen in the industries were also specified by the court following the principle of sustainable development.

Right To Equality and Environmental Protection

Equality before the law and equal protection of the law has been granted under article 14 of the Constitution. This fundamental right impliedly casts a duty upon the state to be fair while taking actions in regard to environmental protection and thus, cannot infringe article 14. In cases of exercise of arbitrary powers on behalf of the state authorities, the judiciary has played a strict role in disallowing the arbitrary sanction. Use of discretionary powers without measuring the interest of the public violates the fundamental right of equality of the people.

In Bangalore Medical Trust V. B.S Muddappa, an improvement scheme was prepared by the City Improvement Board of Bangalore for the purpose of extending the city. A low-level park was to be developed for which an area was kept under this scheme. But under the direction of the chief minister the area kept for the low-level park was to be converted into the civic amenity site where the hospital was to be constructed. As soon as the construction began, the residents moved to the high court.

The petition moved in by the residents was allowed by the high court. But in appeal to the supreme court, the appellant contended that the power to allot sites is completely a discretionary one and the developing authority has the right to allow the site for making hospital rather than a park. And thus, the diverted use of the land was justified in the eyes of the appellant.

By explaining the importance of open spaces and parks in the development of urban areas, the supreme court rejected the appeal. The Hon’ble court further stated that the open spaces, recreation, playing grounds and protection of ecology are the matters of vital importance in the interest of public and crucial for the development. Keeping open spaces for the interest of the public is justified cannot be sold or given on lease to any private person solely for the sake of monetary gains.

Freedom of Speech and Expression and Environment 

Right of speech and expression is a fundamental right expressly mentioned in article 19(1)(a) of Part III of the Constitution. There have been a number of cases where people have approached the court through the way of speech and expressing themselves by writing letters like that in the case of  Rural Litigation and Entitlement Kendra, Dehradun v. State of Uttar Pradesh where they have expressed the violation of their right to have a clean and safe environment and a right to livelihood.

In India, the media has been playing a crucial role in moulding the perception of people in issues relating to the environment. Thus, Article 19(1)(a) is interpreted to include the freedom of the press as well. 

Freedom of Trade and Commerce and Environmental Protection 

All the citizens of India have a fundamental right to carry on any profession or business, trade or commerce at any place within the territory of India under Article 19 (1)(g) of the Constitution. But this is not an absolute right and thus, has reasonable restrictions to it. Article 19(6) of the Constitution lays down the reasonable restriction to this fundamental right to avoid the environmental hazards.

The purpose is to avoid the ecological imbalance and degradation of the atmosphere in the name of carrying on a trade, business, occupation or carrying on any profession. Thus, in the name of business or profession, one cannot cause harm to the environment.

In M.C Mehta v. Union of India, AIR 1988 SC 1037 certain tanneries were discharging effluents in the holy river Ganga which was causing water pollution. Further, no primary treatment plant was being set up despite the constant reminders. It was held by the court to stop the tanneries from working because the effluents drained were ten times more noxious as compared to the ordinary sewage water which flows into the river.

The court ordered while directing tanneries to be stopped from working which have failed to take necessary steps as required for the primary treatment of effluents from the industries. The court while passing this order contended that, though the court is conscious about the unemployment that might usher due to the closure of the tanneries but health, life and ecology holds greater importance in the eyes of law.

In M.C Mehta v. Union of India, 1994, it was directed by the Supreme Court that the industries who did not comply or adhere to, with the prior direction of the Hon’ble court regarding the installation of air pollution controlling system should be closed. In this case, the supreme court laid down its greater emphasis on Article 19(6) of the Constitution.

In S. Jagannath v. Union of India , sea beaches and sea coasts were considered to be the gifts of nature, by the Hon’ble supreme court and any such activity which pollutes these natural resources or the gift of nature cannot be permitted to function. In this case, a shrimp farming culture industry by modern method causing degradation to the ecosystem, discharge of polluting effluents, polluting the potable ground-water and depletion of the plantation. All of these activities were held to be violative of constitutional provisions and other legislation dealing with environmental matters, by the court.

The court further held that before the installation of any such industry in a fragile coastal area it is essential for them to necessarily pass the strict environmental test. In other words,  reasonable restrictions can be laid in accordance with Article 19(6) of the Constitution.

Role of the Supreme Court in environmental protection 

In lieu of the wide range of cases dealt by supreme court with regard to environmental protection, a plethora of judgements have been passed which have laid down various principles to be taken care of before indulging in any activity which might pose a threat to the environment. Also, different aspects of the environment have been highlighted by giving them immense importance like natural resources. Air and water have been given the status of the gift of nature and inalienable part of life. 

While incorporating the important features to the fundamental right provided in Article 21, certain principles were ascertained by the supreme court to be necessarily ensured for the protection of the atmosphere, which are as follows- 

Polluter Pays Principle 

The basic concept behind this principle is that “ if you make a mess, it becomes your duty to clean it up”. The polluter pays principle does not lay emphasis on the ‘fault’ rather on the curative approach to repair the ecological damage caused by any person or group of persons. This principle was for the first time referred to in the year 1972 in the OECD Guiding Principles concerning International Economic Aspects of Environmental Policies. 

Further, this principle was also applied in the case of Vellore Citizens Welfare Forum v. Union of India. In M.C Mehta v. Union of India and Ors( Calcutta Tanneries Case), the polluter pays principle was applied where industries were directed to be relocated and these industries were ordered to pay 25% of the cost of the land. 

The industries which did not pay the cost of the land and did not comply with the direction of the court were further directed to be closed. The Hon’ble court again restored to the directions which were earlier given in the Vellore Citizens Welfare Forum v. Union of India. 

Precautionary Principle

Principle 15 of the Rio Declaration provides for the precautionary principle. According to this. In order to protect the environment, it is essential to apply the precautionary principle. This principle means that where there is a chance of great threat or irreversible damage to the environment, lack of full scientific certainty cannot be taken as a reason of not issuing the cost-effective methods. 

In M.C Mehta v. Union, popularly known as Taj Mahal Case, was another judgement of the court passed on the basis of the precautionary principle. In this case, public interest litigation was filed alleging the degradation of Taj Mahal due to environmental pollution. Court referred the case to the expert committee to seek technical on the matter. On the basis of the report of the committee. This monument is a monument of international repute. The industries located in the Taj Trapezium Zone(TTZ) were using coke/coal as the industrial fuel, thus emitting effluents. 

It was held by the court that, the Taj apart from being a cultural heritage, is also an industry by itself and thus, it was directed to all the industries operating in TTZ to use natural gas as a substitute for coke/coal as an industrial fuel and if they cannot be restored to it for any reason, they must stop functioning and they may relocate themselves as per directions of the .`The industries on the relocation in new areas were to be given the incentives. 

The doctrine of Public trust 

This doctrine rests on the principle that certain resources which are required for fulfilling the basic amenities of life like air, water etc hold great importance to the people at large that it would be completely unjustified to make these resources available to the private ownership. Since these resources are the gift of nature that is why they should be made freely available to every individual of the society irrespective of the status in life. The doctrine obliges the government to protect resources for public use rather than being exploited by a private person for making economic gains. 

Thus, commercial use of natural resources is completely prohibited under this doctrine. For the effective and optimum utilization of resources, this doctrine mandates an affirmative action of the state authorities. Also, citizens are empowered to question the authorities if resource management is ineffective. 

In M.C Mehta v. Kamal Nath, 1997, the state government granted a lease of riparian forest land to a private company having a mote located at the bank of river Beas, for commercial purposes. The hotel management was intervening with the natural flow of the river by blocking the natural spill channel of the river. This was questioned before the court through public interest litigation. The court explained the scope of public trust doctrine and observed that the doctrine rests on the primary principle that certain resources like air, water, sea and forests have great importance to people and it would be unjustified to make them subject to the private ownership. 

Sustainable Development 

The term sustainable development was for the first time used at the cocoyoc declaration. Thereafter it received further impetus through the Stockholm declaration where it was held that the world has just one environment and the man is both the creator and moulder of the environment. Further, in the Brundtland report, the definition of sustainable development was given according to which it is the optimum utilization of resources for both the present and future generations. Thus, intergenerational equity is a must. Resources have to be protected for both the present and future generations. 

Conclusion 

This article begins with laying down emphasis on why environmental protection is necessary, why did a need arise to protect the environment followed by the causes of ecological degradation in the introductory part. Various reasons have been considered to be a major factor in polluting the environment and affecting the lives of the people and posing a great threat to other living beings of the country. 

In earlier times, the word “environment” was not specifically mentioned in the Constitution and  no specific provisions were laid down in the Constitution to deal with the environmental hazards and to regulate the activities of the people who thereby were contributing a huge part in degrading the quality of the environment in the name of exercising their fundamental rights. The constitution is the supreme law of the land. Thus, inserting the clauses to specifically deal with the environmental issues would prove to be beneficial for the environment. 

42nd Amendment to the Indian Constitution proved to be a solution for this major health hazard. The provisions in the article begin with highlighting the provisions from the base. Starting from the words democratic, socialist and republic used in the Preamble to the Constitution and its connection with the protection of the environment. Followed by duties of the state to protect the environment as being an authority elected by the people they are obliged to work for the people. Then the concept of rights and duties has been dealt with, wherein the right of a citizen to have a healthy environment has been mentioned and also the duties of citizens towards the environment in which they live to protect and preserve it. 

A number of landmark cases have been mentioned to make the concept even more clear and how this plethora of judgements have clearly mentioned the importance to protect this environment. It can also be concluded that the supreme court has played a major role in laying down the environmental jurisprudence. Also, fundamental rights are essential and cannot be infringed upon but in accordance with the reasonable restrictions can be dealt with. 

To have a healthy environment is so essential because a healthy environment promotes good health of the greater number which leads to less diversion of resources or spending of the huge amount of money on the treatment of the people. In these situations, the poor suffer the most as they do not have enough resources to afford their health issues. Moreover, healthy beings are valuable assets for the country who when healthy and fit can contribute much towards the economy and develop the nation thoroughly by paving a path of progress, generating employment and increasing the GDP.

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This article is written by Sarthak Gupta, a  student of the Institute of Law, Nirma University. This article discusses provision related to the execution of capital punishment in India and an alternative form of execution that may be used in place of hanging.

Introduction 

 Execution of capital punishment in India is basically done through two methods.

• Hanging by the neck until dead 

It is provided under Section 354(5) of CrPC, 1973 and Army Act, Air Force Act and Navy Act. 

• Being shot to death

It is provided under the provision of the Army Act, the Air Force Act and Navy Act for some specific offences. 

Execution of capital punishment under the Code of Criminal Procedure, 1973, and the prison manual

Death sentence in India, under the Code of Criminal Procedure, 1973 is done through hanging the person till death. Along with  Section 354(5) of the CrPC, 1973 execution of the death sentence is done through the provision of jail manuals of the respective states. Some of the general provision mentioned in the  Jail manual of most of the states are as follows.

Diet schedule

An ordinary diet of a labouring convict is given to the condemned prisoners. Before giving any food to condemned prisoners, food should be tested by the deputy superintendent, assistant superintendent or medical subordinate and food should be delivered to the convict in the presence of deputy superintendent, assistant superintendent or medical subordinate. 

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Time of execution 

Generally, execution of Condemned prisoner takes place early in the morning before it is bright.   time varies from season to season in different states. Jail Manual of Punjab and Haryana, for instance, provides following time.

Solitary confinement 

 Condemned prisoners should be put in solitary confinement under a charge of a guard, day and night. He should be allowed to meet or communicate with only those people who are authorized by the superintendent.

Regulation regarding rope to be used 

1. A manilla rope which is of one diameter shall be used for the execution. It should be 19 feet in length, sufficient tensile and has strength to bear a weight of 280 lbs with 7-foot drop and capable of easily passing through noose ring. 
2. At least two such kinds of rope should be available at the jail where such execution is going to take place.
3. The ropes shall be tested in the presence of superintendent, at least a week before the date fixed for the execution
4. After testing it should be locked in a place of safety.
5. An evening before the execution it should be checked to see that it has not received any injury after the test.  

• Condemned prisoner on his admission in prison should be checked carefully and any item that may be considered as dangerous or inexpedient shall be taken from him. Before putting him in the cell, the cell should be carefully examined to ensure that there is nothing dangerous which may be used by the person as a  weapon or instrument to commit suicide. 
• When the door of the cell in which the prisoner is kept, is opened his hand should be handcuffed and if that person declines to handcuff his hand at least three members of the establishment shall be present there. The locks of the cell in which he is kept shall not be opened by any keys other than the specific key of his cell.
• The body of such condemned prisoner should remain suspended half an hour and shall not be taken down until the medical officer declares him life extinct.

Executions in accordance with the Army Act, Air Force Act, and Navy Act

The Air Force Act, Army Act and Navy Act provide for the execution of the death sentence in two ways. The first way is hanging by the neck until death and the second way of being shot to death. For instance, section 34 of the Air Force Act, 1950 empowers the court-martial to impose the death sentence for the offences which are mentioned in section 34(a) to (o)

Section 163 of the Air force Act provides that according to the discretion of court-martial accused can sentence for capital punishment either by hanging or by being shot to death. The provisions of the Army Act, 1950(Chapter VII ), The Navy Act 1957(Section 147) are similar in nature to that of `The Air Force Act, 1950 providing for the option of the execution of the capital punishment by being shot to death and hanging by the neck till death 

Execution of capital punishment by Hanging: A need for change

The right to die by a dignified procedure of death is a fundamental right of a person. In  Deena v. Union of India (1983)4 SCC 645, the Supreme Court stated that execution of capital punishment should satisfy the following criteria.

1. It should be as simple and as quick as may be  possible 
2. It should bring immediate unconsciousness of the person passing quickly into the death 
3. It should not involve any kind of mutilation.

Further, a resolution passed by the United Nations Economic and Social Council states that when capital punishment is executed, it should be carried out with the minimum possible suffering 

In  execution of death sentence by hanging the condemned prisoner till death, a prisoner is made to stand on a trapdoor, and when the trap is released he falls several feet until stopped by the rope tied around his neck , this result in breaking of the neck of the person but many time when neck does not  break the prisoner strangles to death.

In the case, if the drop is too short, the prisoner dies of strangulation( slow and agonizing death) and if the drop is too long, the prisoner dies of decapitation (complete separation of the head from the body).

In the words of Warden Duffy of San Quentin, a high-security prison in the USA,

“The horrifying experience for the condemned prisoners actually starts a day before the actual hanging take place. He is weighed, measured for length of the drop to assure breaking of the neck, etc. Many times when the neck does not break prisoner  strangles to death and his eyes pop out, his tongue swells and stick out from the mouth and he discharges urine and faeces”

Justice Bhagwati in his dissenting judgment in the case Bachan Singh v. the State of Punjab (1982) 3 SCC 25 described hanging by rope as barbaric and inhuman as entailing physical pain and agony. Further while hearing a PIL  filed by a lawyer regarding the right of a condemned prisoner to have a dignified mode of execution former Chief Justice Dipak Misra said legislature shall look at changing the law so that a convict, facing the capital punishment, dies “in peace, not pain”.

While giving a dissenting judgment Justice Egonda Ntende of the Supreme Court of Uganda pointed out in Attorney General v. Susan Kigula & 416 others [2006] various reason why hanging should be considered cruel and inhuman treatment.

•  The wrists and ankles of the prisoner are tied to restrain him.
• The prisoner cannot react to pain and feeling of asphyxia, by the usual physiological responses of crying out or moving violently.
•  The person hanged often sweats, drools, the eyes bulge and defecates.

What are the other options available for executing capital punishment 

If not the Hanging then what? Over the years many kinds of methods have developed to give capital punishment, some of those popular methods still practised are as follows.

Beheading

This method usually involves chopping off the person’s head with an axe or sword. This method was quite popular in England and Germany in the 16th and 17th centuries.  In 1747 the last beheading was done in the United Kingdom. Nowadays this method is not generally used by countries around the world except a few countries like  Iran, Saudi Arabia, and Yemen, Qatar. The judiciary in various judicial pronouncements and the UN has also ruled it to be one of the farcical and an arbitrary method of capital punishment.

Gas chamber

In this method of execution, a prisoner is put in an airtight chamber and then after a signal, the executioner opens a valve which allows hydrochloric acid to flow into a pan. After another signal sodium cyanide crystals are dropped which produces hydrocyanic gas. Hydrocyanic destroys the body’s ability to process haemoglobin.

Nevada was the first state to legally allow the use of gas chambers to execute the prisoners and at the present seven states in the  USA i.e, Arizona, California, Wyoming, Oklahoma, Missouri, Alabama allows the use of this method. 

Human Rights Committee held in Ng v. Canada, Communication No. 469/1991 that execution by gas asphyxiation amount to cruel and inhuman treatment. A national court in the USA held in  Fierro v. Gomez, 865 F.Supp. 1387 (N.D. Cal. 1994), that execution by gas asphyxiation is a  cruel and unusual form of punishment. This method is also expensive and cumbersome.

Electric Chair

In this method, a person is strapped to a specially built chair and a jolt is given to him. The intensity of jolt varies according to the weight of the person. Two countries that have ever used this method are the United States and the Philippines. However, the Philippines replaced this with the death squad in 1976. In U.S.A currently, 9 states allow this method.  

The Nebraska Supreme Court in State v. Mata, 275 Neb. 1 N.W.2d 229 (2008) described the electrocution method to give capital punishment as cruel and unusual.  

Stoning 

Stoning basically involves throwing stones on the person until his death. Countries like Indonesia, Iran, Nigeria, Pakistan, Saudi Arabia, UAE, and Yemen allows the use of it. 

The United Nations Human Rights Commission pointed out that execution by stoning was a “particularly cruel or inhuman means of execution” (Resolution 2005/29: The Question of the capital punishment, para. 7(i)).

Lethal injection

In this method, condemned prisoners are injected 3 different types of drugs in lethal quantity. First Sodium Thiopental is injected, to let him fall into a deep sleep. Then after it  Pancuronium Bromide, a muscle relaxer, is injected, it causes the inmate to stop breathing because of paralysis of the diaphragm and lungs. Finally, Potassium Chloride is injected which stops the heart. This method, of all those available, appears to be the quickest and least painful.

This method is the most common form of execution in the U.S.A where most of the execution is done through this method only. Out of  749 executions in the USA up to the year 2000, 586 out of lethal injection. In Baze v. Rees 553 U.S. 35 (2008) the Supreme Court of USA  held that execution of capital punishment through lethal injections does not amount to cruel and unusual punishment under the Eighth Amendment.

Law Commission of India conducted a survey in the year 2003 among judges where 80% of the judges suggested that administering the lethal injection should be the other mode of execution of death sentence in India.

Law Commission of India pointed out in its 187th report that there is a significant increase in the number of countries which have adopted the method of execution by lethal injection.

Comparison of death by hanging with death by lethal injection  

Conclusion

The author would like to conclude by saying that injection is the most acceptable and humane method of sentences and there is a need to bring a change in the present law regarding the execution of the capital punishment in India. The lethal injection should be provided as an alternative mode of execution of death sentence along with the existing mode of execution of as provided in section 354(5) of the Cr.PC, 1973, Army Act, Navy Act, and Airforce Act.

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This article is written by Arkodeep Gorai, who has given a brief overview of jurisprudence in the field of law.

Introduction

Jurisprudence helps a person to understand the deeper meaning of the law. Jurisprudence is an integral part of the law which is based on theories and various analysis. Jurisprudence talks about the relationship of law with other social sciences, society, man and nature.

Meaning

Jurisprudence means the study of law in a logical and philosophical manner. The word Jurisprudence has been originated from the Latin word Juris prudentia which can be broken down into two parts, and that is juris which originated from the word jus which means law and the word prudential which means prudence, forethought or discretion.

Jurisprudence can also be referred to as a legal theory. Jurisprudence gives us an overview and a much more in-depth understanding of the law and the role of law in society. Jurisprudence deals with legal reasoning, legal institutions and legal systems.

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Importance of the study of Jurisprudence

One of the major importance of the study of Jurisprudence is its fundamental value. Jurisprudence mainly comprises of research and the method to construct and clarify the basic concepts of law. Jurisprudence is not concerned with the making of the new laws; rather, it focuses on existing laws in the system and Jurisprudence, and its theories can help lawyers to form a better and much more improved practice.

Jurisprudence can also help students. It has its own scholastic worth in the life of students. Jurisprudence not only focuses on primary legal rules, but it also talks about the social impact of those laws. Jurisprudence combines logical and theoretical analysis of legal concepts. So it proliferates the analytical methods and techniques of a student.

Jurisprudence also focuses on law and its social value. It talks about fairness and the articulation of law. Jurisprudence deals with the basic fundamentals of the law and it is the eye of law. It helps a person to understand the thoughts and divisions of law.

Jurisprudence is also the grammar of law. It helps a person to understand the language and the grammar of law. Legal language and grammar are very different when compared to ordinary language, so Jurisprudence trains the mind of a lawyer so that he can use proper legal vocabularies and expressions.

Jurisprudence provides the rules of interpretation and as a result, it helps judges and lawyers in understanding the importance of laws passed by the legislators.

Jurisprudence and its relationship with other social sciences provide a broad spectrum to students in understanding how law can be related and connected with other disciplines.

Jurisprudence teaches people that an answer to a legal problem is not hidden in the past or awaiting in the future rather than the answer to a legal problem is hidden around them in the fundamentals of legal studies.

Jurisprudence also talks about political rights and legal rights and how the system can strive to balance them out. A student can also look into it with the help of Jurisprudence.

Jurisprudence and its relationship with other sciences

1. Sociology and Jurisprudence

 The sociological approach to Jurisprudence is easily the most important relation between Jurisprudence and other sciences. The reason why it is so important is that the sociological approach is much more concerned in the working of law rather than its fundamentals and basics.

Sociological jurists want to know the effect of law in our society and how law and society work together. Sociological Jurisprudence sees the law as an institution.

Sociological Jurisprudence thinks that laws can be made, transformed and changed according to the needs of society. Basically, it means the law can be adjusted as per societal needs.

 2. Economics and Jurisprudence

Economic studies focus on wealth and its distribution in society with the aim to regulate the lives of people of a State.  Similarly, the law also focuses on regulating the lives of the people through rules and regulations. Initially, the relationship between Jurisprudence and Economics was ignored for a long time until jurists realised the importance of economics in law.

Normative Jurisprudence talks about the stable economic allocation of resources in a society and how it shall reflect consumer preference.

3. History and Jurisprudence

Historical Jurisprudence mainly forms a significant part of legal history as a subject. Law has been around for centuries, and as we know Jurisprudence is the study of law so if we don’t trace back the origin and development of laws, then we are missing out on a theoretical aspect of Jurisprudence.

Development of law through the years gives us an insight, and it helps us to research more about it. Historical Jurisprudence sheds light on the influences that led to the development of a particular law.

4. Ethics and Jurisprudence

Ethics talks about the fact that how the law should be in an ideal state. Ethical Jurisprudence is focused on the fact of how law can be used as an instrument to affirm positive ethics.

Ethics and Jurisprudence state that laws should be based on ethical principles and it should not be treated otherwise. Ethics helps to criticise laws which are unethical in nature.

 5. Politics and Jurisprudence

Political Jurisprudence states that the laws made for people shall be unbiased. There should be no hidden political agendas in law. If a law is politically motivated, then it is clear that such laws shall have no place in our society.

Laws must be influenced by the political environment of a country and that is why countries develop their own constitution which showcases the current social and political needs of a country.

Theories of law in Jurisprudence

Natural Law

Natural law is a part of Jurisprudence, and frankly, there is not a definite way to define natural law. Natural law can still somehow be stated as laws which originated from sources which are other-worldly or some God-like source, basically, the point is natural law did not originate from some political authority or any legislature.

In Jurisprudence, it is believed that Natural law can be applied anywhere in the world i.e. Natural law has universal applicability. Whenever we talk about the term true law it can be said that laws which are obligatory in nature are said to be true law so by that analysis we can say that natural law is not true law.

The reason natural law is not true law because natural law is not obligatory in its true sense. Natural law acts as a defence for moral relativism. Moral judgement varies from places to religion to culture and this theory was ascended by Greek philosophers. The philosophers drew a distinction between the law of nature and conventional human choices and this distinction acted against natural law.

Natural law hence aims to find a common moral ground for different cultures and different religions.  But still, the idea of natural law raises a lot of questions and the biggest and relevant one is whether moral proposition can be derived from the proposal of facts.

A prime example of this question would be people might agree or disagree whether euthanasia is justifiable but then again people would not argue over the justification of punishment over a crime. So it is impossible to affirm the premise and deny the conclusion. Basically, there are still millions of pseudo-theories related to natural law and most of them are not realistic.

So coming to realism and a realistic standpoint at certain cases natural law creates conflict between law and morals. Certain existing laws are inhumane if we consider the theory of natural law. So a law must be analysed on the basis of its efficiency, simplicity and if the law serves a right combination of justice and morality.

Imperative law

Imperative law directly opposes natural law. Imperative law is much more focused on realism when it is compared to natural law. Here in this article, we will discuss Austin’s view on imperative law.

So imperative law is laid down by the sovereign of a country and it is enforced by sanctions, and imperative law is a type of command.

There is a distinct difference between command and law and for a command to qualify as laws that command must be given by a political superior or sovereign. Since this theory defines law in terms of command, sovereign and sanction we can conclude that Imperative theory cannot provide adequate analysis for standard law.

Legal realism

There is a certain similarity between the theories of legal realism and imperative law and that similarity is both the theories sees the law as a type of command.

But in the case of the theory of legal realism, it sees the law as a type of command that must be given by the legislature and for legal realism, the sovereign is the Supreme Court. This approach is used in the United States with Holmes influencing it further. Holmes further states that law, in reality, is judge-made and not made by some supreme power and the actions of courts are not necessarily deduced by statutes and books.

Law of obligation

Law of obligation has been derived from Roman law in its legal sense. Law of obligation can be said to be a relationship of legal necessity in its original sense. All the law of obligation relates to being proprietary rights in its own sense.

In Jurisprudence, a person who gains benefit from the law of obligation is termed as a creditor and the person who is bound by the law of obligation is termed as a debtor.

Schools of thought in Jurisprudence

Philosophical School

The Philosophical School focuses much more in the theory of natural law. This school seeks to find out the reason why a law is enacted and what are the effects of such a law in our society. They believe the purpose of the law is to enhance the nobility of humanity. The philosophical school is not concerned with the analytical and the historical aspect of law.

Analytical School

Analytical School is much more focused on the theory of imperative law. analytical school is related to the origin of civil law. Analytical school talks about the concept of rights and duties and investigates legal models such as acts and contracts.

Analytical school of law believes that law should be codified and the law must be governed by the state with the aim of the benefit of people.

Historical School

The historical school believes that law is a consequence of years of growth of our society. The historical school believes that the sources of law are customs, religious philosophies and societal rules.

Historical school is too much dependent in the past and as a result, it becomes much more conservative but still after such conservatism, the historical school states that law must change with the people.

Realist School

Realist school is technically not a school of jurisprudence; rather realist school is tutoring of thoughts. In realist school, they are much more focused on the actions of the court and what they create. Realist school merely does logical assumptions from the general law.

Sociological School

Sociological school concentrated more on the function of law rather than its intangible content.  The sociological school came into existence due to the accumulation of various thoughts of jurists. The sociological school wanted to connect law with society and law can be adjusted according to the needs of the society. Sociological school talks about legal institutions, doctrines and other theoretical aspects of the law.

To know more about schools of Jurisprudence in detail please Click Here.

Famous jurists in Jurisprudence

Aristotle is also known as the father of natural law. He talked about the importance of natural law in the society and as we know he was correct since even in modern times a lot of tribunals across the world function on the basis of natural law and natural justice.

Thomas Aquinas distinguished four kinds of law and they were eternal law, natural law, human law and divine law. So for him, eternal law was made by God himself and natural law is discovered by motivation from the eternal law. Divine law are the laws which are God’s scriptures and human law is made by man.

John Austin opposed the theory of natural law. He wanted to convert law into science and he was positivist. The reason why he was a positivist is that he believed all the laws that are existent today can be drawn back to mortal lawmakers.

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Conclusion

So in this article, we saw how Jurisprudence is different from the law we practise in general. Jurisprudence helps lawyers and judges to find the real sense of law. We came across various legal theories and how they have affected society and the law. Jurisprudence is an important part of the law and it can never be separated from it.

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This article is written by Himank Dewan a 5th-year student at Bharati Vidyapeeth Deemed to be University, Pune. This article talks about maintenance which is provided to the parents, wife, and children, it also talks about the amendments which have been made in the different states regarding maintenance to parents, wife, and children.

Introduction

Not every living person has a happy beginning, some children never know their fathers after their birth and have to adapt to the world without the help of a father figure. Some women are not living a happy married life, or are subjected to cruelty, or are not even provided basic amenities by their husbands, and the parents who have looked after their children’s happiness all their life are left abandoned by their children, with no one to look after them or no way to look after themselves.

Under this topic, I will be discussing maintenance and its provision and the amendments which have been made by different states.

Statutory Provision

Hindu Adoption and Maintenance Act, 1956 – Under Section 3(b) of the Act maintenance includes an arrangement for nourishment, clothing, residence, teaching and medical attendance and treatment.

Criminal Procedure Code, 1973 – Section 125 of the Act empowers wives, children and parents to claim maintenance from their husband, father or son who has adequate means, either neglect or ignores to maintain them. Upon such consideration, a law officer of the first class may, upon proof of such neglect or rejection, order such individual to offer a monthly leeway for the support of his spouse or such child, father or mother, at such monthly rate in that capacity Magistrate thinks fit.

Who can claim maintenance?

The following individual can claim maintenance under Section 125 of Crpc from husband, father or son or daughter:

• Spouse of the husband who is unfit to look after herself.
• A legitimate or an ill-conceived kid who is below the age of 18 years and who is unfit to look after themselves.
• A legitimate or an illegitimate kid who has attained the age of 18 years however for reasons unknown is unfit to look after itself due to their psychological or physical deformity, or until they can maintain themselves. Daughters who are married are barred from this clause.
• Father or mother of an individual who is unable to look after themselves.

Others who can claim maintenance and from whom?

• Daughter is liable to pay maintenance to parents: It is simply not the son that is required to look after his parents, the same and equal obligation lies on his sister or on the parent’s daughter. The primary condition for them claiming maintenance is that they are unfit to care for themselves or are unfit to maintain themselves. The crucial factor while considering the maintenance claim of parents from the daughter for the court is that they should be pleased by the knowledge that the daughter has appropriate means of her own and is independent of her husband.
• An adoptive mother can claim maintenance: In the case of Baban Alias Madhav Dagadu Dange v. Parvatibai Dagadu Dange, the High Court of Bombay observed that according to the definition given under the General Clause Act, the term “Father” includes both biological as well as an adoptive father. Whereas the General Clause Act has not expressed the term “Mother”, that does not mean that the term should be taken in a restrictive sense. Now if the term “father” and “son” is given a wider interpretation, then there is no valid reason that the term “mother” shouldn’t be given the same wider interpretation so as to include “adoptive mother as well”.
• Stepmother can claim maintenance: In the case of Kirtikant D. Vadodaria v. State of Gujarat and Ors., the Hon’ble Supreme Court held that “a childless stepmother may guarantee support from her step-son provided she is a widow or her mate, if living, is unequipped of supporting and looking after her”. However, the Hon’ble High Court of Karnataka in Ulleppa v. Gangabai provided its view to the judgment pronounced by the Hon’ble Supreme Court in the case. The court observed that if it is proved that the stepmother has alternative modes of supporting herself she may be unable to get support from her stepsons. 

Factors for Claiming Maintenance

Conditions required for claiming maintenance is firm on various factors:

• No separate source of income- When the wife, child or the parent don’t have another source of income, then they can claim maintenance from their spouse, father or child. But the most critical issue to consider before conceding divorce settlement is to ensure whether the spouse claiming maintenance has any other source of income or is absolutely subject to the income of the individual. 
• Expenditures compulsory to maintain the offspring or parents who are unfit to care for themselves.
• To maintain a specific way of living which was given to the wife, before the separation. 
• Providing maintenance to the spouse for developing abilities, capacities and providing educational background so that he/she can acquire a living and maintain themselves.

Who cannot claim maintenance

Maintenance cannot be asserted by the following people:

• A spouse, child or parents who are able to look after themselves cannot claim maintenance.
• A spouse who has been separated and has remarried.
• In the event that the partner is living in infidelity or with no ample reason refuses to live with her mate or has been mutually separated with her mate.

Types of Maintenance

Maintenance is of following types-

• Temporary Maintenance – It has been seen that maintenance continuing under section 125 takes a long period of time to deliver relief to the distressed party. That is the reason the court has given an express arrangement wherein the motivation behind Temporary Maintenance to meet the vital and immediate expense of the distressed party. This is further provided under Section 24 of the Hindu Marriage Act, 1955.
• Permanent Maintenance – This is the last maintenance that is given after the procedure has been disposed of. In this, the maintenance can be allowed on a periodical basis or on a one-time basis or on a continuous basis.

Amendments made by different states

Under Section 125 of the Criminal Procedure Code, the following amendments have been made by different states:

• Madhya Pradesh– In its submission to the State of Madhya Pradesh, 
  1. The words “five hundred rupees” under subsection 1 has been substituted with “three thousand rupees”.
• Maharashtra- In its application to State of Maharashtra, 
  1. The word “not exceeding five hundred rupees” under sub-section (1) has been substituted with “not exceeding fifteen hundred rupees”.
  2. The accompanying proviso has been embedded before the existing proviso, “Given that, the Magistrate on an application or admission being made, upheld by an affidavit by the individual who has applied for the maintenance under this subsection, for instalment of interim maintenance, on being fulfilled that there is a first sight ground for making such order, may coordinate the person against whom the application for upkeep has been made, to pay a reasonable amount by way of interim support to the candidate, pending the final disposal of the support application:
     • Given further that, such request for compensation of interim maintenance may, in an appropriate case, likewise made by the Magistrate ex-parte, pending administration of notice of all the admission, subject, nonetheless, to the condition that such a request shall be capable to be changed or even void after the respondent is heard in the issue:
     • Given also that, subject to the upper limit laid down under this subsection, the sum of interim maintenance shall, as far as practicable, be at 30% of the monthly income of the defendant”.
  3. The following provision has been embedded after subsection 2,“(2-A) Despite anything generally contained in sub-section (1) and (2), where an application is made by the spouse under provision (a) of sub-section (1) for the support allowance, the candidate may seek relief that the order may be made for instalment of support allowance in lieu of the payment of monthly support remittance, and the magistrate may, in the wake of mulling over all the circumstances obtaining in the case including the variables like the age, physical condition, financial conditions and other liabilities and commitment of both parties, pass a request that the respondent shall pay the support allowance in lump sum in lieu of the monthly upkeep allowance, covering a specified period, not surpassing five years at a time, or for such period which may surpass five years, as might be mutually consented to by the parties”.
  4. The following “either under sub-section (1) or sub-section (2-A), as the situation may be,” has been embedded in subsection 3 after the words “ so ordered”.
  5. The following words “or, as the case may be, the lump sum allowance to be paid in lieu of the monthly allowance” has been embedded after “each month’s allowance”.
• Rajasthan– In the submission to the State of Rajasthan,
  1. The word “five hundred” occurring after the words “at such month to month rate not surpassing” and before the words “rupees in an entire” substitute “two thousand five hundred”. 
• Tripura– In the application to the State of Tripura,
  1. The words “ five hundred rupees” shall be substituted for “one thousand five hundred rupees”.
• Uttar Pradesh– In the submission to the State of Uttar Pradesh,
  1. The words “rupees five hundred” under sub-section (1) have been substituted with “ rupees five thousand”.
  2. The following has been embedded after sub-section (5) “(6) Where in a procedure under this section it gives the impression to the Magistrate that the individual claiming maintenance is in need of quick relief for his support and the essential expenses of the procedure, the justice may, on his application, request the person against whom the upkeep is claimed, to pay to the person asserting the upkeep, during the pendency of the procedure such month to month remittance not exceeding five thousand rupees and such expenses of the procedure as the Magistrate considers reasonable and such order shall be enforceable as an order of upkeep”. 
• West Bengal– In the application to the State of West Bengal,
  1. The words “rupees five hundred” under sub-section (1) have been substituted with “rupees one thousand five hundred”.
  2. The accompanying proviso shall be embedded after the following proviso “Provided further that wherein a procedure under this section it appears to the justice that the spouse alluded to in clause(a) or the minor kid alluded to in clause (b) or the child (not being a married daughter) mentioned in clause (c) or the father or mother mentioned in clause (d) in need of prompt relief for her or its or his support and the vital expenses of the procedure, the Magistrate may, on the application of the spouse or the minor child or the child (not being a married daughter) or the father or the mother, as the case may be, request the individual against whom the stipend for upkeep is asserted, to pay to the litigant, pending the decision of the procedure, the expense of the procedure, and month to month during the procedure such remittance as, having regard to the income of such individual, as it may seem to the Justice to be sensible”.

Amount reasonable for the wife as maintenance

In the case of Kulbhushan Kumar vs Raj Kumari & Another, the Hon’ble Supreme Court observed as follows-

“That the Maintenance given to the wife was determined by the court as the decision was taken keeping in mind about the situation, that the wife was receiving money from her father.”

Facts of the case 

The appellant-husband and the respondent-wife married in the month of May 1945. At some point later, the husband did not have any desire to live with the wife, and there was a complete disaffection between both of them. A daughter was conceived in August 1946. 

• In the year 1951, the respondent sent a registered letter asking support, on behalf of herself and the girl, and by the year 1954, she had filed a suit for maintenance.
• During the procedure, the Hon’ble High Court considered that the litigant was a Reader in Medicine accepting an income of about Rs.700 and more than Rs.250 consistently by way of private practice. The date of the establishment of the case was fixed by the High Court for the payment of the maintenance to the respondent.
• The Hon’ble High Court decreed, fixed the maintenance payable to the respondent, under the Section 23(2) of the Hindu Adoptions and Maintenance Act, 1956, at Rs.250 subject to a further reaches of 25% per month of the pay of the appealing party as directed by the income-tax authorities, and Rs. 150 as the support of the young lady.
• In this appeal to the Supreme Court by the respondent bought up the question for the loyalty of the maintenance payable to the wife.

Judgement of the case 

The Court held that:

1. irrespective of the circumstances that the wife had received some money from her father consistently, it can only be perceived as a gift, not as her income. In this manner, it couldn’t be considered under Section 23(2)(d) of the Act in deciding the amount of support;
2. There was no sign of her acquiring any property of her father on his demise;
3. The amount payable by a method of maintenance relies upon the realities of each case and the Judicial Committee, in Mt. Ekradeshwari v. Homeshwar, did not set out any guidelines identifying to the degree of the husband’s ‘free-income’ which would be payable as upkeep to the wife.

In the conditions of this case, no omission could be taken to the sum fixed by the High Court as well as the date, from which the maintenance would be claimable. In deciding the limit at 25% of the ‘free income’ of the appellant, a sum payable towards income tax, compulsory provident fund, and other expenses for maintaining the vehicle for professional purposes as permitted by the income tax authorities ought to be allowed as deductions from the husband’s total salary.

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This article is written by Sri Vaishnavi.M.N., a first-year student of Damodaram Sanjivayya National Law University, Vishakapatanam. In this article, she analyzes the Parker v South Eastern Railway Company.

Introduction

In Parker v South Eastern Railway Company [1], the English court held that not reading the contract cannot be an excuse to escape the contractual terms. This case is a classic example for the exclusion clauses of English contract law. The English Court also held that reasonable measures to be taken to get the customer’s attention on the exclusion clauses of the contract. The party who relies on the exclusion clause must print it in bold and attractive letters to get the needed attention.

Facts of the case 

At the Charing Cross railway station,   Mr Parker left a bag. The charge was two cents. He paid the charge and got the receipt. The ticket receipt of the cloakroom contains the clause that the southeastern railway company which runs the service as well as Charing railway station not liable for items equal or greater value than  £10 on the backside. 

On the front side, a statement was printed “see the back”. Mr Parker did not read the backside as he thought the ticket was just a receipt for his payment. However, he admitted that he knew that the note contained the act. 

Mr Parker’s bag, worth more than 10 pounds, was lost at the cloakroom of Charing Cross railway station. He sued the South Eastern Railway company, the owner of the Charing Cross railway station. The question of the law before the court was whether the clause was applicable to Mr Parker or not and the South Eastern Railway company is liable or not to pay for the loss.

Issue

When he dropped his bag and paid two cents, he received a ticket. On the forehead, the ticket mentioned, “look back.” On the back of the ticket, he stated that the railway was released from any liability for items worth £10 or more. Mr Parker did not read the clause because he thought the ticket was just a receipt for payment. However, he admitted that he knew that the note contained the act. Mr Parker’s bag, worth more than 10 pounds, was lost. He sued the company. The question of the law before the court was whether the clause applied to Mr Parker. At the trial, the jury determined that Mr Parker could not read the ticket.

Reasoning

Justice Mellish, writing for the majority, says that there is no specific law in such situations because it depends on the specific circumstances. If the person receiving the ticket does not know that an act is on the back of the ticket, it can not be bound by its terms. However, if he knew that he had written and refused to read it or did not believe that it contained the terms of the contract, he would be subject to the terms of the contract provided that the note was delivered to him so as to give him notice reasonably that there were conditions. Therefore, the judge states that a new trial must be granted and that the jury must determine whether there is reasonable notice that the deed of sale contains the conditions.

Justice Bramwell accepts in substance but goes further by stating that if the plaintiff sees the act and does not read or read it and does not object, he must be obliged to accept the terms and be bound. He asserts that this is a question of law and that, therefore, the jury need not decide to declare that the verdict must be rendered here in the Southeast.

Divisional Court

The governor Coleridge CJ, Brett J and Lindley J governed for Mr Parker, maintaining the jury’s concession. Lindley J commented: “On the jury’s finding, I guess we can not claim that the litigants did not recognize the article, to be treated by them, without extraordinary terms.” Henderson v Stevenson is therefore indistinguishable from the present case, with the exception of the words “see back”, which were not included in The Essence of the Ticket in all respects. the jury fired, it is, “about the expert of this case, very irrelevant if the unique conditions depend on being on the front or the back of the ticket.”

Court of appeal

Most of the court of appeal held that there should be a retrail. They said that if Mr Parker knew the conditions, he would have to. In the event that he does not even have a clue, in any event, he would be bound to the possibility that the note was given in such a way that it was added to “reasonable advice”. Mellish LJ said the companion:

I have the impression that, in this way, the best possible relationship to leave the jury in these cases is that if the person who received the ticket did not see or realized that there was a composition on the ticket she is not bound by the terms; that, by chance, he knew that he was composing there and he knew or believed that the composition contained the conditions, at that moment he is bound by the conditions; that if he knew that he was composing on the note, he did not know or was not convinced that the composition contained the conditions; on the contrary, he would be obliged if the carriage of the note in this way could Note that there was a composition about it, it was, at the conclusion of the jury, a reasonable warning that the composition contained the conditions.

Baggallay LJ agreed and anticipated that the jury would reach a similar result (in support of Parker). Bramwell LJ disagreed, arguing that a sensible warning should be a problem of law and that it would have governed for the railroad organization.

Judgment

A new trial has been ordered. The trial judge’s order that Parker was not bound by terms he had not read was incorrect. Parker would not be bound by the terms he did not know were printed on the note, but if he knew that the contract contained terms or had written on the note, he would be bound as long as the board was satisfied given enough notice.

Legal principles

The standard form of contracts

The exploitation of the weakest part: The law of the contracts had to face today a problem which takes new dimensions. The problem stems from the modern, widespread and widespread practice of contracting in standard forms. For example, the Indian Railways Administration has to go through countless transportation contracts. It would be difficult for such large-scale organizations to develop an extension contract with each individual. 

They, therefore, keep printed contract forms. These contracts contain a large number of terms and conditions in the fine print that often limits and excludes any liability under the contract. The individual can hardly negotiate with mass organizations and, therefore, their only function is to accept the offer, whether they like it or not. You can not change the terms and conditions, or even discuss them. Therefore, they are to take or leave.

In addition, we can also note that the Honorable Lord Denning MR indicated to Thornton c. Shoe Lane Parking Ltd. that “Nobody in a thousand has read the conditions. If he stopped, he would have lost a train or a boat. “This gives the giant company a unique opportunity to exploit the weaknesses of the individual by imposing conditions that often resemble a kind of privacy legislation and may even exempt the company from liability. resulting from the contract. 

Click here

“The battle against abuse has fallen before the courts.” The courts have had great difficulty in helping the weaker party, especially when they signed the document. they were forced to consider that the document bound you, even if you have never been familiar with its terms, which is what is known as the rule in Estrange v. F. Graucob Ltd, where the facts Ms L signed an agreement without reading it, under which she purchased a cigarette machine. The contract excludes liability for all types of defects in the machine. The machine was totally defective.

However, after having followed the procedure, the court found that the supplier had made no effort to notify the length of the blanket exemption to Ms L. Despite this, the court had stated: “When a document containing contractual clauses is signed, in the absence of fraud or misrepresentation, the party who signs it is bound and it is totally irrelevant whether he has read the document or not. “The result would have been different if the applicant did not sign the agreement.

These contracts have been described in different ways. “Membership contracts”, which means that the individual has no choice but to “accept”; it does not negotiate, but simply adheres to “compulsory contracts” being a kind of taxation and “private law” being a sort of code of laws on the basis of which the individual can benefit from the services offered.

Protective devices

The individual, therefore, deserves to be protected against the possibility of exploitation inherent in such contracts. Below are some of the protection methods developed by the courts.

Reasonable notice

In the first place, it is the responsibility of the person issuing the document to give sufficient notice to the addressee of the printed general conditions. When this is not done, the acceptor will not be bound by the conditions.

The second safeguard of the legal principle of the “standard form of contract” is that the “notification must be concurrent with the contract”, which can be explained in such a way that the notification of terms is given before or after at the contract. A subsequent notification will be equivalent to the original contract amendment and will not bind the other party unless the other party has given consent. For example, a man and his wife rented a room in a hotel and paid rent a week in advance. 

When they went up to occupy the room, there was a notice on one of the walls stating that “the owners are not responsible for the lost or stolen property, unless they are delivered to the persons in charge for preservation” Stolen due to the negligence of the hotel staff, the defendants were responsible, the court ruling that the notification was not part of the agreement.

When the fulfilment of a contract is symbolized by the issuing of a ticket by an automatic machine, the question arises as to whether the notice printed on the ticket has been given to the contractor at the same time. This aspect is discussed in many cases, such as Thornton v. Shoe Lane Parking Ltd.

Other relevant case laws

Henderson v. Stevenson 

In Henderson v. Stevenson[2], the applicant purchased a steam train ticket on the face of which only the words “Dublin in Whitehaven” appeared; On the back, certain conditions were printed, one of them excluding the liability of the company for loss, injury or delay of the passenger or his luggage. The plaintiff had not seen the back of the note and there was no intimidation in the face as to the conditions at the back. The plaintiff’s baggage was lost in the wreckage because of company officials. He had the right to recover the loss of the company despite the exemption clauses.

Mackillican v. Compagnie Des Messageries Maritimes de France

In Mackillican v. Compagnie Des Messageries Maritimes de France[3], the applicant accepted a flight ticket containing the conditions printed in French. He said he was not bound by them, unable to read in French. Rejecting this statement, Chief Justice Garth stated, “Although he may not understand French, he was a businessman contractually bound to the French language, very clearly that the conditions supported were those in which the accused had agreed to take it.

Reference 

1. (1877), 2 CPD 416
2. (1875) 2 H.L. Sc. App. 470
3. (1881) ILR 6 Cal 227

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This article is written by Roy George. He is a senior associate at AZB & Partners. He completed his undergraduate studies in law and business at Symbiosis Law School. He subsequently worked at JSA for 5 years before taking up an offer to do his masters in corporate law (MCL) at the University of Cambridge. In his free time, he enjoys playing football, and following the economy and politics, not necessarily in that order.

Let me begin with a commonly used trope – the liberalisation of the Indian economy in 1991 unleashed the economy’s animal spirits bringing us to where we are today – India is the world’s 6th largest economy (in GDP terms)(1) and its fastest growing large economy.(2) Together with this whirlwind expansion, corporate law and the number of corporate lawyers and law firms have exploded too. 

But the question which I pose today is where are Indian law firms positioned today and where are we heading? While there are many facets to this question, this piece will focus on the spectrum of legal work and partner/associate leverage. 

(3)The spectrum of legal work which a corporate law firm engages in can be broadly categorised as(4):

1. Standardised;
2. Customised;
3. Grey hair;
4. Rocket science.

Standardised work is where a client comes to you with a common problem. Since the problem is not complex, the client will be looking to the lawyer to provide an efficient cost-effective solution. The client is aware that a broad range of firms will be able to handle the problem, almost always for fixed/capped fees. From the perspective of the lawyer/law firm, there are several factors to consider, to ensure that you are meeting the requirements of the client while beating the competition. These factors include having established systems and procedures, having a higher ratio of junior lawyers to senior lawyers (10:1 or even higher) and efficient delivery. An example of standardised work would be generic document review as part of due diligence exercises – perhaps, the type of work which would be the bread and butter of Legal Processing Outsourcing (LPO) entities. 

Established systems and processes would mean that the individual involved in the matter would be required to follow precedent with less focus on thinking creatively. To carry the document review example further, the individual would be required to follow standard templates to record information obtained on the basis of such document review.

These types of assignments would emphasise efficiency, speed and staying within a fixed fee budget, and given the lower margins on such assignments, would inevitably be higher volume as well.  

Moving along the spectrum, customised work is standardised work with additional requirements which may be client or sector specific. These assignments may require a deeper understanding of the client’s business, and for the individuals executing the assignment to have stronger and deeper relationships with the client. An example of this may be where a taxi firm engages a law firm to understand its labour law compliance obligations in India’s various states. Such an assignment will continue to require established systems, procedures and precedent, but will require more senior lawyer involvement and judgement. While fees would see more flexibility on customised work, clients would continue to be price sensitive. Leverage of junior to senior lawyers would be in and around 7/8:1.

The grey hair segment, as the name suggests, alludes to work which requires extensive experience and judgment, usually complex issues which the client does not deal with on a regular basis. Examples of work in this segment could include complex financial transactions such as high value private equity investments and strategic M&A. This type of work typically requires heavier involvement of senior lawyers interpreting law and providing legal solutions utilising their specialist knowledge. Leverage of junior to senior lawyers in this segment would usually be in the range of 3/4/5:1. Fees in this segment are higher, but will vary based on the type of transaction and client. For example, a high value M&A transaction for a client which doesn’t often do M&A would likely mean higher fees when compared with advising a private equity player which makes high value investments but on a comparatively more regular basis. 

Finally, coming to the rocket-science segment. These are unique problems which need unique solutions, and problems which are major “bet the company” issues in terms of scale. These matters require a very high level of expertise and experience, not to mention wide ranging knowledge and creativity. Given that such matters will require intensive senior lawyer/partner involvement, the leverage ratio could be as low as 1/2:1. The importance and criticality of these matters will mean that the client will be willing to pay premium fees for such matters. Examples of such matters may include the division of the Reliance group between the Ambani brothers, the insolvency proceedings relating to the sale of Bhushan Steel to Tata Steel – the first major victory for creditors under the Insolvency and Bankruptcy Code, advising ride hailing app Uber on its entry to India and many others. 

It is important for a law firm to know where it is positioned along the spectrum so that it can deliver a value proposition to its clients. If a law firm is doing mainly customised work but its leverage ratio is 2:1, then given the high involvement of senior lawyers it is unlikely that the fees charged by the law firm will be within the expectations of the client or competitive with the market. Similarly, if a law firm’s leverage is at the level required for customised work but it is undertaking upper segment grey hair work, then the fall-out will be that there may not be enough senior lawyer involvement on the matter and the quality of the work product may not meet the expectations of the client. Other considerations in this context are that lawyers usually consider the work that they are doing to be higher on the spectrum than it actually is,(5) and that work that a firm does is going to be subject to constant downward pressure on the spectrum – meaning that, typically, cutting edge work done today becomes commoditised as time goes by.(6) However, I will leave discussion of these considerations for another day (or article!).  

Are Indian law firms positioning themselves optimally to meet the demands of the work they are undertaking on the spectrum of work? Let’s first look at leverage in a mature market like the US. Wachtell, Lipton, Rosen & Katz, a firm reputed for its “rocket science” legal work such as defending against hostile takeovers and sensitive litigation – according to numbers available for 2016, leverage for Wachtell was 2.11. While for a more mainstream corporate law powerhouse such as Davis, Polk & Wardwell, leverage was 4.86. While there are exceptions, the aforementioned examples do point towards these firms positioning themselves according to the work that they are doing i.e. more rocket science work for Wachtell meaning lower leverage and more grey hair work for DPW meaning higher leverage.(7) 

A look at the leverage ratio numbers available in the public domain for Indian law firms paints an interesting picture. If we look at the top 8(8) firms:

1. AZB & Partners- 4 (80 partners and 320 non partners);
2. Shardul Amarchand Mangaldas and Co. – 4.1 (102 partners and 418 non-partners);
3. Trilegal – 5.5 (42 partners and 231 non-partners);
4. Cyril Amarchand Mangaldas – 5.5 (103 partners and 547 non-partners);
5. Khaitan & Co. – 3.6 (115 partners and 415 non-partners);
6. J. Sagar Associates – 2.3 (92 partners and 208 non-partners);
7. S&R Associates – 4 (13 partners and 52 non-partners);
8. Luthra & Luthra – 3.9 (72 partners and 278 non-partners).