This article is written by Arya Mishra, a student of Banasthali Vidyapith, Jaipur. This article talks about the relevancy and admissibility in the Evidence Act.

As per Janab’s Key to Evidence, relevance alludes to the level of connection and probative incentive between a reality that is given in evidence and the issue to be proved. Admissibility includes the procedure whereby the court decides if the Law of Evidence allows that important proof to be gotten by the court. The articulations ‘relevancy’ and ‘admissibility’ are frequently taken to be synonymous. Be that as it may, they are not the equivalent. The first hurdle to presenting any piece of evidence to a court is showing that the evidence is relevant. Relevance is a threshold requirement that must be met before the court can consider the value the evidence may have. Evidence is relevant when it “has any tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.”

Definition of Relevancy and admissibility

Relevancy 

Relevant Evidence is evidence that makes a reality practically obligated to be legitimate than it would be without confirmation. Relevant proof might be rejected for unreasonable partiality, perplexity, or a waste of time. The relevant proof is commonly permissible and irrelevant proof is never acceptable. Two main fundamental standards on relevance:

1. Nothing is to be received which is logically not verified regarding the matters which are required to be proved.
2. Unless and until the clear ground of law or policies excludes it, everything which is verified or probative should come in. Relevancy act as a link between a statement of proof and a statement that needs to be proved.

One fact is said to apply to one another when one is associated with the other in any of the ways alluded to in the provisions of The Indian Evidence Act relating to the relevancy of fact. 

Indian Evidence Act does not give a particular meaning of relevancy or relevant fact. It essentially depicts when one fact become applicable to another one. 

Sec.5 to Sec.55 of Indian Evidence Act gives a few manners by which one fact might be associated with another fact and in this way the idea of relevant fact can be distributed. One fact is pertinent to another fact if they are associated with one another in any of the ways as portrayed in Section 5 to Section 55. In the event, if a fact isn’t so associated, then the fact is irrelevant.

A court may bar important proof when the probative estimation of the proof is significantly exceeded by the peril of at least one of the accompanying: out of line bias; confounding the issues; misdirecting the jury; undue postponement; unnecessarily exhibiting aggregate proof.

Admissibility

All the relevant facts which are admissible by the court are called admissibility.

As per the Section 136 of the Evidence Act, the final discretion of the admissibility of evidence of the case lies with the judge. Section 136 of the Evidence Act states that exactly when either assembling proposes to give proof of any reality or actuality, the Lord justice may ask the social event proposing to give the proof how the alleged truth, at whatever point illustrated, would be huge; and the judge will surrender the verification if he envisions that the truth, at whatever point appeared, would be relevant, and not something different.

Essential ingredients of Admissibility

1. The judge is the only person who determines relevancy and admissibility. 

2. When an individual proposes to show proof of any fact, the judge may ask an individual to explain ‘in what way’ the fact is relevant. 

3. The judge would concede the particular demonstrated reality just if he is content with the suitable reaction of the individual that it is, to be sure, significant under either provision of S. 6 to 55. Hence the thought of relevancy begins first and of admissibility later and the judge will concede the reality only if it is relevant.

What is Relevant Evidence?

All reality is relevant which is equipped for bearing any reasonable assumption as to facts in issue or principal matter in dispute. Sir “Stephen,” said that relevancy means a connection of event as cause and effect. By and large, the realities significant to an issue are those actualities that are important for evidence or disproof of reality in the issue. Such realities might be given in proof legitimately or inferentially. 

What is truly implied by ‘relevancy of fact’ is a fact that has a specific level of probative power. They are not certainties in issue but rather may influence the probability of reality in the issue. 

Relevant evidence is auxiliary or collateral in nature, yet appropriate or likely in offering ascend to a derivation of right or risk by a procedure of thinking.

A fact will be relevant only when it has a link with the facts in issue, but it is not admissible. For example- communication between spouses during the marriage or any professional communication or communication which is made regarding the affairs of the state these all are not admissible but they are relevant. A particular fact is reasonably connected to the main issue it can be easily ascertained by logic and not by law. Therefore logical relevancy signifies a reasonable link between the facts. Basically, it is a question of fact in which lawyer duty arises and they have to decide whether to tender the proof in the court or not. The Relevant fact is given in evidence to act from Section 5 to 55 and they are admissible in court. 

Case – Knapp v. state

In the American case of Knapp v. state, the standard of law expressed by the court was that “the assurance of the determination of a particular thing of evidence lays on whether verification of that evidence would sensible in general assistance settle the essential issue at trial.

Essential ingredients of relevance 

1. Relevancy is not totally dependent on law.
2. Relevancy is determined on the basis of practical experience, logic, common sense, human experience and basic knowledge of affairs.

Difference between relevance and admissibility

Case- Ram Bihari v State of Bihar

In this case, the supreme court observed that relevance and admissibility are synonyms to each other but their legal implications are different from each other, and the admissible facts may not be relevant.

Relevant facts (Section 9)

Facts will help in supporting, refuting, clarifying or presenting significant realities are additionally important under this section, for instance, if an individual is absconding away not long after in the wake of being blamed for a wrongdoing, it is applicable as lead ensuing and influenced by certainties in the issue. In Sainudeen v State of Kerala (1992 Cr LJ 1644 Kerala), distinguishing proof of the blamed through his voice was significant under this section. 

This Section likewise covers test recognizable proof processions (TI parades). Its utility was clarified by the Supreme Court in Ramanathan v State of TN (AIR 1978 SC 1201) expressing that the normal and old routine with regards to arranging suspects for distinguishing proof by observers or by the unfortunate casualty winds up fundamental where the personality of the culprit is obscure.

Case – Lakkshmandas Chaganla Bhatia v State

Section 9 of the Evidence Act, 1872, brings out certain facts which can be treated as applicable. On the basis of this case Lakshmandas Chaganlal Bhatia v. State, the court laid down some of the following relevant facts: 

1. Facts are important to clarify or present reality in issue or relevant fact. 
2. Certainties that support or counter an induction proposed by a fact or truth in issue or a relevant fact. Realities that set up the character of anything or individual whose personality or identity is relevant. Substances which fix the time and spot at which any reality in issue or noteworthy assurance occurred. Certanities which shows the relationship of social events by whom any reality in issue or fitting truth was executed. 

Another section of the Indian Evidence Act which manages adequacy is Section 11. Section 11 manages those substances which are not regularly noteworthy yet somewhat wound up being significant in the event that they are conflicting with any appropriate truth or they make the proximity or non-closeness of any relevant sureness exceedingly more likely than not or fantastical. 

Sheik Ketab-Uddin v. Nagarchand Pattak– In this case, it was held, that where the executants of a record-holding presentations of cutoff purposes of property are alive and don’t give their evidence, such records are not adequate around there. 

Bibi Khaver v. Bibi Rukha,- In this case, the court said that all together that a security truth might be passable as significant under this segment, the state of the law is that: 

The insurance truth must itself be developed by usually indisputable proof.

It must, when developed, bear the expense of a reasonable presumption or deducing concerning the issue in the contest. 

Numerous confinements are made in Section 11. R.v. Prabhudas– In a charge of fraud, proof of ownership by the blamed for different records suspected to be forged is prohibited.

Another constrainment referenced for the circumstance Bela Rani v. Mahabir. In this case, the Section 11 is also obliged by Section 17-39. Besides, concerning the appropriateness of declarations made by a person since perished, it has been held that except if on the off chance that they are acceptable in chapter 32 and Section 33, Section 11 won’t profit to make them proof.

Conclusion

Relevancy is a test for admissibility. The topic of admissibility is one of the laws and is controlled by the Court. In Section 136 of Evidence Act 1950, a variation is made among relevancy and admissibility, on the off chance that it very well may be demonstrated that the proof would be relevant whenever demonstrated, the court will concede proof of it. All admissible evidence is relevant but all relevant evidence is not admissible. An irrelevant truth isn’t allowable in court. Be that as it may, in specific cases, proof which isn’t relevant under Section 5 to 55 may, in any case, be acceptable.

Evidence is considered as more important in deciding cases over many years. The power vested on the managing official in choosing whether a proof is permissible or not is immense and must be limited through rules. the law identifying with proof isn’t reasonable for the present age and it must be changed for the better working of the legitimate framework. An unmistakable line must be drawn between the intensity of the judge and the intensity of the judge all things considered a gigantic power vested on individuals would just bring about defilement of intensity. the law is incomparable and no man should given the optional capacity to twist it to his desire. Each bit of proof which concerns the case must be admissible whether it is found through illicit hunt or some other methods. There are many people among us who envade the eyes of law forever because of inadmissible evidence.

The post Relevancy and Admissibility appeared first on iPleaders.

This article is written by Arya Mishra, a student of Banasthali Vidyapith, Jaipur. This article talks about capital punishment, types of capital punishment, capital punishment in India and many more.

Introduction

In India, the motive behind giving the punishment is based on two aspects, the first one is that the wrongdoer should have to suffer and the other is to discourage others from doing wrong by imposing punishment on wrongdoers. Amongst the different kinds of punishment for a crime in India, this article focuses on Capital Punishment which is also known as the death Penalty which is awarded by the court in the rarest of the rare cases.

In this article, the scope and validity of capital punishment shall be discussed in the context of the Indian Judiciary. Firstly, we should look at the advent of death as a punishment for brutal crimes and this shall be followed by a brief of some of the most famous cases related to Capital Punishment decided by the Indian Courts. The main aim of this article is to give the reader a clear understanding of the condition and view of the Indian Courts in regard to the awarding of Capital Punishment.

Death Penalty or Capital Punishment has always been a point of contradiction not only in the Indian Judiciary but also in most developed countries. The state’s authority is both questioned and established after the execution of Capital Punishment. India has made its stance clear on this matter in December 2007 and despite its stance, the Judiciary spares it for extraordinary infringement of the law. In the previous 10 years, the Indian Judiciary has condemned 1,303 individuals to death yet just 4 have been hung till death in this whole decade. There are many human rights movements in India according to which capital punishment is immoral because it affects one person’s right. The Indian Criminal jurisprudence is based on the combination of two theories: one is the Reformative theory, according to which crime seems like a disease. This theory believes that “You cannot cure by killing”. The main aim of this theory is to bring a change in the personality and character of the offender, to make him a useful member of society. The other theory which is followed is Preventive Theory, which says ‘Prevention is better than cure’. It’s better to take prevention before the commitment of a crime. This theory aims at preventing crime by disabling crime by imposing the death penalty on the criminal, or by confining him in prison or by suspending his driving license as the case may be.

The Indian Constitution likewise offered forces to the President and representative to suspend or exculpate capital punishment. In India, the death penalty is granted for the most genuine and horrifying offenses. The death penalty is given for murder, theft with murder, taking up arms against the administration and so forth. This punishment is given when the court arrives at an end that life detainment is lacking, in view of the circumstances of the case. The fundamental point of this examination is to study about the: 

• Capital Punishment in India.
• Constitutionality of Capital Punishment.

Background and origin of capital punishment

Chronicled records demonstrate that even the most antiquated crude clan’s used strategies for rebuffing transgressors, including ending their lives, to pay for the violations they had submitted. Murder regularly warrants this extreme type of punishment. ‘A life for an actual existence’ has been one of the most essential ideas for managing wrongdoing since the beginning of written history. 

The death penalty turns into a typical reaction to an assortment of wrongdoings, including rape and different military offenses as the inborn social orders formed into social classes and mankind made its own self-administered republics. Composed guidelines were caused among the general population to tell them about the punishment to be looked at by them on the off chance that they would partake in any of those wrongdoings. One of the soonest composed archives that bolstered the death penalty was the Code of Hammurabi, which was composed on the stone tables around 1760 BC. It contained 282 laws that were gathered by the Babylonian King Hammurabi, including the hypothesis of “tit for tat.” Several other old reports bolstered the death penalty including the Christian Old Testament, the Jewish Torah and the works of the Draco, an Athenian official, who proposed giving capital punishment to an enormous assortment of wrongdoings in antiquated Greece. 

Early structures for giving capital punishment were intended to be moderate, agonizing and unbearable, for example, being scorched and squashed by an elephant and so forth. Later social orders found that these techniques are extremely merciless and are of strange structure. During the eighteenth and the nineteenth Centuries, legitimate bodies found quicker and less excruciating ways to deal with the death penalty incorporating hanging and executing with the guillotine.

Capital punishment has become more controversial as time passes. The general population, who restrict this training, announce it to be heartless and out of line. They accept that no life ought to be taken, paying little respect to the wrongdoing that has been committed. DNA testing has demonstrated that the blamelessness of a few people waiting for capital punishment and the contention that nobody ought to be executed to abstain from murdering a guiltless individual has developed accordingly. 

Types of Punishments

Chapter III of the Indian Penal Code, 1860 (Sections 53 – 75) has set out the general arrangements identifying with the death penalty. The Code has accommodated a reviewed arrangement of punishment to suit the various classes of wrongdoing relying on the gravity of the offense. 

Section 53 accommodates six kinds of punishment that can be given to each convict. These are: 

Section 53-Punishment 

The punishment to which the guilty parties are at risk under the arrangements of this code are death, life imprisonment, detainment (rigorous with hard work and simple), forfeiture of property and a fine.

Amongst these punishments, as provided under the Indian Penal Code, the death penalty or capital is the most brutal form of punishment to be given to any person in the society.

The term ‘Capital Punishment’ is derived from the Latin word ‘Capitalis’ means ‘regarding the head’. Capital Punishment is given to a person when he commits the most grievous crimes against humanity. It is a process that includes the death of a person for his criminal offence, given by a court of law. Capital Punishment varies from place to place, state to state and country to country. It is a legal process whereby a person is put to death by the state as a punishment for brutal crimes. The Judicial decree is that someone is punished in this manner is a death sentence, while the actual process of killing the guilty is an execution. There has been a global trend towards the abolition of capital punishment but in India, there is no such position that was adopted. The obvious element of irreversibility makes this form of punishment different from all others. A guilty once executed for death can never be brought back to life. So if an error occurs while deciding a matter, it cannot be rectified later.

Nowadays, the death penalty is used for those people who commit capital crimes or capital offences such as murder, terrorism, drug trafficking, etc. The persons who are below the age of 18 years are exempted from the death penalty. While some Arabic countries do not follow this exception and they also give the death penalty to those offenders who are below the age of 18 years. In most countries, lethal injection is used as a method for death execution while in some societies; violent death penalties are still being practiced such as shooting, electric chair, etc.

Capital punishment is practiced in countries like USA, China, Iran, Iraq, Japan, Somalia, Saudi Arabia, Malaysia, Taiwan, Vietnam, Nigeria, Afghanistan etc.   

Capital punishment in India

We cannot deny the presence of capital punishment even in the ancient history of India when we look back into Indian history. According to the Hindu teaching, it has been found that capital punishment has been permitted also and forbidden also. Hinduism preaches non- violence i.e. Ahinsa but it also teaches that a soul cannot be killed it is the human body to which the death of an individual is limited. The soul is reborn into another body upon death until Moksha.

The religious civil and criminal law of Hindus is encoded in the Dharmashastras and the Arthashastra. In Dharmasastra, the description of various crimes and their punishments is given including murder, the mixture of castes, etc. In this context, Bhagavad Gita contains that the righteous destruction of the wicked is commended as meritorious.

In India, capital punishment is mainly given for brutal crimes. The President has the power to grant mercy in death penalty cases. When an individual has been given capital punishment by the Sessions Court, it must be affirmed by the High Court. If the convict appeals in the Supreme Court and fails then at that point the convict can ask a mercy petition to the President of India. The Ministry of Home Affairs will set out the Appeals made to the Supreme Court and the solicitations made for the extraordinary leave to appeal to the Court by the convict.

Methods for providing capital punishment all over world

At present, the ancient methods have been abolished for providing capital punishment and new techniques are being adopted in order to reduce the physical pain experienced by the offender while dying. The new methods adopted for providing capital punishment include:

• Hanging
• Beheading
• Stoning
• Lethal Injection
• Shooting by fire squad
• Shooting
• Electrocution
• Gas chamber
• Falling from an unknown height

The method of electrocution was first used as a method of Capital Punishment at Auburn State Prison of New York on August 6, 1890, and this method is at present used in various countries such as England, Russia and, Japan, etc.

During the II World War, a special machine called ‘Guillotine’ was used to kill Nazis and it was used in France for the execution of capital punishment. This machine was invented by Doctor Guillotine; it had a sharp blade with the help of which a person was beheaded. Later this machine was also used by England and Scotland for the execution of the death of the offenders.

The Shooting was used as a technique for providing death sentences in Russia and in China also. In America and Germany, the gas chamber technique was used as a method for the execution of the death penalty, in which the criminal is left to suffocate in a vacuum gas chamber and henceforth die. In this technique, the criminal dies immediately without any physical pain.

Hanging till death is popular in many countries but by considering India in this context, it is illegal to hang a criminal at a public place.

A new method is known as the lethal injection method introduced for the execution of capital punishment. For the first time, it was used at Yokohama in America in 1977. The positive quality of this technique is that it kills the criminal in a few seconds and it does not give any physical pain to the offender. At present, it is used in Canada, England, and other countries. 

Methods of execution in India

In India, the two popular methods of providing capital punishment are hanging and shooting.

• Hanging

All executions in India are carried out by hanging the criminal till death. In 1949, the assassin of Mohandas Karamchand Gandhi i.e. Nathuram Godse was the first person to be hanged till death in Independent India. The Supreme Court of India suggested that the punishment of death sentence should be given in those cases which come into the ambit of ‘rarest of rare’ cases.

Since 2010, the death execution of two persons had been done. One is Afzal Guru, a terrorist who attacked the Indian Parliament in December 2001. His death execution was held in Tihar Jail, Delhi by hanging on February 9, 2013. The other is of Ajmal Kasab, who was the lone surviving terrorist of the Mumbai attack in 2008. His execution for death was done on November 21, 2012, in Yerwada Central Jail, Pune at 7:32 a.m.

• Shooting

The Army Act, 1950 and the Air Force Act, 1950 also provides the provisions and methods for awarding capital punishment. Section 34 of the Air Force Act, 1950 empowers the Court to impose the death penalty to the offences mentioned in Section 34 (a) to (o) of the Act.

Section 163 of the Air Force Act, 1950 provides that:

“In awarding a death sentence, a court-martial shall, in its discretion, direct that the offender shall suffer death by being hanged by the neck until he is dead or shall suffer death by being shot to death.”

This provides discretionary power to the Court to provide for the execution of the death sentence either by execution or by shooting. As the Air Force Act, 1950, the Army’s Act, 1950 and the Navy Act, 1957 also provide for similar provisions.

Crimes associated with Death Penalty

The crimes which are deserving of death are:

Aggravated murder

According to Section 302 of the Indian Penal Code, 1860, a person who commits murder shall be given the death penalty. In Bachan Singh’s case, the Court held that capital punishment is constitutional only when it is applied as an exception in “the rarest of the rare” cases.

Other offences resulting in death

In the Indian Penal Code, the death penalty is given to an individual who submits a murder during a furnished theft. Submitting or submitting Sati to someone else is additionally deserving of capital punishment. 

Terrorism- related offences not resulting in Death

The utilization of any exceptional classification of explosives so as to complete a blast that could jeopardize one’s life or cause genuine harm to one’s property is deserving of the death penalty.

Rape not resulting in Death

An individual who inflicts injury in  rape, because of which he passes on or is left in a “persistent vegetative state” might be granted capital punishment under the Criminal Law Act, 2013.

Gang rapes are punishable with capital punishment. These were formed after the gang rape of medicinal understudy Jyoti Singh Pandey in 2012 in New Delhi. 

As indicated by the 2018 Criminal Law Ordinance, an individual who rapes a young lady underneath the age of 12 might be given life detainment or sent to jail for a long time alongside fine. The alteration done in 2018 additionally indicates the death penalty or life detainment for the gang rape of a young lady who is younger than 12. These progressions were done in the criminal law after the gang rape and murder of an eight-year-old young girl named Asifa Bano, who set off a ton of political agitation in Jammu and over the entire nation.

Kidnapping not resulting in Death

As indicated by Section 364A of Indian Penal Code, 1860, grabbing not bringing about death is an offense deserving of capital punishment. On the off chance that anyone kidnapped somebody and takes steps to kill him during which the kidnapper act brings about the death of the person in question, he will be at risk under this section.

Drug trafficking not resulting in Death

On the off chance that an individual endeavor to commit any of scope of drug trafficking offenses or financing such kind of drug-related acts, the person in question can be condemned to death. punished by capital punishment.

Treason

An individual who attempts to take up arms or is taking up arms against the administration and helping Navy, Army or Air Force officials, troopers or individuals to submit a revolt will be rebuffed by the death penalty.

Military offences not resulting in Death

If a member of the Army, Navy or Air Force commits an abetment of assault, mutiny, and other related offences, he shall be punished by death penalty.

Other offences not resulting  in death

1. If a person is a party to criminal conspiracy in order to commit a capital offence, he is punishable by the death penalty.
2. A person who attempts to kill a life convict is punishable by a death sentence if the victim is harmed in the attempt.
3. If an individual provides any false evidence against an innocent person, despite being of the knowledge that based on those evidence that person can be given a punishment of death penalty, and if it results in the execution of an innocent person, then the person who provides such evidence will be given the death penalty.

Category of offenders excluded from Capital Punishment

•  Minor

As per the Indian Law, an individual who is younger than 18 years at the time of commitment of the crime can’t be given capital punishment. 

• Pregnant Woman

As per the alteration made in the year 2009, Clemency must be conceded to a pregnant lady who is condemned to the death penalty.

•  Intellectually Disabled

As indicated by the Indian Penal Code, an individual while committing out a heinous wrongdoing, was rationally sick or can’t comprehend that the nature of the demonstration performed by him is risky, can’t be rebuffed by capital punishment.

The post Capital Punishment in India appeared first on iPleaders.

This article is written by Arpit Goyal, a third-year law student of Maharashtra National Law University Aurangabad. In this article the writer has tried to explain child marriage, issues related to it and the various general and personal laws relating to it.

What is Child Marriage? 

A marriage which is solemnized in contravention with prescribed age of marriage, by the General Laws. International Covenants such as The Convention on Elimination of all forms of Discrimination Against Women (CEDAW) and Convention on the Rights of Children (CRC) have prescribed the minimum age for marriage. In India, The Child Marriage (Restraint) Act, 1929 and now the Prohibition of Child Marriage Act, 2006 has prescribed the age of marriage which is 18 for girls and 21 for boys. In India, Child Marriage can be solemnized as per the respective personal laws and as such for the purpose of “solemnization” of child marriage, there is no single law. 

What are the issues pertaining to child marriage? 

• Health-related issues: A Study conducted by UNICEF on Early marriage & Child Spouses in 2001 concluded that the risk of premature labor that is the Maternal mortality amongst girls aged between 15-19 years is about three times higher, babies born to a mother under the age of 18 tend to have higher rates of child mortality and the young babies lack parenting skills and decision-making powers. 
• Human Rights issues: There are human rights issues as it is the case of child abuse. It is the fit case of child abuse (LCI 205 Report on Child Marriage, 2008) as child marriage denies the basic human rights to the spouses especially the girl child such as Health, Education and Well-being. A study of UNICEF, UN Children’s Report on Early Marriages: A harmful traditional practice, 2005 has also shown that the highest rate of domestic violence among women married by 18, is higher as compared to the ordinary marriages. 

Delhi High court in Association for Social Justice & Research Union of India & others, has held that child marriage is a grave form of human rights violator. Human Rights such right to education, right to development, right to health, right to employment, right to a dignified life, right to participation and well-being and personality development are being deprived to the girl child.

• Specific gender dimension: (LCI 205 Report on Child Marriage, 2008) 

The girl child is the most vulnerable person in child marriage due to childbirth, rearing, bearing, domestic violence and lack of parenting skills. She is also denied of the basic education, especially in India, where the son is always preferred over the girl child. 

General Law on Child Marriage 

The law has failed to curb the prohibition of child marriages that are taking place across the religions, specifically Hindus in most of the cases. Many NGOs are fighting to eradicate the same and a movement is going on regarding the same. Even public interest litigations filed could not bring about any substantial difference. There is a need for sensitization in society regarding child marriage. Many attempts have been made to regulate child marriage even before the Independence of India and the commencement of the Indian constitution. Below mentioned are the general laws aimed at to regulate child marriage, though there has been no complete abolition of the same.

The Child Marriage (Restraint) Act, 1929 

This was the first of its kind legislation regulating the “child marriage” by prescribing the required age of marriage for both the parties to the marriage across India. This act aims to restrain the child marriage.

In the case of Sushila Gothala vs. State of Rajasthan the court stated that the minimum required age for marriage is 18 years for girls and 21 years for boys.

The Prohibition of Child Marriage Act, 2006 

 The Prohibition of Child Marriage Act, 2006, is aimed to

1.  Punish the ones involved in the performance of child marriage, and
2. To provide a legal opportunity to both the spouses of child marriage to repudiate the marriage, by way of a decree of nullity. (Voidable & Void) 

The present law is gender neutral in providing the right to both the boy and the girl child of forced marriage. The Prohibition of Child Marriage Act, 2006, may be viewed as: 

1.  General and secular legislation (which is applicable to all the citizens of India).
2.  Penal legislation. 
3. Social and progressive legislation. 
4. Matrimonial legislation, only to regulate “child marriage”, having a uniform application (Status of child marriage).

 The matrimonial angle of The Prohibition of Child Marriage Act, 2006: 

“Child Marriage” in all the situations is not something which has been declared as invalid. But, the legal validity of any marriage in India, is decided on the touchstones of family law. But there are some provisions of this Act which may be taken into consideration so far as the legal validity of child marriage is concerned. The Prohibition of Child Marriage Act, 2006 has incorporated some ancillary rules relating to the “maintenance” and “the legitimacy of the child” of such child marriage. 

The status of child marriage according to Section 3 of The Prohibition of Child Marriage Act, 2006 is voidable Marriage. Section 3 of the Act states that the child marriage is voidable at the option of both the party and the petition may be filed at any time but before completion of two years of attaining majority, before the District Court. 

Whereas, the status of child marriage as per Section 12 of The Prohibition of Child Marriage Act, 2006 is void Marriage. Section 12 of the Act states that child marriage is void in the following circumstances when the minor:

1. Is taken or enticed out of the keeping of the lawful guardian; or
2. by force compelled, or by any deceitful means induced to go from any place; or
3. is sold for the purpose of marriage; and made to go through a form of marriage or if the minor is married after which the minor is sold or trafficked or used for immoral purposes, such marriage shall be null and void.

Section 4 and Section 5 of the Prohibition of Child Marriage Act, 2006 provides maintenance to the girl child and legitimacy of the child so born of child marriage. Section 4 states that the district court may make maintenance, residence, and custody of the child order during such petition in favor of the female spouse until her remarriage and Section 5 states that the child born of such marriage is deemed legitimate.

The Indian Penal Code- Child Marriage and offence of Rape 

The primary consequences of child marriage are a physical relationship between the husband and a girl and the procreation of children. These consequences are to be seen in the light of Section 376 of the Indian Penal Code, 1860 wherein in certain cases sexual intercourse with a woman with or without consent is an offense of rape. Section 376, Exception 2 states that “Sexual intercourse or sexual act by a man with his own wife, the wife not being under the age of 15 years, is not rape.” 

Certain situations and the offense of rape are as follows:

1. Above 18 +Consent= No Rape
2. Above 18 + No Consent= Rape
3. Below 18 + With or without consent= Rape
4. Above 15 + Girl being Wife + With or without consent= No Rape
5. Below 15 + Girl being wife + With or without consent: Rape 

Keeping in view the above scenario, it appears that the Indian Penal Code has:

1. Saved the institution of marriage, and 
2. Endorsed, indirectly, the fact of child marriages taking place in the society and as per personal laws (because sexual intercourse with a wife who is between 15-18 years of age, does not constitute rape). 

Law Commission of India, 205 Report on Child Marriage, 2008 

The Law Commission of India Report in 2005 recommends the following things:

• The child marriage below 18 for both girls and boys should be prohibited. 
• The marriage below the age of 16 be made void and while those between 16 and 18 be made voidable. 
• The provision relating to maintenance and custody should apply to both void and voidable marriages. 
• Registration of marriage be made compulsory.

Personal Law and Child Marriage: Validity and Consequences 

Child Marriage in Hindu Marriage Act, 1955 

Child Marriage under the Hindu Marriage Act, 1955 is neither void nor voidable. The silence on the part of the legislature in Section 11 & 12 and express rule in the form of provision of Section 13 (2) (iv), renders it as valid. As a result of silence on the part of the legislature in Section 5, 11 & 12 and express provision under Section 18 of Hindu Marriage Act, child marriage is valid as seen in the case of Manisha Singh vs. State of NCT 

In Neetu Singh VS the State & Ors. the High Court of Delhi held that the marriage of minor is neither void nor voidable, but is punishable.

Under the Hindu Marriage Act, none of the parties have the option to repudiate the child marriage by way of a decree of nullity. The High Court of Rajasthan in Sushila Gothalal vs. State of Rajasthan directed that State should take necessary steps to stop the menace of child marriage by punishing all involved in such marriages. As a result of which, the Chief Minister of Rajasthan had made a special appeal to all its people in the State to prevent these child marriages.

Nevertheless, a female child has been given right to repudiate the marriage under Section 13 (2) (4), by way of divorce. In Roop Narayan Verma vs. Union of India, the High Court upheld the constitutional validity of Section 13 (2) (4) of the Hindu Marriage Act by terming it as the exercise of power by the legislature under Article 15 (3) of the Indian Constitution.

In the wake of silence on the part of the legislature under Section 11 and 12 of the Hindu Marriage Act, 1955 and express provisions in the same, the status of child marriage in Hindu Marriage Act, 1955 appears to be uncertain. There is a possibility of two arguments in this context: 

1.  That the child marriage in Hindu Marriage Act, 1955 is not valid in view of Section 5, or
2. That the child marriage in HMA is neither void nor voidable but renders valid. 

It would be further proper to refer to some judicial pronouncements, in order to know the judicial position: 

In P. Venkataramana vs. State, the Andhra Pradesh high court noted that such marriage in Hindu Marriage Act, 1955 is not void, by observing that had the lawmakers intended that they would not have given to a wife the right to repudiate her marriage solemnized before the attainment of the age of 15 years. Moreover, the high court observed that neither under Section 11 nor under Section 12 of the Hindu Marriage Act, 1955 there is any mention of marriage in contravention of Section 5 (iii).

Supreme Court in Lila Gupta vs. Lakshmi Narayan, laid down that though Section 5 (iii) of the Hindu Marriage Act prescribes a minimum age of marriage, a breach of this condition does not render the marriage void. The court, in this case, observed that it would be hazardous for marriage laws to treat a marriage in breach of a certain condition as void even though the law does not expressly provide for it. This case was concerning the rights of a widow to inherit her deceased husband’s property against the claims of her brother-in-law and nephew who had challenged the validity of her marriage. 

The same approach was taken by the Karnataka High Court in V. Mallikarjunaiach vs H.C. Gowramma. In this case, the husband had sought a declaration from the trial court that his marriage was void since he had not completed the age of 21 at the time of marriage. According to the court, the law does seek to discourage marriage of underage boys and girls but not to the extent of making the marriage void or voidable. 

Andhra Pradesh High Court in Kokkula Suresh vs State of AP, held that such marriage is neither void nor voidable but valid. Court also recognizes the husband as the guardian of the girl child (female spouse) and he was entitled to her custody. 

However, Madras High Court in T. Siva Kumar vs Inspector of Town Police Station has taken a completely different outlook. It was held that even though a marriage contracted by a person with a female of fewer than 18 years is voidable and subsists until it is annulled by the Court, the marriage though not invalid but is also not a valid marriage in strict sense and the male does not have all the rights which would otherwise emanate from a marriage which is valid in a strict sense. 

Child Marriage in Muslim Personal Law (MPL) 

Capacity in which a Muslim can marry: 

1. Sound mind 
2. Majority

Majority as per Muslim Personal Law is presumed that a Muslim attains majority at the age 15. Privy Council in Nawab Sadiq Ali Khan vs. Jaya Kishori said that the majority in the case of a girl is attained at the age of 9, whereas Hedaya law states that the earliest period for a boy is 12 years and for a girl is 9 years. 

 Marriage of a Minor Muslim as per Muslim Personal Law

The marriage is consummated when the Muslim is below the above-mentioned age and is a minor. The marriage of a minor may be solemnized with the consent of a guardian. Such a marriage, although valid, is capable of being repudiated by the Muslim minor through the option of puberty.

Consequences of a Minor’s marriage (Child marriage) in Muslim Personal Law:

In order to know the consequences of minor’s marriage in MPL, the following points must be taken into consideration: 

1. Marriage of two Muslims who have attained the age of puberty i.e. Major is VALID.
2. Marriage of two Muslims who have NOT attained the age of puberty i.e. Minor is INVALID. 
3. Marriage of two Muslims who have NOT attained the age of puberty i.e. Minor but the marriage is with the consent of guardians is VALID. 
4. Marriage of two Muslims who have NOT attained the age of puberty i.e. Minor but the marriage is solemnized with the consent of the guardians, then the minor (both parties) on attaining puberty, may repudiate the marriage with the consent of a guardian, provided marriage is not consummated (Option of Puberty).
5. Marriage of two Muslims who have NOT attained the age of puberty i.e. Minor but solemnized with the consent of guardians then the female spouse can divorce the male spouse under Section 2 (vii) of Dissolution of Muslim Marriage Act, 1939, provided marriage is not consummated (Right of divorce).

 The option of puberty and Repudiation of marriage

“Option of puberty” is a right which is given to both the parties of the Muslim marriage to repudiate i.e. to cancel the marriage, if solemnized during minority, with the consent of their guardian. For the purpose of marriage in Muslim Personal Law. They can exercise this option on attaining the age of 15, as this is the age where it is presumed that parties are major so far as marriage is concerned. As far as the exercise of option of repudiation is concerned, it is must that the child marriage (marriage solemnized during minority) must be valid (must have been done with the consent of legal guardians).

Following are the ingredients which are to be established in order to exercise this right: 

1. Marriage during minority with the consent of father or guardians for the said marriage, and 
2. Attainment of Puberty (Majority i.e. 15). 

In Behram Khan vs. Akthar Begum , it was held that ‘Consummation of marriage before the age of puberty does not deprive the wife of her option. But the consummation of marriage after attaining puberty disables the person from exercising the right of repudiation/option of puberty. 

Repudiation of marriage

Repudiation of marriage is an act of either of the parties to annul or cancel the marriage solemnized. It is the personal declaration or the wish of a person to declare so, unlike in the Hindu Law, Muslim law has permitted both the parties to the marriage to exercise this option. 

Modality & Consequences of Repudiation of Marriage

Repudiation is an act of parties thereby either of the parties to the marriage can avoid the marriage, by expressing/pronouncing/communicating, the cancellation of marriage. However, there is a time limit for the same for wife it is till she attains the age of 18 and in case of a boy i.e. the husband, there is no such time limit.

An individual act of cancellation, per se, cannot avoid the marriage or marital tie. The necessary court order/decree/judicial confirmation is a must to avoid the same. In the meantime, the parties remain married and

1. If either of them dies, the other will inherit to him or her in the capacity of a spouse.
2. If establishes a sexual relationship that won’t be unlawful.

Divorce on the basis of Repudiation (under Dissolution of Muslim Marriage Act, 1939)

Section 2 (vii) of the Dissolution of Muslim Marriage Act, 1939 states that: …that she having been given in marriage by her father or another guardian before she attained the age of 15 years, repudiated the marriage before attaining the age of 18 years, provided that the marriage has not been consummated.

Interpretation of Section 2 (vii) 

1. Section of 2 (vii) is in the nature of the right of divorce, therefore applicable only to a valid Muslim marriage. 
2. This provision is applicable only to a female spouse.
3. No time limit is framed therein to exercise this right of divorce but for the act of repudiation, there is a limit i.e. till she attains 18 years. 
4. This provision has, by necessary implication, incorporated the age of puberty i.e. 15 years. 
5. For the purpose of divorce under this section, she has to establish a valid repudiation.
6. Section 2 (vii) has regulated her “right of repudiation” (option of puberty) in the sense that she has to exercise the said right within the span of three years i.e. between the age of 15 years to 18 years. 

Requirements u/Section 2 (vii): For the purpose of the exercise of the right of divorce as per this provision, the following essentials have to be satisfied by her: 

1.  That she was given in marriage by a father or guardian when she was a minor (Marriage during minority)
2. That she has repudiated the said marriage

1. After attaining puberty and 

1. b) Before attaining 18 years of age; (Repudiation of marriage “after” & “before”) and 

1.  Marriage has not been consummated (No consummation of marriage) 

 Loss of her Right of Divorce

Her right of divorce in this connection is lost the moment when: 

1. She fails to repudiate the said marriage before attaining 18 years (it shows her willingness to continue with the said marriage); 
2. She establishes sexual relationships with the male spouse (it shows her willingness to continue with the said marriage and sexual relationship and procreation are the legal incidence of marriage) 

However, the Rajasthan High Court in Shabnam vs Mohd Shabir , held that the girl would not lose her right of divorce if marriage is consummated before she attains the age of 15 years. 

Some of the judicial pronouncements for the age of puberty

Privy Council in Nawab Sadiq Ali Khan vs. Jaya Kishori, says that the majority in the case of a girl child is attained at the age of 9. 

Md. Idris vs. State of Bihar and Ors., Patna High Court ruled that as per the interpretation of Muslim law, by Mulla, in Mulla’s Text on Principles of Muslim Law, the age for a girl to attain puberty is 15 years of age. 

The similar has been reiterated by the Delhi High Court in Mrs. Tahra Begum vs. State of Delhi & Ors that the age of puberty is 15 years of age and girl is free to marry anyone of her choice, regardless of the consent of the legal guardian. Court acquiring the accused-husband of charge for kidnapping held that she is at liberty to decide when to marry and where to live. The Delhi high court laid down the following points in this connection:

1. Marriage solemnized after attaining puberty would not be void.
2. Age of puberty is the requirement of marriage under Muslim Personal Law.
3. Muslim girl is at the liberty to reside with the husband.
4. Muslim girl can marry without the consent of her guardian in the event of puberty.
5. Muslim Girl who attained puberty i.e. 15 years of age can marry and as such the marriage is not void.
6. Muslim Girl, however, has the option of repudiation of marriage.

But in the same year, ignoring well-settled law pertaining to the age of marriage in Muslim personal law, Karnataka High Court took a contrary approach in Mis. Seema Begum vs. State of Karnataka. In this case, the declaration was sought by a Muslim girl, who was 16 years of age when a petition was filed, that she is not governed by the provisions of Prohibition of Child Marriage Act, 2006 and in her case, it is the Muslim personal law, which has allowed her to marry on 15. The petition was rejected and no such declaration was issued in her case. Karnataka High Court, accordingly held:

1. That a Muslim girl is not free to marry on her own before the attainment of the age of majority or the required age of marriage i.e. 18 years of age as per the definition of “child” under Section 2 (a) of Prohibition of Child Marriage Act, 2006.
2. That the statutory law (Prohibition of Child Marriage Act, 2006) will prevail over the un-codified personal law (Muslim personal law). 
3. That Prohibition of Child Marriage Act, 2006 is applicable to all the Indian citizens uniformly irrespective of their religion. 
4. That despite Delhi High court ruling that a Muslim girl can marry before 18 years of age. 

Therefore, child marriage of two Muslims could be terminated in the following way: 

1. Avoidance of Marriage: Option of Puberty (followed by judicial order).
2. Avoidance of Marriage under Prohibition of Child Marriage Act: Decree of Nullity.
3. Dissolution of marriage: Divorce & Talaq.

Status of child marriage in Personal Laws

The post Child Marriage and the Laws Pertaining to it  appeared first on iPleaders.

This article is written by Akash R. Goswami of faculty of law,  Aligarh Muslim University.   In this article, he has discussed the constitutional remedies and right to approach the Supreme Court provided by the Constitution of India, and the concept of Public Interest Litigation. 

“Don’t interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties.”  

                                                                                              – Abraham Lincoln

Introduction

Rights make people powerful, although it is not necessary that all citizens have equal resources and wealth one thing is for sure that they have it in terms of equality, all the countrymen inherently by birth, have their fundamental rights. 

But to protect their rights people must have an alternative to enforce them. Article 32 works in that sense. With great power comes with great responsibilities, people use these rights as a weapon of harassment and PIL become the Industry of vested interest. Despite that, no one can be allowed to infringe on the rights of others. To ensure the safety of his/her rights people must be aware of the remedies provided in our constitution. Let us talk about in particular.

Click Here

Article 32 

In day to day life, people do some acts which result in the violation of someone else’s rights. They may not do so deliberately but their acts may result in the violation of rights. Some rights if contravene, people ask for compensation or damages like in contracts & torts. But if some rights especially the fundamental rights are violated then people seek to constitutional remedies.

“Constitutional remedies” is envisaged in our Indian Constitution under article 32 in Part III. Every citizen of India is guaranteed five fundamental rights, in totality it’s six but if any of the five fundamental rights are violated then the sixth fundamental right ensures people and protects other fundamental rights from being violated. concerning that, if any fundamental right is infringed, sixth fundamental right .ie. “Right to Constitutional Remedies” provides that people can enforce or claim these rights in the Hon’ble Supreme court.

Remedies for enforcement of the rights conferred by Article 32

This article contains four clauses:

1. People have the right to move the Court by appropriate proceedings for the enforcement of their rights granted by part III of the Indian Constitution. In other words one can move to enforce his/her right to the apex court in way of proper proceedings is assured. 
2. Apex Court shall have the power to Produce orders, directions, injunctions, and writs, including writs in the nature of habeas corpus, mandamus, quo warranto, prohibition and certiorari whichever may be suitable, for the enforcement of any of the rights conferred In part III. 
3. Parliament can empower any other court to issue directions, does not include Supreme Court & High court. M.V Plyee rightly claims the first three clauses of article 32, together make fundamental rights under the constitution real and forming the Crowing part of the entire chapter. 
4. The right to move to the Supreme Court shall not be suspended except provided by the constitution like in case of emergency.  In other words, the President of India may under article 358 make separate proclamation by which Article 32 remains suspended even the person’s right is violated. This is because individual liberty is not more important than the interest of states.

Right to constitutional remedies works on the Doctrine “Ubi Jus Ibi Remedium” which means when there is right there is a remedy. As the people of India guaranteed many rights so no one can violate these rights, then there must be some remedies to protect them.

In case Ram Singh vs Delhi [1], the Supreme Court of India observed that it is the duty of the supreme court to see the right, intended to be fundamental must be kept fundamentally.

A mere threat to infringement of fundamental rights is enough to justify the issue of the writ in case of Simranjit vs Union Of India[2]. 

 Article 226

Power to issue the writ is not only vested in the hands of the Supreme Court of India, but also in the hands of every High Court of India.  Article 226 empowers the High Court to issue any person or authority and state institution, including the government call for directions, orders or writs. Writs in the nature of habeas corpus, mandamus, prohibition, certiorari, quo warranto or any of them.

Article 226 has four clauses

1. Notwithstanding anything in Article 32, every High Court shall have the power throughout the territory in which High Court exercises its jurisdiction issue writs, orders and directions for the enforcement of right conferred in part III and for any other purpose. 
2. Power assured by clause (1) to issue directions,orders or writs by High Court within the territory exercising its jurisdiction in relation to the territory in which the reason of action, wholly or partially, arises for the exercise of such power, notwithstanding that the bench of such Government or authority or the residence of such person is not within those territories. 
3. Where a writ petition has been filed against the respondent party an interim order by way of injunction or stay has been passed against respondent without-

1. Providing to such parties, copies of the petition and all documents in support thereof.
2. Giving such a party an opportunity to be heard.
3. If such respondent party moves an application for removing the interim order and gives a copy of such application to the petitioner, the Court is required to decide such application within two weeks from the date on which such application is filed or on the date on which the copy of such application is provided to another side whichever is later. 
4. The power empowered to the High Court by this article shall not be in derogation of the powers entitled on the Supreme court by clause (2) of Article 32.

• Writ petition only praying for refund of money against the State is not maintainable observed in the case Suganmal vs State Of Madhya Pradesh[3].

• It is established that the remedy provided in Article 226 of the Constitution of India is a discretionary solution which means on its own will, and the High Court has always its discretion to refuse or to grant such grievances in certain circumstances even though a legal right might have been infringed.

Article 227  

This article States that every High Court shall have superintendence over all Courts and Tribunal within the territory having the jurisdiction except the court established by the armed forces.

High Court can, under Article 227

• Call for returns from such courts.
• draft and issue general to maintain rules and regulations for smoothing the practice and proceedings of such courts.
• Prescribe the mode in which books, documents, entries, and accounts be kept by the officers.
• Settle salaries and remuneration allowed to the sheriff and clerks of such Court. 

 Difference between Article 32 & Article 226

Writs

Writs are the formal written document bearing the name of the court, or other legal authority to do some act, abstain or refrain from doing something. These writs have been borrowed from England, where the history of writs had a long development and counted for more number of technicalities.

Under Article 32 & 226 of the Indian Constitution supreme court and the high courts have the power to issue Writs respectively. In India, first writs were issued by the Supreme Court at Calcutta later by the supreme court of Bombay & madras and since 1861 & 1937 by high courts and Supreme Court of India respectively. 

There are five types of writs which are as follows.

Habeas corpus

The term habeas corpus is derived from the Latin term which means “You must have the body”. In the legal context, it stands for habeas corpus Ad subjiciendum means writ for securing liberty. By the help of this writ Court direct the person or any authority and state institution whosoever detained/wrongfully confines another person, to produce the body of the prisoner before the court so as to decide by the court the validity, jurisdiction, and justification for such detention. The principle aim of this writ is to ensure judicial review of unlawful detention on liberty or freedom of an accused. And also enables an immediate claim of the right of a person as to his freedom.

Article 22  of the Indian Constitution provides that, if the police or any authority arrested the person is required to be produced before a magistrate within 24 specified hours of his arrest (excluding the journey hours) and miss out to do so would entitle the arrested person to be released.

This writ can not be granted where a person has been committed taken by police under an order from a competent court then its Prima facie (at first sight) the order does not appear to be without justification, jurisdiction or wholly illegal, hence writ of habeas corpus would not be work.

It is granted not only against state but also against the individual, where a person holds the wrongful detention of another person, in this case, it is the duty of the police to make necessary efforts and make sure that the detention of the person got released, but the police can not put under pressure to do the impossible.

In the case of the National Emergency imposed this Writ can not be issued and people can not seek the assistance of the court for illegal detention observed by the Supreme Court in Case A.D.M Jabalpur vs. Shivkant shukla[4]. Five  Judges constitutional bench gave this controversial judgment with a ratio of 4 out 5.

Quo Warranto  

This means what is your authority? This writ is used to Control the judicially Executive actions in the matter of appointment to public office under relevant provisions. This writ also helps in to protects citizens from the holder of a public office which he has no Right and calls upon the holder to public office to the Court on what Authority he is holding the office is a question. If he is not eligible for the office then the court directs the person to vacate the office and declares the office to be vacant.

This writ helps to maintain control over Executive from making appointments in public office against law and also protects the public from being deprived of public office to which the public has a right.

Quo Warranto also helps to prevent illegal usurpation of public office by an individual. To issue this writ there must be some conditions to be satisfied by the court that the office is in question must be public,created by the constitution or law or by statutory provisions and the person who is holding the office is not qualified to hold the office and the person has to show on what Authority he is holding the office. In the case of Jamalpur Arya samaj vs. Dr D ram[5], Patna High Court said that writ of Quo Warranto can not be issued against private association only public offices will be lying under this writ scope.

Mandamus

Derived from the Latin term meaning “We command”. It is issued by the Court to an authority directing to perform a public duty which is imposed on it by law. In other words, when a body omits to do Some act which it’s bound to do, it can be commanded to do the same.

Mandamus writs help to confines the limit of the body and exercise its Jurisdiction within the scope vested on it. To issue this writ there must be some conditions that are required to be fulfilled that the petitioner must have the legal right to the performance of the legal duty, the legal duty must be of public nature. The right sought to be enforced must be subsisting on the date of the petition and as a general rule mandamus is not issued in anticipation of injury. 

Mandamus can not be invoked against the President & Governor of the state in his personal capacities, moreover no mandamus can lie against an officer or member of parliament or an officer or member of State legislature in whom power is vested by the Constitution for Regulating procedure and conduct of the business for maintaining Order and conduct in parliament as well as state legislatures.

Certiorari     

In the literal sense, it means “to be informed” or “To be Certified”. It is issued by the apex/higher Court to the lower Court or to the Tribunal either to pass-on a case pending with the later to itself or to Squash the order of the later in a case. It is issued when there is an excess of jurisdiction or lack of jurisdiction or there is an error of law.

The writ of Certiorari is preventive as well as curative in nature and could be issued only against the judicial or quasi-judicial body and not against the administrative body. After 1991, the Supreme Court ordered that this writ can be issued against the Administrative body affecting the rights of individuals. But a writ of certiorari cannot be issued to produce a call for records or paper And proceeding of an Act or Ordinance and for Quashing such Act and Ordinance.

Prohibition

Stand for “order inaction” and issued by the Higher Court to the Lower Court or Tribunal Directing the judge or party to cease the litigation because the inferior court does not have jurisdiction to hear and decide before it. This writ is an extraordinary remedy, rarely used. Same as the writ of certiorari, this writ can be issued against the Judicial & Quasi-judicial body. 

The fundamental distinction between Certiorari & Prohibition that they are issued at different stages of proceedings. When a subordinate court takes up a matter for a hearing over which it has neither jurisdiction nor it has legal  power to decide the case the person against whom injunction/action is taken can proceed to the Higher Court for the affair of writ of prohibition on which order would be issued for refraining the subordinate court from continuing the proceedings and hearings .

On the other hand, if the court takes the matter and gives the decision which it’s not legally bound to do, the party would need to move to a higher court to quash the order.

Public Interest Litigation

Meaning

PIL stands for “PUBLIC INTEREST LITIGATION” Which simply means for the protection of public interest. PIL is a legal remedy initiated in a court of law for the enforcement of public interest or general interest in which masses have a peculiar interest by which their legal rights affected. In PIL it is not necessary that the aggrieved party itself approach the court anyone can introduce PIL even the Court itself or by any other private party. It is also not mandatory for the exercise of the jurisdiction of the Court, the victim approached the court personally. PIL is the power given to the general public by the Court through Judicial Activism, however, it is to be satisfied to the Court that the petition filed is for public protection, and not on the basis of lack of legal merit.

Concept of PIL

The concept of public interest litigation was initially planted in India by Krishna Iyer J., in 1976 in Mumbai Kamgar Sabha vs. Abdul Thai case[6], Moreover Indian PIL is the improved version of PIL of USA. Basically, public interest law provides legal representation to underprivileged groups and masses.

During the time of Emergency (1975-1977) the country witnessed the colonial nature of the Indian legal system, state repression and governmental lawlessness have been done on a wide scale, there is complete deprivation of civil and political rights. Many innocent people, including political opponents and journalists, were sent to jail, this will provide better circumstances and for the judges of the Apex Court to disregard the hindrance of the Anglo-Saxon procedure and give access to justice to the poor.

Before the 1980s, only the affected parties had the Locus Standi to file the case and continue the procedure and a non-affected person having no locus standi will not do so. However, all these scenarios gradually changed during the post-emergency period and Supreme Court tackles the problem of access to justice by radical changes and modification has been done in the requirement of locus standi and of party aggrieved.

Magnificent efforts of Justice P.N Bhagwati & Justice V.R Krishna Iyer been the main reason for the Juristic Revolution to convert the Apex Court of India into the Supreme Court for all the Indians.

First Case of PIL was reported in 1979 showing the inhuman conditions of prisons and trial prisoners and a new era of PIL proclamation is done by Justice P.N Bhagwati in SP Gupta vs. Union Of India[7]. In this case, held that any member of public action or group with bonafide intention invokes the writ of Jurisdiction from High Court and Supreme Court seeking redressal against violation of the legal or constitutional right of a person who due to social or economic or other reasons can not approach to the court.

Due to the influence of this case, PIL becomes a powerful weapon for the enforcement of public duties.

Importance of PIL

There is numerous importance of PIL, let us discuss below them-

• PIL is the better use of law to advance human rights and cover the scope of broad public issues.
• Through the concept of PIL court seek to protect human rights by creating a new regime and expanding the meaning of fundamental rights.
• Filing of PIL is an inexpensive remedy anyone can get relief easily and hence remedial in nature.
• PIL helps us to improve things, which is not done by the executive properly as the Judiciary haul up the executive.
• If a person is unable to produce sufficient evidence to support his/her case due to the economic and social cause, the Court may appoint a commission to look into the matter and collect the relevant facts about the case.
• Through judicial invigilation, Court seeks to maintain state institution or also protect the rights of minorities and countless efforts made through PIL to maintain a healthy environment.

Process of filling a PIL

 Any citizen of India can file a PIL for the sake of public welfare where the interest of the masses get affected under Article 32 in Supreme Court or under Article 226 in High Court and under Court of Magistrate under section 133 of CRPC. .A court can treat a letter or telegram as a Writ Petition and takes action upon it if some conditions collateral to it should be satisfied.

Public Interest Litigation has been logged in the same manner, as a writ petition is filed. If a PIL is filed in the High Court, then two copies of the petition have to be filed. And for the Supreme Court, then Five copies Also, an advance copy of the petition has to be served to each of the opposite parties, and this proof of service must be affixed on the petition. After that a Court fee of Rs. 50, for each number of the party, have to be affixed on the petition. Proceedings, in the PIL, start and carry on in the same manner, as other cases.

However, during the procedure and hearing of case proceedings, if the Judge feels that he may appoint the commissioner, to investigate the facts and allegations like pollution being caused, trees being cut, etc. After givings of replies, by the opponent party, or reapplication by the petitioner, the final hearing takes place, and the judge gives his eventual decision.

Subject Matter of PIL

Some categories are as follows which will be entertained as PIL

1. Bonded labor 
2. In the matter of exploitation of children
3. Non-payment of minimum wages
4. Petitions coming from jails, complaining about the harassment, speedy trial, death in jail as a fundamental right,  etc.
5. complaint against police for refusing to register a case,  bride-burning, etc.
6. Petitions against the cruel acts on women, in particular, harassment of bribe, bribe-burning, murder, rape, kidnapping, etc.
7. Petitions complaining harassment of persons belonging to scheduled caste and scheduled tribes
8. Petitions pertaining to environmental issues

Merits & Demerits of PIL

Aspects of Public Interest Litigation

(a) Remedial in Nature: The remedial nature of PIL is from traditional Locus standi rules. It indirectly incorporated the principles envisaged in part IV of the Constitution of India into part III of the Constitution. the longing and emerging of part IV into part III of the Constitution had changed the procedural nature of the Indian law into the dynamic welfare of public interest. In Bandhu Mukti Morcha v/s Union of India[8]. Example of this change in the nature of the judiciary and for juristic revolution.

(b) Representative Standing: Representative standing can be viewed as an innovative standing exception which allows a third party (not an aggrieved party) to file a habeas corpus petition on the ground that if the aggrieved party cannot approach the court himself. And in this context, the Indian concept of PIL is much wider as compared to the American. 

(c) Citizen standing: This doctrine marks a great expansion of all the court’s rule, and hence being a protector of an individual right to the guardian of the rule of law.

(d) Non-adversarial Litigation: The Supreme Court in case People’s Union for Democratic Rights v. Union of India[9], held that  point with all the emphasis on that public interest litigation is a totally distinct kind of litigation and unlike from the traditional litigation which is essentially of an adversary nature where there is a dispute between two parties, one making claim or seeking relief against the other (appellant) and that other opposing such claim or resisting such relief (respondent).

(e) Smoothing the strict rule of Locus Standi: The stern rule of locus standi has been cut short by way of  Representative standing, and Citizen standing which has explained earlier. In D.C.Wadhwa v. State of Bihar[10]. Supreme Court held that an applicant, a professor of political science who had done the relevant research and enormously interested in ensuring proper implementation of the constitutional provisions, challenged the practice which becomes the usage of the state of Bihar in proclaiming a number of ordinances without getting the approval of the legislature. The court held that the applicant as a member of the public has initiates  ‘sufficient interest’ to maintain a writ petition under Article 32.

The strict rule of locus standi has been moderate and a person who is acting in a bonafide (good intention)  and having sufficient interest in the proceeding of Public Interest Litigation will have a locus standi and he/she can approach the court to wipe out such violations of fundamental rights and genuine violation of statutory provisions, but not for personal gain or personal profit or political motive or for not any unlawful consideration. the court has to balance between two conflicting interests:

(i) nobody should be allowed to engage in wild and reckless allegations which result in harm in the character of others; and

(ii) nobody should be allowed to do public mischief and to avoid mischievous petitions which have no legal merit seeking strongly, for unlawful motives, is not justifiable by the executive and the legislature. It is unfortunate to note that on account of temporary proceedings initiated before the courts, number days are wasted, which could have been spent for the disposal of cases. Though the Supreme Court tries every possible effort in fostering and developing the concept of PIL and extending its arms of sympathy to the poor, ignorant, deserted or oppressed and the needy whose fundamental rights are infringed and violated and whose prayers go unnoticed, unrepresented and unheard.

(f) Epistolary Jurisdiction: The judicial activism played an important role and take the highest bonus when it’s ordered to wipe tears from some eyes. This jurisdiction is someway different from collective action. As anyone can send the petition in the form of a letter and postcard and it will be treated as a petition and there is no need to show Locus standi mere sufficient interest for public welfare with bonafide intention is enough. In order to that number of PIL cells were open all over India for providing the desk for help to the socially and weaker class of the society.

Factors that have contributed to the growth of PIL are as follows:

• The nature of the Indian Constitution. Unlike Britain, India has a written constitution and Part III ( which includes Fundamental Rights) and Part IV (Directive Principles of State Policy) provides a structure for maintaining relations between the state and its citizens and between citizens and among themselves.
• India has the most progressive social legislation to be found anywhere in the world either relating to bonded labour, minimum wages, environmental issues, etc. This has made it quite easier for the courts to force the executive and state institutions when it is not performing their duties in ensuring the rights of the poor as per the law of the land.
• Political, social and economic rights given in the Indian Constitution under Part IV are not justifiable, courts have creatively put these into fundamental rights thereby making them judicially enforceable. For example, the right to life in Article 21 has been enlarged to include the concept right to free legal aid assistance, the right to live with dignity, the right to education, the right to work, etc.
• In PIL cases where the complainant is not in a position to provide all the necessary evidence, either because socially economically weaker, courts have appointed commissions to collect relevant information or facts and present it before the Court.

The mechanism for protection of Human Rights through PIL

Features of PIL is the better mechanism of PIL for securing Human rights, the courts seek to safeguard human rights in the following ways:

1) By inventing a new regime of human rights and by making a wider concept of the fundamental right to equality, life, and personal liberty.  this results in, the right to a speedy trial, free legal aid, dignity, means and livelihood, education, medical care, clean environment, right again sexual harassment, solitary confinement, bondage and exploitation and so on emerge as human rights. These new re-conceptualized rights enforced through PIL.

2) Transformation towards a democratic state helps to assure justice. This is done by enlarging the scope of the traditional rule of locus standi. Any public or social action group can approach the court on behalf of the victim. Courts observation can be drawn even by writing a letter or sending a telegram. This is called epistolary jurisdiction.

3) By means of new kinds of relief under the court’s writ jurisdiction. For example, the court can award temporary compensation to the victims of governmental lawlessness. This contradicts the Anglo-Saxon model of adjudication. The grant of damages in PIL matters does not prevent the aggrieved person from bringing a civil suit for damages. In PIL cases the court can furnish any relief to the victims.

Landmark cases pertaining to PIL

1. Prem Shukla v. Delhi Administration [11]. In this case, a prisoner sent a letter to the judge of the court, complaining about the forced fetter on him and demanded protection against humiliation. The court considered the PIL petition and orders necessary directions considering the calm rule of locus standi. 
2. Dr.Upendra Baxi (I) vs. State of Uttar Pradesh & another [12] In this case, two law professors wrote a letter to the court and telling about the inhuman conditions in the Agra Protective Home for Women. The court considered the letter as a PIL and asked to improve the condition of the protective home for women. 
3. Vishaka vs. State of Rajasthan[13]. In this case, a woman, who was a social worker, was brutally raped while she was in the course of her employment and on behalf of her; an NGO filed a PIL in the Supreme Court for the protection of the rights of women at the workplace. The court accepted the petition and laid down the guidelines to safeguard the interest of women at the workplace and after that Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was enacted based on the guidelines laid down by Supreme Court in this case. 
4. M.C. Mehta vs. Union of India & Others[14]. In this case, a PIL was filed to prevent and protect the Taj Mahal from the harmful gases and toxic gases released by the industry near the Taj Mahal. The court accepted this petition as it was for the protection of the environment from exploitation and the court ordered to put a Ban on 299 industries from using coal and asked them to change over to Compressed Natural Gas (CNG). 
5. Hussainara Khatoon vs. State of Bihar[15]. This cause many people regarded as have the first PIL in India as well. In this case, the attention of the Court was on the inhuman condition of under-trials prisoners in the state of Bihar,  who had been in detention pending trial for periods far in superfluity of the maximum sentence for their offences. The Court not only ordered to make the right to a speedy trial regarding the main issue of the case but also passed the order of general release of about 40,000 under-trials who had undergone detention beyond such a time period.

Role of Judiciary 

In India, the Supreme Court makes the lead by allowing volunteer social activists to represent the interests of the poor and weaker sections of the society in judicial proceedings. By fattening the doctrine of locus standi in filing the petition and court introduced epistolary jurisdiction, which means to treat a letter written on behalf of an aggrieved person as a petition and examine the matter of the grievance.

In India judicial activism played a very important role. Generally speaking, when the Court takes up a matter for hearing or adjudication, it must be satisfied that the person who approaches the court has sufficient interest in that matter, It was made so in favour of social cause and the court accepts its validity make to set things right.  Undoubtedly, such litigation has provided each and every citizen of India access to all the courts of the country.

It has developed in a way to democratize the judicial process through radical changes. Moreover, the PIL has contributed to the rise of a form of judicial scrutiny for governmental institutions ranging from hospitals, prisons, covering issues of health, environment, safety, security, privacy and etc.

Judicial activism is a very frequent and common phenomenon for one and a half decades. Its foundation laid down in the year of 1986 by Justice P.N. Bhagwati who bring the tradition of hearing a PIL even on a postcard and telegram. Justice Bhagwati has clearly stated, “The Supreme Court has chosen to take up a proactive and newly conceptualized approach for the last two years, particularly, having regard to the peculiar socio-economic conditions prevailing in the country.

Hindi meaning of Public Interest Litigation

                                            जनहित याचिका 

Conclusion 

This article basically deals with the remedies which are mentioned in our Indian constitution under part III of articles 32. And in this article any person whose legal or fundamental rights violated he/she move to the Supreme Court and High Court for the enforcement of their Right under article 32 and 226 respectively. Both the articles empower the courts to issue the decree of writs.

Writs are formal legal documents bearing the order of the court including the nature of habeas corpus, mandamus, Quo warranto, certiorari, and prohibition. It is circumstantial depending on the facts of the case that which writs will be issued to resolve the problem, however High court has the discretionary power in this regard.

Judicial activism enables more people to access to court through PIL, it is a writ petition filing for the cause of public welfare. Anyone can file PIL as PIL is for the protection of human rights. Judiciary provides an opportunity through PIL to a weaker section or socially backward people to get justice in an inexpensive way, this leads to a democratized country and juristic radical revolution in context to social, political, and economic justice as mentioned in the basic structure of the constitution.

To know more please Click Here.

References

1. 1951 AIR 270
2. AIR 193 Sc 280
3. AIR 1956 Sc 1740
4. 1976 Ssc 521
5. 1954
6. 1976 AIR 1455
7. 1981
8. (1997)  10 SSC 549
9. 1982 AIR 1473
10.  1987 AIR 579
11. 1980 AIR 1535
12.  (1983) 2 SSC 508
13.  (1997) 6 scc 241 
14.  https://www.casemine.com/judgement/in/5609ad0ae4b01497114105b5.
15. https://indiankanoon.org/doc/10671014/

The post Right to Constitutional Remedies appeared first on iPleaders.

This article is written by Shreya S.K Pandey, a student of Law College Dehradun Faculty of Uttaranchal University. She has elaborately discussed the types of emergencies, its effects, grounds, duration, etc. along with the study of emergency provisions and its impact. 

Introduction                                                    

India is a federal country of “its own kind”. It acquires unitary features during an Emergency. Due to this reason, Dr B.R Ambedkar called the Indian Federal system as unique because it becomes entirely unitary during an Emergency. During an Emergency, as Constitutional machinery fails, the system converts itself into a unitary feature. The Emergency is a period of depression where all Fundamental Rights of a person is taken away except article 20 and 21.

Click Here

Emergency Definition                                            

An emergency is a situation which arises due to the failure of the government machinery which causes or demands immediate action from the authority. 

According to the Black Law’s Dictionary, “Emergency is a situation which requires quick action and immediate notice as such a situation causes a threat to the life and property in the nation. It is a failure of the social system to deliver reasonable conditions of life” [1]. 

Emergency meaning in Hindi

Emergency in hindi means “ आपातकालीन” or ““Aapaatkaaleen”.

Types of Emergency

Part- XVIII of Indian Constitution deals with the Emergency provisions i.e. Articles 352 to 360. There are three types of Emergencies mentioned in the Constitution. The power of imposing all three types of Emergencies is vested upon the President of India. The concept of Emergency was borrowed from the Weimar Constitution of Germany. The three types are as follows –

1. Article 352 – National Emergency

2. Article 356 – President’s Rule

3. Article 360 – Financial Emergency 

Grounds for the Proclamation of Emergency

National Emergency

Grounds for the proclamation of National Emergency are as follows:

War

When a country declares a formal war against India and there is a violent struggle using armed forces, the President of India may impose National emergency.  

External Aggression

When a country attacks another country without any formal declaration of war. It is a unilateral attack by any country towards India. In such circumstances, the President of India may impose a National emergency.

Armed Rebellion

Emergency due to the armed rebellion may be imposed by the President of India when a group of people rebel against the present government which will lead to the destruction of lives and property.

State Emergency  

Grounds for the Proclamation of the State Emergency is a failure in the Constitutional machinery of the state. In this Emergency, when Governor of the state is satisfied that the State is not functioning in accordance with the Constitutional provisions then he may write his report to the President of India. And the President, if satisfied by the report, may impose the President’s rule. After that, the President will become the executive head of the state.

Financial Emergency

Grounds for the Proclamation of the Financial Emergency is that when a state arises in the Country which leads to a financial crisis in India, the President of India may impose emergency to tackle the situation. In this situation, the Central Authority may reduce the budget or cut the budget given to the State, salaries of the Government officials may be deducted.

Reason for Emergency in India

National Emergency

Article 352 deals with “Proclamation of Emergency” or “ National Emergency”. The President of India has the power to declare an Emergency in India or any part of India by making a Proclamation. Under this Article, if the President is satisfied that a grave emergency exists in India due to which there is a threat to the security of the nation, he may declare Emergency on the grounds of-

1. War
2. External Aggression
3. Armed Rebellion 

The word “Armed Rebellion” was substituted for “Internal Disturbance” by the Forty-fourth Constitution Amendment Act, 1978. 

National Emergency has been imposed three times in India so far. The time period in which this happened was from 1962-1977. Brief description of the emergencies are as follows –

An emergency was imposed at the time of Indo-China war by the then President of India Dr Sarvepalli Radhakrishnan on the ground of external aggression from October 26, 1962, to January 10, 1968. 

External Aggression means when a country attacks another country without any formal declaration of war. It is a unilateral attack by any country towards another country. For example – If a country attacks India without any formal declaration of war, in such a scenario, the President of India may impose a National Emergency.

Again, an Emergency was imposed from December 3, 1971, to March 21, 1977, by the then President of India Mr V.V. Giri during the Indo-Pakistan war. The reason was the same as above i.e. external aggression.

The third Emergency was imposed due to a clash between Legislature and Judiciary. Mrs Indira Nehru Gandhi, the then Prime Minister of India with the permission of the then President Fakhruddin Ali Ahmed declared an emergency. It was imposed for a period of 19 months from June 25, 1975to March 21, 1977.

State Emergency

Article 356 deals with State Emergency or President’s Rule in the State (“Provisions in case of Failure of Constitutional Machinery in States”). The President of India has the power to proclaim State Emergency when he receives a report from the Governor of that particular State explaining that the situation in the State Government is such that they cannot carry out the Constitutional provisions.

President’s Rule has been imposed on the State of Jammu and Kashmir for six years and 264 days from January 19, 1990, to October 9, 1996. The State has always been a target for many external elements. The Indian Government imposed President’s Rule to control the situation of Jammu & Kashmir which was facing a military threat from Pakistan.

Punjab was under the President’s Rule for 4 years and 259 days from June 11, 1987, to February 25, 1992. The reason for imposing President’s rule in Punjab was the control of Khalistan Commando Forces which was a Sikh organisation which was involved in the genocidal attack on Hindus.

Till January 2016, the President’s Rule has been imposed 124 times in India. During Indira Gandhi’s regime, the President’s Rule was invoked for maximum time. The President’s Rule under her cabinet was imposed 35 times in various states.

The case S.R Bommai v. Union of India[2] is a landmark case in respect of imposing President’s Rule in any State. The case laid down the power of the Union Government in relation to the State Emergency under Article 356 of the Indian Constitution. Judicial Review of the President’s Rule was made possible by this case. While giving the judgement, the court depended on Sarkaria’s Commission Report, 1987.

President’s Rule can be judicially reviewed and the President becomes answerable only when the Emergency is imposed in certain cases, which are:

1. When there is Constitutional non-conformity by the State with the direction of Union
2. When there is a political crisis in the State.
3. When there is an internal subversion in the State

Financial Emergency

Article 360 deals with “Provisions as to Financial Emergency”. Financial Emergency is imposed by the President when there arises any situation which causes a financial threat to India or any part of India.

Financial Emergency has never been imposed in India. However, in 1990, the possibility of financial emergency emerged but the situation was controlled by the Indian Government as in July 1991 the Reserve Bank of India pledged 46.91 tonnes of Gold with Bank of England and Union Bank of Switzerland to raise $400 million.

Emergency Provisions

1. Article 352: Proclamation of Emergency.
2. Article 353: Effect of Proclamation of Emergency.
3. Article 354: Application of provisions relating to the distribution of revenues while a proclamation of emergency is in operation.
4. Article 355: Duty of the Union to protect States against external aggression and internal disturbance.
5. Article 356: Provisions in case of failure of constitutional machinery in State.
6. Article 357: Exercise of legislative powers under Proclamation issued under Article 356.
7. Article 358: Suspension of provisions of article19 during Emergencies.
8. Article 359: Suspension of the enforcement of the rights conferred by Part III during emergencies.
9. Article 360: Provisions as to Financial Emergency.

Article 352

Article 352 (Part XVIII) talks about “Proclamation of Emergency”.  

Clause 1 states that National Emergency may be imposed by the President if he is satisfied that there exists a grave situation due to which there is a threat to the security of India or any part of the territory because of:

• War
• External Aggression
• Armed Rebellion

The proviso of Clause 1 states that an Emergency may be proclaimed by the President even when there is no actual occurrence of war, external aggression, and armed rebellion. In this case, the President must be satisfied that there is an imminent danger. 

Clause 2 states that another Proclamation may be issued to revoke and to make any variation in the previous Proclamation. 

Clause 3 states that the President of India may declare an Emergency when Union Cabinet (Council of Minister headed by the Prime Minister) advice to him in writing. 

Clause 4 states that before issuing Proclamation it is required to be placed before both the Houses of Parliament and shall end its effect at the expiration of one month unless both the Houses of Parliament approve it by resolution before the expiration of the said period. 

Clause 5 states that proclamation approved in the second resolution shall have an effect up to six months and on expiry of six months, it will end to operate unless it is revoked in between the period. 

44th Constitutional (Amendment) Act, 1978

The imposition of Emergency stressed the legislature to think again about the Constitutional provisions that provide power to the executive to supersede the judiciary hampering the basic structure of the Indian Constitution.

Under Article 352, the amendment had substituted the ground of “Internal Disturbance” with “Armed Rebellion”. The President is allowed to impose emergency only when the Union Cabinet communicates to him in writing about their decision.

The Proclamation is required to be approved by both the houses of Parliament by resolution within a month instead of two months by a total majority of the membership of each house of Parliament and by the ratification of not less than 2/3rd members present and voting in each house instead of a simple majority.

Under Article 356, the period for extension of a Proclamation from one month has been amended to six-months. Proclamation in the first instance can only be exceeded for six months.

Case Study

Indira Nehru Gandhi vs. Shri Raj Narain & Anr[3]

Case No:- Appeal (civil) 887 of 1975

Bench:- A.N. Ray J., H.R Khanna J., K.K Mathew J., M.H Beg J. and Y.V Chandrachud J.

Facts

Raj Narain was a contender from Rae Bareilly Constituency in the 5th Lok Sabha Election 1971 against Indira Nehru Gandhi. Congress won the election with a majority in 1971 and Mrs Gandhi took the oath as a new Prime Minister of India. After the result of elections, Raj Narain approached the Allahabad High Court and filed a petition against Indira Nehru Gandhi contending that she had performed her election using corrupt practices.

Allahabad High Court observed in the case Raj Narain v. State of Uttar Pradesh[4] that Indira Gandhi was guilty, as she misuses Government machinery under section 123(7) of Representation of Peoples Act, 1951. Indira Gandhi was barred to contest elections for six years and she was forbidden to continue as a Prime Minister of India. 

Further, the court observed that “Rules of evidence that prevent disclosure of certain government documents in court proceedings may be overridden if the public interest in disclosure outweighs the public interest in keeping documents secret”[5].

The judgement led in a declaration of National Emergency under Article 352 by the then President of India Fakhrudeen A. Ahmad. The reason given for imposing an emergency was “Internal Disturbance”.

Raj Narain’s case was on conditional stay up to their appearance in the Supreme Court on August 11, 1975. However, on August 10, 1975, Thirty-Ninth Constitutional (Amendment) Act, 1971 was done and it inserted Article 329A which bar the Supreme Court to entertain the matter. Further on one can question the election of Prime Minister, President, Vice- President and the Speaker of Lok Sabha.    

Issues 

Whether the 39th Constitutional (Amendment) Act, 1971 was Constitutionally valid?

Judgment

Referring to the landmark judgment of Kesavananda Bharati v. State of Kerala[5] for the first time the Supreme Court observed that Clause 4 of Article 329A is violative and unconstitutional. It violates the principle of separation of power as it provides functions of the judiciary to the legislature. The amendment violated the “Rule of Law”.

The Apex Court finds the 39th Constitutional Amendment Act, 1971 as violative of the basic structure of the India Constitution and unconstitutional and therefore declares it as void.

Effects of National Emergency

Under Article 358, National Emergency suspends the rights guaranteed under Article 19 of the Indian Constitution. Also, other Fundamental Rights get suspended under Article 359 except Article 20 and 21.

Article 20 of the Indian Constitution deals with the “Protection in respect of conviction from offences”. This Article is pillars of all the Fundamental Rights which are guaranteed by the Indian Constitution. It protects the right of an individual in case of conviction.

Article 21 of the Indian Constitution deals with “Protection of life and personal liberty” because no person shall be deprived of his life and personal liberty except procedure established by law.

Under this kind of Emergency, the State Government comes under the direct control of the Central Government. The State Government has to work as per the direction is given by the Union.

The distribution of financial resources between the Union and the State may be suspended by the President.

The Parliament acquires power over the subjects of the State List which ceases on the expiry of six months.

Article 356

Part XVIII, Article 356 talks about “Provision in case of failure of constitutional machinery in states” or “President’s Rule”.

The State Emergency or President’s Rule is imposed by the President of India when the  Constitutional machinery of State collapse and is unable to carry in accordance with the Indian Constitution. The President will impose an emergency when he will get a report of such a situation from the Governor of that particular state.

The Governor will report about the situation in the State that the government is unable to carry out in accordance to the provisions of the Constitution and the Emergency imposed upon such a report shall have an effect up to six months, after the expiry of which Emergency will end to have an effect on the State.

The maximum period for the State Emergency is three years after which it can be extended after a Constitutional amendment. It requires constant approval from the Parliament every six months.

Imposing of the State Emergency continuously became arbitrary in India. In the landmark judgment of State of Rajasthan & Ors v. Union of India[7],  the Supreme Court observed that Courts have no power to review the Proclamation passed under Article 352. Imposing the State emergency continuously becomes arbitrary in India due to this reason and, hence, the Supreme Court finds it necessary to overturn the decision.

In the case, S. R. Bommai V. Union of India[2],  the Supreme Court observed that, under Article 356, President of India has restricted power and they are subjected to judicial review. The Supreme Court has the power to declare the emergency void even if both the houses of Parliament passed the Proclamation.

Effects of State Emergency

During the State Emergency or President’s Rule, the entire State administrative machinery is transferred to the Union. President becomes executive head of the State and Governor works under his name. 

Legislative Assembly of the state may be dissolved or it may be suspended. Parliament took over the charge of making laws in the 66 subjects of the List-II i.e. State List. All the ministers of State Legislative assembly were barred from performing any action as every money bill is required to be first referred to the Parliament for approval.

State’s High Court functions independently in such a situation. There is no effect of an emergency in the State Judiciary. High Court may even entertain the petition filed against the President’s Rule. In 2016, the Congress Government approached the Nainital High Court against the President’s Rule imposed under Narendra Modi’s regime.

It was imposed by the then President of India Pranab Mukherjee. The High Court of Uttarakhand gave its verdict in favour of Harish Rawat’s government and declared to restore the Congress Government in the State of Uttarakhand. Later, the judgement was upheld by the Supreme Court of India and the Congress Government continued its period of governance.

How many times State Emergency declared in India 

 There are different circumstances under which the President’s Rule is imposed, these are:-

1. When the coalition government in the State collapses. 
2. Law and orders are not followed in the State.
3. Failure to elect Chief Minister by the State Legislature. 
4. Postponement of the State Elections due to any reasons.

In India, till 2018, the President’s Rule was imposed 126 times by the President of India. Maximum times the President’s Rule was invoked during Indira Gandhi regime i.e. 35 times.

Difference between the National Emergency and President’s Rule                        

Article 360

Part XIII, Article 360 talks about “ Financial Emergency”.

Financial Emergency is proclaimed by the President of India if he is satisfied that a situation of financial instability has arisen in the nation or any part of the nation. Emergency imposed under Article 360 shall not have effect after the expiration of two months from the date it was issued unless both the Houses of Parliament approves it by passing a resolution.

The situation of 1991 led to the circumstances of the financial crisis. But it was solved after introducing New Economic Policy by Economist Dr Manmohan Singh. No financial emergency was imposed so far in India.

Effects of Financial Emergency

During the Financial Emergency, Parliament has the power to reduce the salaries and allowances of the people working under the Union or the State Government. Financial and Money Bills passed by the State Legislature of the State will be sent to the President of India for his consideration.

Parliamentary approval and duration of the Emergency

In India, there are three types of Emergencies and all the three emergencies have a different duration up to which they remain in force. Parliamentary approval also differs in each emergency as the duration for approval of a resolution of emergency is different in each kind of emergency. The Parliamentary procedure for passing the resolution of Emergency is discussed as follows:

Parliamentary approval and duration of the National Emergency

Proclamation of National Emergency operates for the maximum period of six months subject to approval in every six months. There is no period prescribed up to which period may be extended. 

Under Article 352, when the President imposes an Emergency, it must be approved by both the Houses of Parliament by a resolution within a month from the date of its issue. Before the 44th Amendment Act, 1978, the period for approval was two months.

Meanwhile, Lok Sabha gets dissolved when the Proclamation was issued or Lok Sabha dissolved without approving the proclamation of Emergency, one month will be counted from the first day of sitting of the Lower House i.e. Lok Sabha after its reconstitution. It is required that in the meantime Rajya Sabha has approved the proclamation.

When both the houses of Parliament approve the proclamation, it will remain in force for six months and there is no maximum time limit for Proclamation. It is subjected to renew by both the Houses of Parliament through resolution in every six months.

If Lok Sabha gets dissolved within six months from the date of issue of the resolution without further approving the Proclamation of Emergency. In this situation, the Proclamation will survive until a month from the first day of Lok Sabha after its reconstitution. It is required that in the meantime Rajya Sabha has approved the Proclamation.

Every resolution for imposing Emergency or continuance of Emergency must be passed by either of the House of Parliament by a special majority, i.e. a majority of the total membership of that house and a majority of not less than 2/3rd members of the house present and voting.

Parliamentary approval and duration of the State Emergency

Proclamation of the State Emergency operates for the maximum period of six months or three years (subject to extension of the period).

Under Article 356, when the President imposes Emergency it must be approved by both the Houses of the Parliament by resolution within two months from the date of its issue after which it ceases to affect.

If Lok Sabha gets dissolved when a proclamation was issued, then it must be passed within 30 days from the first day of sitting of Lok Sabha after its reconstitution. In such situations, Rajya Sabha must approve the Proclamation.

The duration of six months can be extended, subject to the approval in six months. But every Proclamation passed under this Article cannot be extended for more than three years.

Parliamentary approval and duration of the Financial Emergency

Under Article 360, before the President imposes emergency it shall be approved by both Houses of Parliament. Otherwise, after the expiry of two months, from the date of issuance of the proclamation, it ceases to operate.

In case, Lok Sabha dissolves within two months, Lower House is required to approve the proclamation within thirty days from the first day of sitting after its reconstitution. Rajya Sabha must approve it in the meantime.

Why was Emergency declared in 1975

Background

National Emergency has been imposed three times in India. But, the Emergency of 1975 emerged as the Constitutional revolution in Indian history. The emergency of 1975 emerges as the dark phase for the Indian Constitution. The situation which leads to the Proclamation of Emergency was the fifth Lok Sabha election in 1971 in which Indira Gandhi won the election with a majority. Her opponent contender from Rai Bareilly was Raj Narain who approached the Allahabad High Court by filing a petition against Indira Gandhi’s election.

Allahabad High Court’s judgement was not acceptable to the Indira Gandhi who declared the decision against her. They barred her from contesting election for the next six years and the Court also barred her to continue the post of Prime Minister. To secure her post, Indira Gandhi came up with a strategy that shook the nation and questioned the democracy of India.

The President of India Fakhruddin Ali Ahmed imposed National emergency on June 28, 1975, a day before hearing of the case of Raj Narain v. State of Uttar Pradesh[4] in the Supreme Court as an appeal. The reason behind the Proclamation of the Emergency was “Internal Disturbance”. This Emergency was imposed when the emergency of 1971 due to the Indo-China war was already in force in India.

The situation was becoming out of control, the Prime Minister of India was barred to contest election for the next six years and her present post was declared to be occupied using ill corrupt practices. Military and Police started disobeying the orders of the Government.

Union Railway Minister L.N. Mishra was murdered at Samastipur. A tussle between the central, opposition, and the citizens created an environment of violence, threat and agitation. The Parliament approved the Proclamation of Emergency and subsequently, National Emergency was imposed in India.

1975 Emergency Reason

1. Allahabad High Court gave judgement against the Prime Minister. Judgement barred her to contest election for the next six years and finds her involvement in ill corrupt practices in 5th Lok Sabha election of 1971.
2. The demonstration was organised by the opposition under the supervision of Jayaprakash Narayan.
3. The relationship between the Judiciary and Legislative become weak as Parliament’s amendment of the Fundamental Rights was opposed by the Supreme Court.
4. An agitation that was launched in Gujarat in 1974 by the opposition party.

Consequences 

1. Freedom of the Press was suspended and Indian Raj Censorship was imposed under which newspapers get prior approval for publication.
2. Fundamental Rights of the citizens were suspended.
3. Opposition leaders were arrested and strikes were banned.
4. Under 42nd Constitutional (Amendment) Act, 1976, Elections of the Prime Minister, the President, and the Vice-President was kept out of the purview of justification from the court.
5. Provision of Habeas Corpus was neglected nullifying the rights of citizens under Article 21.

Effects

1. It led to the political crisis and Constitutional crises on the Indian polity.
2. Many new political parties emerged after 1977.
3. Emergency showed its impact on 1977 Lok Sabha election as Janta Party won the election.
4. Fundamental Rights of the citizens were strengthened.
5. The 44th Constitutional (Amendment) Act, 1978, was passed to clear the ambiguity of provisions of emergency.

To sum up, everything that has been stated, the 1975 Emergency emerges as the dark side of the Indian Judiciary. The emergency of 1975 was not less than a dark age of the Indian democracy because during this period India emerged as a weak democratic country. It affected the federal structure of democracy. It left the legislature to think about the provisions of the Constitution.

The Indian Constitution was continuously amending to favour one’s situation. Later, it becomes necessary to amend the Constitution again, but this time to maintain its supremacy.

In Kesavananda Bharati v. State of Kerala[5], the Supreme Court observed that “Parliament does not possess any power under Article 368 to amend the basic structure of the Constitution. Parliament has the power to amend the entire Constitution whenever it becomes necessary according to the requirement subject to, they cannot touch the Fundamental Rights which are the basic structure of the Constitution”.

List of National Emergencies

National Emergency was invoked three times from 1962 to 1977.

First National Emergency was invoked in October 1962 during Indo-China war. This Emergency remained in force till January 1968. It was imposed by the then President of India Shri. Sarvepalli Radhakrishnan. The reason for imposing this emergency was the Chinese attack in Arunachal Pradesh (North-East Frontier Agency). External Aggression was ground for invoking the Emergency.

The second Emergency was invoked in December 1971 during the Indo-Pak war. This Emergency remained in force till March 1977. This Emergency was imposed by the then President of India Mr V.V. Giri. The reason for imposing Emergency was war in Bangladesh. Ground for imposing this Emergency was External Aggression, the Indian military was clashing with the military of Pakistan to provide independence to East Pakistan.

The period of the war was 11 days and considered as the shortest war in the World. But, in the meantime, the third emergency was imposed in India. The third emergency continued the second emergency until 1977.

The third Emergency was invoked in June 1975 due to an internal disturbance in the Central Government. It remained in force till March 1977. This Emergency was imposed by the then President of India Fakhruddin Ai Ahmed. It was imposed when the second Emergency was already in existence. The real cause behind this Emergency was to secure the seat of the then Prime Minister of India Mrs Indira Nehru Gandhi who was found guilty in corrupt practices during her constituency campaign by the Allahabad High Court.

Impact of Emergency in India

Most of the time Emergency have an adverse impact on the country. Whenever an Emergency was imposed, whether it was the National Emergency or State emergency, it has questioned the democracy of India. More time it was imposed, more democracy shows its unitary structure. Impact of Emergency in India is:-

1. It deprives the citizens of their Fundamental Right.
2. The Freedom of Media was suspended.
3. Emergency overturned the Constitution.
4. Censorship orders barred newspapers to print anything without any prior consent from the government.

National Emergency of 1975 resulted in the arrest of many opposition leaders such as Morarji Desai, Jay Prakash Narayan, Atal Bihari Vajpayee and Lal Krishna Advani under Maintenance of Internal Security Act, 1971. The arrest of these leaders led to the filing of petitions in various High Courts challenging the detention. Indira Gandhi Government approached the Supreme Court because at the time of Emergency Fundamental Right under Article 21 remained suspended so this does not allow the writ of Habeas Corpus and the case came out to be known as the Habeas Corpus case. 

A.D.M Jabalpur Case[11]

Background

After defeat in the Lok Sabha election of 1971, Raj Narain challenged the election in the Allahabad High Court on the ground that she was guilty of corruption from her constituency. In the case of Raj Narain v. State of Uttar Pradesh[4], Allahabad High Court found Indira Gandhi’s involvement in corrupt practices and declared her election invalid. Indira Gandhi approached the Supreme Court where Justice Krishna Iyer put a conditional stay on Allahabad judgement. On a day before hearing of the case in the Supreme Court, President Fakhruddin Ali Ahmed declared Emergency on the ground of “Internal Disturbance”.

During the Emergency, Fundamental Rights remained suspended under Article 14 and 21, as well as any proceedings related to the enforcement of these Articles also remained suspended during the period of Emergency. Anyone who was causing a threat to the politics was arrested under Preventive Detention Law. Many famous political leaders were arrested under the Maintenance of Internal Security Act, 1971 (MISA) because their activities were causing a political threat to Indira Gandhi.

These leaders approached the High Court against the arrest and the High Court made a decision in their favour. Indira Gandhi’s Government filed a petition in the Supreme Court as a Fundamental Right under Article 21 is suspended writ cannot be issued.

Issues

1. Whether writ of Habeas Corpus is maintainable by the High Court questioning illegal detention when an emergency was imposed by the President?
2. Whether suspension of Rights and Liberty of any person under Article 21 is valid under Rule of Law?
3. Whether detenue have locus standi during the proclamation of emergency?

Judgement

Supreme Court observed that under Article 359 clause (1) no person has locus standi to approach the High Court under Article 226 to enforce his fundamental right of personal liberty in case of detention by filing a writ of habeas corpus. Fundamental Rights remain suspended during the Emergency. A person cannot invoke habeas corpus by filing an application under Section 491 of the Code of Criminal Procedure, 1973. Supreme Court declared Section 16A (9) of Maintenance of Internal Security as constitutionally valid.

Conclusion

Emergencies in India are imposed by the President after both the House of Parliament passed the resolution of the Proclamation of Emergency. Where the State Emergency or President’s Rule is quite frequently used by the President, National Emergency had become a part of history.

The national emergency of 1975 shows the weaker or dark phase of the Judiciary. Cases like Indira Gandhi v. Raj Narain and A.D.M Jabalpur v. Shiv Kant Shukla show loophole in the judicial system. Both cases do not recognize the Fundamental Rights of citizens during emergencies. There was a need to change the mechanism and it was done in Kesavananda Bharati’s case.

References

1. Black Law’s Dictionary, https://thelawdictionary.org/emergency
2. S.R Bommai v. Union of India, AIR 1994 SC 1918
3. Indira Nehru Gandhi vs. Shri Raj Narain & Anr., AIR 1975 SC 2299
4. Raj Narain v. State of Uttar Pradesh, AIR 1975 SC 865
5. Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461
6. State of Rajasthan & Ors v. Union of India, AIR 1977 SC 1361
7. A.D.M Jabalpur v. Shiv Kant Shukla, AIR 1976 SC1207

The post Emergency Provisions under Indian Constitution appeared first on iPleaders.

This article has been written by Namrata Kandankovi, student of Symbiosis Law School, Pune. The author of this article has written about the inception and evolution of One Person Company, its historical background, salient features of such a company and the advantages and disadvantages of the same.

Inception and Evolution of One Person Company

The unique concept of One Person Company came into being by the way of The Companies Act, 2013. The very first recommendation of the One Company Person was put forth by the expert committee which was headed by Dr JJ Irani in the year 2005. One person Company is being praised on a larger scale, as it provides a new range of opportunities to the ones looking forward to starting their own ventures with the structure of an organised business. One Person Company (OPC) has proved to be of great advantage to the young businessmen as it provides them all the benefits including that of access to bank loans, access to market, legal protection of business, access to credits and all this, in turn, comes in the name of a separate entity. Considering all the above-mentioned points, it can be said that, when thought in a broader perspective, one person company proves to be of great advantage to a number of budding new businessmen in the corporate world.

Taking into consideration the concept of India, it can be said that One Person Company is a comparatively new concept in the Indian scenario, while on the other hand, it has been proved as a successful business strategy in the UK and in addition to this even a number of European countries have succeeded in terms of formation and working of the One Company Person for quite a long period of time.

Historical background

According to The Companies Act, 1956, there is a requirement of at least 7 members for the formation of a Public Limited Company, and in terms of shareholders it requires 2 of the shareholders to be present in order to validate the company, and hence because of this very provision, there was no formation of One Person Company in the country of India. It was only under the Companies Act of 2013, Section 2(62), that there was a provision laid down for the formation and bringing into effect the One Person Company. The very meaning of One Person Company means a company which consists of only 1 member. Another important point to be taken under consideration is that Section 3 of the Companies Act classifies One person Company as a private limited company for the sake of all the legal purposes but with only one person in the company. In addition to this, all the provisions related to a private limited company is applicable to an OPC, unless they are expressly excluded by an independent clause.

Salient features of one Person Company

The concept of One Person Company has been defined under sub-section 62 of section 2 of the Companies Act, 2013. The particular section reads one person company as follows- ‘One Person Company means a company which has only one person in it’. Another significant point to be taken under consideration is that there can be no formation of more than 5 One Person Companies (OPC) by 1 person.

The important features of a One Person Company are listed as under:

• One Director– Every One Person Company must compulsorily require having one director and not more than that under any clause.
• One Shareholder– Every One Person Company is required to have only one shareholder, but at that same time there exists a provision for the appointment of at least 15 shareholders and this comes under the special clauses which are to be incorporated while doing the same.
• Nominee for the Shareholder– Every One Person Company requires having one person who would further nominate a shareholder, and this nomination would take place in accordance with the memorandum. The person whose name has been stated in the memorandum would tend to be a member of the company in the event of either death or incapability of the member of the One Person Company.

Who is eligible to form a one-person company?

The eligibility criteria for the creation of One Person Company requires the person to be a ‘natural person’ who is an Indian resident, and by the term Indian resident, it requires the person to have been staying in India for a period of not less than one hundred and eighty-two days. Such a person would be eligible for the incorporation of the One Person Company and also a nominee for the sole member of the One Person Company.

1) A-One Person Company can be formed under any of the categories mentioned below:

• A Company limited by guarantee.
• A Company which is limited by shares.

2) A-One Person Company, which is limited by shares shall comply with the following essentials:

• Shall have to be paid up to a sum of 1 lakh.
• Where there are restrictions to rights to transfer the shares.
• Where there are prohibitions placed on an invitation to the public to subscribe to the securities of the companies.

How can a One Person Company be formed?

It is Section 3(1) (c) of the Companies Act, which provides for the incorporation of the One Person Company. It further includes under its ambit that the company must have been formed by a lawful purpose, by one person. In addition to this, the members of the company are required to submit their names to the memorandum of the company, which would include the name of the one other person and this should be done with the prior consent of that person in the written form. The significance of the presence of one other person in the One Person Company is that, such a person would become the acting member of that company in the event of the incapacity or death of the subscriber of the company.

Such a person’s consent is required to be given in writing and there is an additional prerequisite of the consent to be filed with the registrar at the time of the incorporation of the company and this should be done along with the articles of association and the memorandum. When it comes to withdrawal of the consent of such a person, the same can be done through a manner prescribed by the said section under the Companies Act.

Conversion of One Person Company into a Private Limited Company

The conversion of the One Person Company to a Private Limited Company can take place under the following circumstances- Whenever the paid-up share capital of the one person company exceeds fifty lakh rupees or on the other hand, if the average annual turnover of the company exceeds two crore rupees during the relevant period of time, then under such cases the company ceases to be continued as a One Person Company. Eventually, such a company would be required to convert itself into a private limited company.

In contrary to the above, a private company registered itself under section 8 of the Companies Act having been paid a share capital of fifty lakh rupees or less or on the other hand if the average turnover of the company is turning out to be less than two crores in the relevant period, then such a company is under an obligation to convert into a one-person company by passing a special resolution which should be at the general meeting.

Advantages of One Person Company

One of the significant questions to be undertaken while dealing with the concept of one person Company is that- why would a person prefer a company to a proprietorship? Providing an answer to this question it can be said that the very rationale behind the One Person Company is to provide all the benefits of the incorporation while functioning as a sole proprietor at the same time. The advantages of the One Person Company can be listed as under:

• Legal Identity– One Person Company is known to have a separate legal identity from that of its shareholders, which means the company and the shareholders act as two different identities in all possible cases.
• Sole Decision Maker– In the One Person Company there exists only decision-marker. Hence, no shareholder meeting consensus or majority opinions are taken into consideration, while the only member shareholder meeting is held once every 6 months at a gap of at least 90 days between two meetings. The sole idea which the One Person Company tries to uphold is the personal commitment to the business.
• Independent Corporate Existence– The added advantage which the One Person Company has is the separate independent identity from that of its director shareholders and director. This very principle came into existence from the landmark case of Salomon v. Salomon and Co. Ltd. In this case, it was held that the Company forms a distinct legal personality from that of its members and hence, a company should be treated as a person in law.

In another landmark case of T.R. Pratt v. E.D. Sassoon & Co. Ltd, the Bombay High Court while delivering the judgment came out with the verdict that ‘the incorporated company is a separate and different entity under the law, although it is possible that the entire share should be controlled by one person, the company should be identified as a distinct personality’.

• Limited Liability– One Person Company tends to limit the liability of Entrepreneurship as the company has its own identity. Limited Liability is considered to be the most prized advantage possessed by the One Person Company. President Eliot of Harvard once considered the limited liability of One Person Company as the most precious characteristic of the company, and it was in turn regarded that the members come and go but the company continue to remain as a separate legal entity.

Deficiencies of One person Company

The very idea behind the inception of the One Person Company was to promote and boost the economic growth of the country, by the way, promoting entrepreneurship, in contrary, only a naturally born Indian, who is also an Indian resident could start a One Person Company. In one way this step tries to encourage small entrepreneurship and on the other hand, it discourages foreign direct investment by the way of disallowing foreign companies. The two most significant disadvantages of one Person Company have been listed below:

• Investment- As the territory of the One Person Company is new and comparatively untested investors may wary from investing in the company and this acts as a major disadvantage.
• Taxation- The One Person Company is taxed both on income as well as the distribution of profits, and this is seen as a major disadvantage which does not act in favour of the One Person Company. The One Person Company is hence, said not to enjoy any tax benefits but, on the contrary, the tax acts as a burden on the part of the company.

Conclusion

This article has included under its ambit the complete analysis of the One Person Company, which has covered numerous aspects of the One Person Company which are of paramount importance in order to be understood by the readers. The procedural requirements for the functioning of the company are fewer in number as there are numerous exemptions provided under the said sections of the act. In the end it can be concluded that, the One Person Company has its own benefits as having been listed under and at the same time there exist various disadvantages as well and with the evolution of time the disadvantages can be curbed and the One Person Company can be made more effective and advantageous so that it can serve its purpose better.

References

Cases

1) Salomon v A Salomon and Co Ltd [1897] AC 22.

2) T.R. Pratt (Bombay) Ltd. vs E.D. Sassoon And Co. Ltd. And Anr. on 18 September 1935, AIR 1936 Bom 62.

Online Sources

1. Dheeraj Verma, One person company, Legal Services India (August 28, 2017) http://www.legalservicesindia.com/article/2407/One-person-company.html.
2. Sabarnee Chaterjee, One person Company and its limited liability, Corporate Law Reporter (March 25, 2014) http://corporatelawreporter.com/2014/03/25/one-person-company-limited-liability/.  
3. Swasti Gupta, Can a Company be the one-person in a One Person Company?, Ipleaders (June 21, 2018) https://blog.ipleaders.in/one-person-company-ten-legal-provisions-must-know/.

4. Vatsala Singh, One Person Company- A Concept For New Age Business Ownership, Singh and Associates (28 November 2013) 

The post One Person Company – A Complete Analysis appeared first on iPleaders.

This article is written by Akash R. Goswami of the faculty of law, Aligarh Muslim University. In this article, he has discussed what exactly the amendments made by the Government Of India in pursuance for the protection of women. 

Introduction

The world is dynamic, changes occur according to the needs of the society and just as the general population who possessed a spot in that society. For example, during the 18th century, there was hardly any law to govern cyber crimes but due to technological advancements, dynamic features the Cyber Law developed rudimentarily. Therefore a sudden increase in the rate of crime regarding cyber threats, ransomware, and other cyber offences made us realize that there should be a law to deal with these advanced crimes. Similarly, Criminal Law Amendment Bill 2018 provides to amend relevant sections of IPC, Cr.P.C. and POCSO Act and also enhanced the minimum sentence for the offence of rape including the age part.

Need for Criminal Amendment Act, 2018

A report by the “Thomson Reuters Foundation” ranked India as the most dangerous country for women due to sexual violence, human trafficking, child labour, child marriage, and female foeticide. According to the National Record Crime Bureau (NRCB) in its annual report of year 2013 states that approx 24,923 rape cases were reported across India in 2012. And in 98% cases, the accused was found to be a relative of the victim.The per capita rate of assault is most minimal, as a rule of assault, goes unreported. But rape cases like Kathua rape case and the Unnao rape case incidents triggered and widespread hatred in public. And feeling of condemnation results in media attention, and public protest demonstrated for the sake of justice. this increases the willingness to report the rape cases, and this led the government of India to bring some changes in the existing penal laws. Hence, there was an indispensable need for this Criminal Amendment Act.

Criminal Law Amendment Act, 2018

The Ministry of law and justice introduced the criminal law amendment bill 2018 in Lok Sabha on July 23, 2018, and the same was passed on 30 July and 6 August by Lok Sabha and Rajya Sabha respectively. This bill aims to provide grievances to the victim, who has been sexually assaulted and ensure the death penalty for those who, convicted for raping a girl below 16 or 12 years. It replaced the ordinance promulgated by the President of India in April and also did relevant amendments in:

1. IPC 1860
2. Cr.PC 1973
3. Evidence act 1872 
4. Protection of Child from Sexual Offences (POCSO) 2012

Salient Features Of Criminal Law Amendment Act, 2018

This Act brings relevant changes for the protection of a girl form the heinous crime of rape in our penal laws. They are as follows:

• Anyone who commits the offence of rape shall be punished for the minimum period 10 years earlier it was for 7 years.
• If any person rapes a girl, who is below 16 years of age, shall be punished for a minimum period of 20 years.
• If a person rapes a girl, who is below the age of 12 years, shall be deemed to punished rigorous imprisonment for 20 years or imprisonment for life or maybe liable for the death penalty.
• In case if the offence of rape, is committed with the girl age below 16 years, the anticipatory bail will not be granted to the accused.
• Convicted persons bound to compensate the victim, and such compensation will be used for the victim’s medical expenses and for rehabilitation. And the compensation will be just and reasonable.
• If the offence of rape, is committed by the Police Officer, irrespective of the place shall be punished for rigorous imprisonment which is not less then 10 years. 
• In the matter of rape, the police are under compulsion to complete the Investigation within the period of 2 months after the FIR lodged.
• The offence of rape, time to disposed the appeal starts after 6 months.
• Act provides to punish accused convicted of gang rape of woman below 16 years of age shall be given rigorous imprisonment for life and liable for fine.
• The Act also provides to punish accused convicted of the gang rape of women, who is below the age of 12 years shall be given rigorous imprisonment for life and with fine or with the death penalty.

Amendments In Indian Penal Code

Criminal amendment act 2018 inserts three new sections in IPC-

• 376AB
• 376DA
• 376DB

And amend three sections of IPC-

• 166A
• 228A
• 376

Inserted Sections

376AB

This section was inserted just after Section 376A and provides that whoever commits rape with a woman, who is under 12 years of age shall be punished with rigorous imprisonment for a term which shall not be less than 20 years, and it may extend to life imprisonment which impliedly intends to introspect what he had been done is thoroughly illegal and off-base, or in legal sense, reminder for that person natural life, and with fine or death penalty. And also liable to pay compensation and such compensation shall be reasonable and just, to meet the medical expenses and for victim rehabilitation.

Additionally, commands that any payment by the denounced under this section will be paid to the person in question (victim).

376DA

After Section 370D, 376DA section inserted and states that when a woman under the age of sixteen years raped by one or more person constituting a group or done some action for the pursuance of common intention, each of that person deemed to commit the offence of rape and shall be punished with imprisonment for life which shall impliedly intends to introspect what he had been done is thoroughly illegal and off-base, or in legal sense, reminder for that person natural life, and with fine or death penalty. And also liable to pay compensation and such compensation shall be reasonable and just, to meet the medical expenses and for victim rehabilitation.

Additionally, commands that any payment by the denounced under this section will be paid to the person in question (victim).

376DB

This section states that where a woman who, is below the age of 12 years is raped by one or more person constituting a group or action for the pursuance of common intention, each person shall be deemed to commit the offence of rape, and punished with life imprisonment which impliedly intends to introspect what he had been done is thoroughly illegal and off-base, or in legal sense, reminder for that person natural life, and with fine or death penalty. And also liable to pay compensation and such compensation shall be reasonable and just, to meet the medical expenses and for victim rehabilitation.

Additionally, commands that any payment by the denounced under this section will be paid to the person in question (victim).

Amended Sections

166A

This section deals with public servant disobeying directions under the law, and has three clauses. 

And clause ( c ), is substituted with section 376AB, 376B, 376C, 376D, 376DA and 376DB.

228A

This section deals with disclosure of the identity of the victim of certain offences, and sub section 1 of this section was substituted with Section 376AB, 376B, 376C, 376D, 376DA, and 376DB.

376

This section deals with the punishment for rape and under this section, the sub-section 1 was substituted as “whosoever commits an offence of rape shall be punished for the term not less than 10 years or which may extend to life imprisonment and with fine”.

And by this amendment in section 376, sub-section 2 clause (a) sub-section 1 has been repealed.

After sub-section 2 of section 376, new sub-section inserted namely “3” which provides that whoever commits the offence of rape with a woman, who is under the age of sixteen years shall be punished with rigorous imprisonment for a term not less then 20 years, and shall extend to imprisonment for life which impliedly intends to introspect what he had been done is thoroughly illegal and off-base, or in legal sense, reminder for that person natural life, and with fine or death penalty. And also liable to pay compensation and such compensation shall be reasonable and just, to meet the medical expenses and for victim rehabilitation.

Additionally, commands that any payment by the denounced under this section will be paid to the person in question (victim). 

The Criminal Amendment Act, 2018 amends two sections of the Indian Evidence Act, 1872

• 53A

• Provision of Section 146

53A

This section deals with the evidence of character or previous sexual experience not relevant in certain cases substituted with Sections 376AB, 376B, 376C, 376D, 376DA, and 376DB.

146

This section deals with questions lawful in cross-examination (what are the questions must be asked by the Police Officer) when a witness is cross-examined, he may in addition to the question hereinbefore referred to, be asked any question which tends-

1. Tend to test the veracity.
2. To discover who he is and what is his position in life. 
3. To sake his credit, by injuring his character, although the answer might tend directly or indirectly to criminate him, might expose him to a penalty or forfeiture.

Provision 3 or this section were substituted with section, 376AB, 376B, 376C, 376D, 376DA and 376DB.

Amendment in Code of Criminal Procedure

By the Criminal Amendment Act, 2018 following sections of Cr.PC has been amended these are:

• Section 173
• Section374
• Section 377
• Section 438
• Section 439

Section 173

In this section there is an amendment in sub-section (1A) which provides that rape of a child may be completed within 3 months, this sub-section was substituted with “an offence under section 376AB, 376B, 376C, 376D, 376DA, and 376DB or section 376E of the Indian penal code shall be completed within 2 months”.

Section 374

In section 374 of Cr.PC, after sub-section (3), the following sub-section inserted i.e, sub-section (4) and read as when an appeal has been filed against a sentence passed under Section 376, 376A, 376AB, 376B, 376C, 376D, 376DA, and 376DB or Section 376E of the Indian penal code the appeal shall be disposed within period of 6 months from the date of filing of such appeal.

Section 377

In Section 377 of the code of criminal procedure, after sub-section (2), new sub-section was inserted i.e. sub-section (3) and read as when an appeal has been filed against a sentence passed under section 376, 376A, 376AB, 376B, 376C, 376D, 376DA, and 376DB or section 376E of the Indian penal code the appeal shall be disposed off within a period of 6 months from the date of filing the appeal.

Section 438

In Section 438 of the Code of Criminal Procedure, after sub-section (3), new sub-section inserted i.e. sub-section (4) and provides that nothing in this section shall apply to any case involving the arrest of a person on accusation of having committed an offence under sub-section (3) of Section 376, 376AB, 376DA, 376DB of the Indian penal code.

Section 439

In Section 439 of CrPC, after sub-section (a), (1) provision, another provision was added and says that “the high court and the session court shall, before granting bail to a person who is accused of an offence triable under sub-section (3) of Sections 376, 376AB, 376DA, 376DB, give notice of the applicant for the bail to the public prosecutor within a period of 15 days from the date of receipt of such notice.

And after sub-section (1) of Cr.PC following sub-section was inserted i.e. (1A) which provides that the presence of the informant or any person authorized by him, shall be obligatory at the time of hearing of the application for bail to the person under sub-section (3) of sections 376, 376A, 376DA, 376DB.

Protection of children from sexual offences (POCSO) Act, 2012

By the Criminal Amendment Act, 2018 there is a change in Section 42 of POCSO Act, 2012. This section deals with Alternative Punishment and Sections 376A, 376C, 376D were substituted with 376A, 376AB, 376B, 376C, 376D, 376DA and 376DB of Indian penal code.

Conclusion

After going through various amendments and newly inserted Sections in IPC, Cr.PC, The Indian Evidence Act and in The POCSO Act. As we read that the criminal amendment act 2018 just intends to shield the women from a horrifying offense i.e., sexual assault. As the wrongdoing rate of committing sexual assault has expanded with legitimately relative merciless of people. In most of the rape cases, matter goes unreported and the lack of legal merit, social reasons are there which creats hinderances for the victim to access justice. But after doing relevant changes in these penal laws Government of India seeks to provide, welfare for all the women and feeling of safety, as it is necessary due to the recent cases that took place like Kathua rape and Unnao rape cases, these cases generating a pathetic situation for women in which women think that they are not safe even in their houses, as in most of the cases the accused found to be her relative or a known person of the victim so there is absloute need for the law regarding women and child safety.

References

1. https://mha.gov.in/sites/default/files/CSdivTheCriminalLawAct_14082018_0.pdf
2. https://www.washingtonpost.com/news/worldviews/wp/2018/06/27/india-ranked-worlds-most-dangerous-place-for-women-reigniting-debate-about-womens-safety/?noredirect=on&utm_term=.45a37141fd60

The post Criminal Law Amendment Act, 2018 appeared first on iPleaders.

This article is written by Shreya S.K Pandey, a student of Law College Dehradun Faculty of Uttaranchal University. In this article, she discusses the impact of Goods and Services Tax (GST) in India, the advantages and disadvantages of the GST and the impact of GST on various sectors.

Introduction

Goods and Services Tax (GST) was introduced in the Indian Constitution through the 101st (Hundred and One) Constitutional Amendment Act, 2016. After the enforcement of Goods and Services Tax (GST), many sectors faced some positive effects as well as negative effects.

The enforcement of the tax was for the long term benefit. There were very few sectors that received an immediate benefit from the implementation of Goods and Services Tax (GST). The long term benefit requires the patience of citizens. Where one sector in the country faces a positive aspect, on the other hand, the other sector faced the negative aspect. It is very important to know how and to whom the Goods and Services Tax (GST) had impacted. In a country where the population is 133.92 crores, [Source: World Bank, United States Census Bureau], implementation of a new tax regime was not less a big hurdle. It was required that the authority first understand the concept then it will be easy for the citizens to under the concept of “ One Nation One Tax”.

 Some of the major sectors that have been affected by the implementation of GST are – 

1. Export-Import sector
2. Automobile sector
3. Real estate
4. Iron and steel
5. Energy sector
6. Entertainment industry
7. Hotel and tourism
8. Education sector
9. Banking sector
10. Textile sector
11. Manufacturing sector
12. Information technology sector

Impact on Export and Import Sector

Before the enforcement of the Goods and Services Tax (GST), Export and Import were governed by the Service Tax, Value Added Tax, Excise Duty and Customs Duty. These were imposed on the Import and Export goods and services. When Goods and Services Tax (GST) was introduced all these taxes were merged into one. But the Basic Customs Duty (BCD) continues to work on the import bills.

Impact of GST on import

When any goods and services are imported then it is the duty of the importer to pay the Integrated Goods and Service Tax (IGST) and Customs Duty.

Integrated Goods and Services Tax (IGST) is a tax that is imposed on the supply of Goods and Services which takes place Inter-State. IGST Act governed these transactions. Integrated Goods and Services Tax (IGST) applies to the supply of goods and services which are imported to India as well as which are exported by India.

Note: The import of goods and services are Inter-State supplies and therefore a person is responsible for paying the Integrated Goods and Services Tax (IGST) and Basic Custom Duty (BCD)

Integrated Goods and Services Tax (IGST) is substituted by all the taxes which were governing the imports of goods and services before the GST. Those taxes were:-

1. Special Additional Duty (SAD)
2. Countervailing Duty (CVD)

IGST, which is applied to the imported goods and services, is based on the rate of tax which is applicable to the imported goods in India. Importer of goods has the power to claim all the Input Tax Credit of IGST which is paid by him on the import of goods and services, but in such case tax credit on the paid custom duty will not be obtainable and the cost will be borne by the importer.

When Integrated Goods and Services Tax (IGST) is applied, then:-

1. The exports will be zero-rated
2. The Central Government and the State Government will share the tax.

Impact of GST on export

The goods and services which are imported in the country are inter-state supplies, therefore, a person who is importing the goods and services is liable to pay the Integrated Goods and Services Tax (IGST). It will be paid on the reverse charge basis by the importer of goods and supplies. There shall be no imposition of Goods and Services Tax (GST) on the goods and services which are exported. However, when there is the export of raw materials and input of those goods which are exempted from the Goods and Services Tax (GST), then the person exporting the raw material and input are liable to pay the tax.

Exporters may claim the Integrated Goods and Services Tax (IGST) and other taxes which are paid by then in the inputs. They may claim IGST when it is paid by the exporter in the input tax credit scheme.

When Goods and Services Tax (GST) was introduced in India it relaxed the Export Tax. Relaxation of tax on the export helped in decreasing the product cost. There is also a relaxation in the availability of input credits on all related services. Ultimately this will help the country to grow in the economic sector as the export industries will flourish due to relaxation in the export tax.

Impact of GST on Business

Goods and Services Tax (GST) has a huge impact on the medium and small enterprises. Business owners of the small and medium-sized are under liability to pay the various taxes. They have to approach the numerous departments to accomplish the work or documentation related to the tax. 

Owners of the small and medium enterprises are under liability to pay the tax up to 32% which was the total tax charged or collected by the Central Government and the State Government. When Goods and Services Tax (GST) was imposed or implemented the small and medium enterprises are now accountable to pay 18 to 22 percent of tax which is much lessened to the previous tax. Also, the owner of small and medium enterprises do not have to visit the distinct departments for the purpose of paying the various taxes. 

Direct impact on the medium and small enterprises

1. Goods and Services Tax (GST) is building a platform for the new business in the country. It gives an opportunity to start a new work or business. Before the implementation of the Goods and Services Tax (GST), there is a requirement of Value Added Tax (VAT) registration for all the business. The Value Added Tax (VAT) registration was different in every state. As the registration was different in all the states, the rules and regulations were also different. The entire process was quite disoriented.

However, after the imposition of Goods and Services Tax (GST), there is a requirement of only one registration and that too with Goods and Service Tax (GST) which is controlled by the Central, same as service tax.

2. It is compulsory on the part of every business to pay the Value Added Tax (VAT) if the annual turn comes out to be more than five lakh in some states and in some other states it is more than 10 lakh. The different Value Added Tax (VAT) creates confusion for the business.

                  After Goods and Services Tax (GST), businesses are not required to pay the Goods and Services Tax (GST) or to register when the annual turnover of the business is 10 lakh. The provision is applicable to all the states. The provision is helpful for all the small or medium businesses, having a turnover between 5 lakh to 10 lakh, to avert applying for the return of Goods and Services Tax (GST).

3. Goods and Services Tax (GST) provides a platform for small and medium-sized businesses to work in India by applying their ability. There is less confusion or complexity after the Goods and Services Tax (GST) provision. Now, there will be no difference between the goods and services and at last, this will help in making the compliance easy.

Impact of GST on Indian Economy

Goods and Services Tax (GST) is extremely useful for the economy of India for a long term basis. The reason for the benefit of the Good and Services Tax (GST) is due to the uniformity of taxes. It merges all the indirect taxes which was prevailing in India during the Value Added Tax (VAT).

Goods and Services Tax (GST) helps the business sector to grow and to become strong by bringing transparency. When the business sector will flourish it will help in creating further employment which will ultimately lead to reducing the burden of the tax.

Goods and Services Tax (GST) have a consistent scheme of the tax for the goods and services across India, i.e.  0%, 5%, 12%, 18%, and 28%. The tax rate of some goods or products is different from the rest such a gold, precious stones and semi-precious stones. Special rates of taxes are levied in such products. Things such as luxury cars, tobacco, carbonated beverages, etc, are subjected to 22% of the additional cess.

Goods and Services Tax (GST) in comparison to the previous indirect laws relating to the taxes provided a broader base for the taxes. The Central Excise Law exempts the small scale units i.e. SSI having a turnover up to Rs. 1.5 crore from levy the duty. Exemption under the service tax law was given when the previous financial year has accumulated turnover up to Rs. 10 lakh. The lower limit for the purpose of levying the Value Added Tax (VAT) varies from one state to another state i.e. between Rs. 5 lakh to Rs. 20 lakh.

But in the Goods and Services Tax (GST) scheme, the lower limit for the purpose of levying the Goods and Services Tax (GST) was set or settled at Rs. 20 lakh. But in some circumstances i.e. for special category States, the lower limit is fixed at Rs. 10 lakh. Goods and Services Tax (GST) had included within it all the small suppliers. It was observed that many suppliers had registered themselves intentionally and freely so that they may avail all the benefits relating to the input tax credit.

Micro, Small and Medium Enterprises (MSME’s) has suffered some sort of complications with the new tax regime i.e. Goods and Services Tax (GST). All the Micro, Small, and Medium Enterprises (MSME’s) are suffering problems to conduct their business as there is a requirement of registration in every state from where the MSMEs are formulating a supply. Goods and Services Tax (GST)  is helping the Micro, Small and Medium Enterprises (MSME’s) in developing the ability for the purpose of maintaining the account book. Maintenance of the account book will ultimately help the enterpriser to get a loan from any bank or financial institution. This will help them to increase their business. They will now borrow the money from the formal sector and will no longer rely on the informal sector for obtaining the loan. The country like India really demands a strong Micro, Small and Medium Enterprises (MSME’s) which helps in creating more employment.

Goods and Services Tax (GST) helps in controlling the tax evasion. Permanent Account Number (PAN) which is issued by the income tax department is linked with the Goods and Services Tax (GST) number i.e. GSTN. This helped in establishing a relationship between indirect taxes and direct taxes. This ultimately aid or support in reducing the evasion of tax to an enormous extent. During the regime prior to the Goods and Services Tax (GST), there were many cases of tax evasion. When the taxpayers disclose their turnover under the indirect tax law and the direct tax law both differed from each other, which gives a path to the evasion of tax.

After the implementation of the Goods and Services Tax (GST), there is an expectation of an increase in the tax Gross Domestic Product (GDP) ratio. The expectation is that the basis points (bps) will increase up to thirty in the financial year of 2018-2019 each and 2019-2020. This was stated by the table of medium-term expenditure framework (MTEF) in the lower house i.e. Lok Sabha. The databases of the indirect tax and the direct tax are linked together, it helps the data analytical tools to remove all the inconsistency and also helps the authorities of revenue to take a  mandatory action.

Summing up the whole, an increase in the ratio of Gross Domestic Product (GDP) will overall helps in lowering the rate of tax in India. Goods and Services Tax (GST) will help the Indian economy on a long term basis. 

Impact of GST on Real Estate

The imposition of Goods and Services Tax (GST) has some positive impact on the property and real estate. Property buyers are in profit due to the Goods and Services Tax (GST). 12% Goods and Services Tax (GST) charges of property value are liable on all under-construction properties. It does not include the stamp duty and the charges on the registration. Previously this provision was applied in the properties which are prepared or ready.

There is an increase in the profit for the builders and the developers due to the input tax credit. This will additionally pass the profit to homebuyers.

According to changed tax scheme, the under-construction properties i.e. flats and buildings will be charged 18% Goods and Services Tax (GST) in which 9% will be State Goods and Services Tax (SGST) and 9% will be Central Goods and Services Tax (CGST). The government has the power to deduct the land value equal to the 1/3rd  of the total amount which is charged by the builder. It will make the efficient rate of tax as 12%.

Note:- In the real estate sector, a 12% tax rate is for building materials there will be no effect on the value of the flat. 

Positive impact on buyers

Goods and Services Tax (GST) have some positive impact on the prices of the property. It makes the tax system easy for all the buyers. Before Goods and Services Tax (GST), buyers were accountable to pay the taxes which depends upon the property’s construction status and the state in which the property is located.

Buyers were also liable to pay the Value Added Tax (VAT), stamp duty, service tax, and registration charges when they buy the under-construction property. But when they buy the property which was ready or completed, they are liable to pay registration charges and stamp duty. The state has the power to levy the stamp duty, Value Added Tax (VAT) and Registration Charges and all the figures of tax differ from state to state. Central has the power to levy the service tax and it was charged upon the construction. This makes the tax scheme very much complicated for all the buyers, but Goods and Services Tax (GST) had made this simpler.

Under Goods and Services Tax (GST) regime, tax is charged upon all the under-construction properties are at 12% of the value of the property. It does not include the registration charges and stamp duty. There was no imposition of indirect tax on the sale of property which is ready-to-move that is why there is no applicability of Goods and Services Tax (GST) on sale of the ready-to-move properties.

Positive impact on Builders

Before the enforcement of the Goods and Services Tax (GST), a developer or builder had to pay Value Added Tax (VAT), Central Excise Duty and Entry taxes which was the state domain, the state was collecting those taxes on the cost of construction material. Developer and the builder were also liable to pay the tax at 15% for services such as approval charges, architect fees, labor, legal character, etc.

After the Goods and Services Tax (GST), there was not much variation in the construction costs. In addition, logistics reduced cost will lead to a lessening of the expenses. To increase the profit, the input tax credit is helpful.

Click Here

Impact on Iron and Steel

Tax Laws relating to the Iron and Steel

Three types of taxes are applied or imposed on the manufacturing of iron and steel. Those taxes are:-

1. 12.5% of Excise Duty
2. 5% of the Average Value Added Tax (VAT)
3. 2% Central Sales Tax (CST)

When we see, there is a total of 19.5% net tax which is imposed upon the iron and steel. If there is an article which is manufactured of iron and steel are charged at the rate of 19.5%.  The rate of the tax charged is similar to the tax rate for manufacturing iron and steel. In Punjab, the Value Added Tax (VAT) is 2.5% for the substances or commodities which are of iron and steel there the pattern of tax charged is not the same in whole India.

Impact after Goods and Services Tax (GST)

Materials like iron and steel are very useful and utilized in everyday life. Goods and Services Tax (GST) has a positive impact on the iron and steel and material made up of these. Kitchen utensils that are useful in day to day life become cheaper than the previous. Utensils like pan, stainless steel cooker and many more are now charged with 12% of Goods and Services Tax (GST). Tt is charged 7.5% less than the current tax laws. There are benefits for all the steel-related companies as there is a 5% low tax rate on all the large inputs used by them under the Goods and Services Tax (GST). These inputs are iron ore, coal, etc.

All the industries relating to the Iron and Steel are getting benefits with the introduction of the Goods and Services Tax (GST). There is an expectation that it will help in furthermore benefits by reducing or lowering the input tax and logistics.

Impact on Entertainment Industry

Before the enforcement of Goods and Services Tax (GST), the entertainment section pays many taxes. They are not limited to one tax. They pay the central tax, state tax and also tax imposed by the local authorities. But, when Goods and Services Tax (GST) was imposed they were liable to pay only one tax.

Before the implication of Goods and Services Tax (GST) 

Before the enforcement of the Goods and Services Tax Act, 2017, entertainment tax was imposed on different entertainment services. Value Added Tax (VAT) and service tax were imposed in various services of the entertainment i.e. nutriment provided in the Cinemas. The Value Added Tax (VAT) charged was 14.5% and the service tax charged was 15%. The entertainment sector was enjoying a subsidy of 60% on the service tax and therefore they were required to pay the service tax at the rate of 6% i.e. 40% of the 15%. The entertainment sector was paying the 20.5% tax along with the entertainment tax.

After the implication of Goods and Services Tax (GST)

After the enforcement of the Goods and Services Tax (GST), all the scattered taxes upon the entertainment sector was subsumed in one i.e GST.

Goods and Services Tax (GST) were ranging between 18% to 28%. The tax rate was totally dependent upon the kinds of the Entertainment Services.

Things within the 18% Goods and Services Tax (GST) 

1. Circus
2. Television and DTH services
3. Theatre
4. Movie Tickets (Tickets costing up to Rs.100 have GST 12% and tickets costing more than Rs. 100 have GST 18%)

Things within the 28% Goods and Services Tax (GST) 

1. Racing 
2. Casinos
3. Amusement parks
4. Movie events and festivals
5. Sporting event

Impact of Goods and Services Tax (GST) on consumers

Goods and Services Tax (GST) has given an overall profit to the entertainment sector. The tax on the movie ticket was 30% and there was 20.5% of the Value Added Tax (VAT) along with the service tax on the foods which a person buys from the theatre. But, after Goods and Services Tax (GST), a tax imposed upon the ticket was 28% and tax on the foods in the cinemas are charged at 18%.

But here we see different results relating to the impact of Goods and Services Tax (GST) on the entertainment sector. Reason for various consequences are:-

• Low tax on entertainment service in some states.
• No tax on entertainment services in some state.

When Goods and Services Tax (GST) was imposed in these states, they suffer a rise in the tax on the entertainment sector. However, it was low for those states where the tax on entertainment services was high. But, if we compare, Goods and Services Tax (GST) was quite low in comparison to the tax system, i.e. Value Added System (VAT) and Service Tax, which was prevailing before GST.

State also has the power to include or charge Local Body Tax (LBT) in addition to the tax which was discussed above under Goods and Services Tax (GST). Local bodies also have the power to impose a further charge, under Goods and Services Tax (GST), on the entertainment services in their respective area. 

Impact of Goods and Services Tax (GST) on Owner of Entertainment Service

According to the Goods and Services Tax (GST) regime, the owner of the entertainment service is also liable to pay the tax for the services in entertainment. They will also pay the tax on the sale of the tickets, food, etc. 

Impact of GST on Hotel and Tourism

Income generated from the hotel and tourism plays a vital role in the Indian economy. They help in increasing the Gross Domestic Product (GDP) of India. This is why every State Government keeps on promoting the tourism of there state by various advertisements. Rate of Goods and Services Tax (GST) differs for the hotels because of the tariffs.

1. If the tariffs range Rs 1000 and less then there will be no Goods and Services Tax (GST).
2. If the tariff range between Rs. 1000 to Rs. 2500 then Goods and Services Tax (GST) will be 12%.
3. If the tariff range between Rs. 2500 to Rs. 7500 then Goods and Services Tax (GST) will be 18%.
4. If the tariff is more than Rs. 7500 then Goods and Services Tax (GST) will be 28%.

There is 5% of Goods and Services Tax (GST) on the person who operates the tour. But there is an expectation that as the Goods and Services Tax (GST) had lower the tax rate on the operators of the tour the price of the tour packages will also show the down graph. 

Impact of GST on Banking Sector

With the imposition of Goods and Services Tax (GST), the banking sector became more expensive. Previously, the tax on all the services relating to the banking was 15% but after the enforcement of Goods and Services Tax (GST), the tax rate on all the banking service was increased to 18%. These are some of the impacts of Goods and Services Tax (GST) on banking sector:-

• Each branch of Banks must have separate registration

After the implementation of the Goods and Services Tax (GST), every bank is required to obtain a separate registration for all the branches within them. Before Goods and Services Tax (GST), all the employees working in the banks are getting out of their relief mode because there was a concept of “single centralized registration” for all the branches of banks. It was a complex task to be done in a country like India because there were excessive numbers of banks having a more excessive number of branches prevailing in India.

• The transaction between banks is not free

After the implication of Goods and Services Tax (GST),  the money transaction, whether it was internally or externally, between the two different banks where done by imposing the tax. Before the GST, it was free. 

• Dependency upon CGST and SGST

Under Goods and Services Tax (GST), there are two different kinds of taxes prevailing in India. First, Central Goods and Services Tax (CGST) and second is State Goods and Services Tax (SGST). CGST is the domain of Government and SGST is the domain of State Government. With the advent of these two types of Goods and Services Tax (GST) the whole code or protocol of the banks and relating sector are altered in a stipulation of the service which they provide to all consumers.

• Point of supply identification

Every consumer or customer having their account in any bank has been offered a “point of supply identification”. This helps the customers in the transfer of money in any part of India. If a person has an account in a remote area, he will easily transfer the money with the limitation of amount subjected to the rules stated by the Reserve Bank of India (RBI). 

• Input Tax Credit in GST

Before the imposition of Goods and Services Tax (GST), the input tax credit was not granted in accordance with the Central Value Added Tax (CENVAT) protocols or code. However, after the Goods and Services Tax (GST), the input credit tax is acknowledged to all the banks which will ultimately reduce the evasion of tax when there are external supply funds.

• Growth of transaction

After Goods and Services Tax (GST), the banking sector has approached in the whole of India and even in the acquaintance countries for the purpose of ensuring the continuous and steady business. The sudden growing and spreading of business will lead to increasing the claim of funds. And as the demand for funds will increase this will ultimately benefit the banks because of expansion in the number of transactions. 

• Distinctiveness in services

Every bank gives a variety of services to all of its customers or consumers such as credit card, debit card, internet banking, etc. When Goods and Services Tax (GST) came into force, there was an amendment in the rules and regulations relating to the banks and this emerged as the up-gradation of all the system including the Automated Teller Machine (ATM) and all the systems related to the transaction as demanded by the department of IT.

Impact of GST on Supply Chain

Supply Chain

It is a type of web or chain which lies between a corporation or company and its supplier for production and distribution of a particular product to an ultimate buyer or purchaser. It represents the process that was taken from receiving the product from its original character to the consumer.

The supply of chain is necessary for the purpose of proper running of trade and business which is producing and circulating the product and material. There is some impact on this sector after the implementation of Goods and Services Tax (GST) which are:-

1. Enhancement and advancement of the stock points.
2. Reduction in the channel inventories.

Channel Inventories means average product left in the retail store’s “shelves” which is not sold or taken by the  end consumer,

1. There will be a straight or direct benefit for the procurement out of state.
2. Benefit in the logistic cost.

Now a day, the logistics industry is considered as the backbone of the Indian Economy. When Goods and Services Tax (GST) was imposed as a new tax regime for the Indian economy system the logistics sector was improvised as the activities like corruption was reduced. Now, there is less transportation time as Goods and Services Tax (GST) had made the time catching clearance procedure much easier. The revenue related to the business was increased and the total logistic cost is also reduced by the Goods and Services Tax (GST).

Impact of GST on Textile Sector

Goods and Services Tax (GST) has shown its positive impact upon the textile and readymade garments. They are benefited from this new scheme of tax. Some of the benefits which Goods and Services Tax (GST) provided to the textile sector are:-

1. The input credit system or chain is now broken
2. The price for the manufacturing of goods is now lower in comparison to the previous tax regime.
3. Input credit is now granted in the capital goods

After the implementation of Goods and Services Tax (GST), all readymade garments which range up to Rs. 1000 are exempted from the terms and clause of the Goods and Services Tax (GST) and where the garments are branded ranging above Rs. 1000 then 12% of tax will be levied upon them.

Advantage of GST

Goods and Services Tax (GST) substituted the regime of Value Added Tax (VAT). It is a levy upon the manufacture, consumption, and sale of goods and services in India. It substituted or merged all the indirect taxes which were imposed by the Central Government and State Government on goods and services. Goods and Services Tax (GST) focuses on a long term benefit. Many sectors benefited due to this new regime. Some of the advantages of Goods and Services Tax (GST) are:-

1. Goods and Services Tax (GST) merged all the indirect taxes into one. This made the tax system easier and simpler for all service and business.
2. Companies that are providing the services and having the turnover less than the Rs. 20 lakh are exempted under Goods and Services Tax (GST) for paying the tax. But in the case of North East States, the lower limit for the purpose of exempting the Goods and Services Tax (GST) is Rs. 10 lakh. This small scale business may ultimately escape the long process of tax.
3. Companies who have the turnover up to 75 lakh under Goods and Services Tax (GST) scheme may take a benefit of the composition scheme and through this, they have to pay only 1% Goods and Services Tax (GST) on their turnover.
4. Goods and Services Tax (GST) reduces the sale which is done without a receipt and also lowers the rate of corruption.
5. Tax on goods such as cars, smartphones, etc is lessened and now tax is up to 2% or 7.5%.
6. This scheme had helped in minimizing the evasion of tax.
7. The logistic cost has been reduced by the Goods and Services Tax (GST). Border taxes are eliminated and inconsistency relating check post was determined which ultimately reduced the logistic cost.  
8. Goods and Services Tax (Gst) had created a liability and regulation towards the sector which is unorganized for example textile industries. 

Disadvantage of GST

Goods and Services Tax (GST) substituted the regime of Value Added Tax (VAT). It is a levy upon the manufacture, consumption, and sale of goods and services in India. It substituted or merged all the indirect taxes which were imposed by the Central Government and State Government on goods and services. Goods and Services Tax (GST) focuses on a long term benefit. Working highly for the future it shows some negative aspects too. Some of the disadvantages of Goods and Services Tax (GST) are:-

1. Goods and Services Tax (GST) had made the transactional fees between the financial sector more costly or expensive. Transactional fees have been increased from 15% to 18%.
2. Goods and Services Tax (GST) had made the premiums of the insurance more costly and pricey.
3. It has shown some negative impact on the real estate market. Due to Goods and Services Tax (GST). There is an increase in real estate prices from 8% to 12%. But it is expected that it will not last for the long term. 
4. Goods and Services Tax (GST) does not include petrol due to which the price of petrol always goes in contrary to the principles of the unification of commodities.
5. Goods and Services Tax (GST) had advanced towards the more complex system for the owners of the businesses. 
6. Before Goods and Services Tax (GST), few retail products have tax up to 4%. But Goods and Services Tax (GST) had made the clothes and garment further expensive or pricey.
7. Goods and Services Tax also affected the sector of aviation. Before Goods and Services Tax (GST), the service tax on the ticket of the airways ranges between 6% to 9%. But now they are exceeded and range up to 15% which is nearly double the tax rate which was imposed by the Government earlier.
8. With the emergence of Central Goods and Services Tax (CGST) and State Goods and Services Tax (SGST) which substituted the Service Tax or Central Excise, Value Added Tax (VAT) and Central Sales Tax (CST) there was no change in the system of tax. The tax system still consists of many layers.

Conclusion

The aim of the government is to bring India in an umbrella of one tax promoting the “One Nation One Tax” system. Implementation of Goods and Services Tax (GST) substituted the regime of Value Added Tax (VAT) in India. It merged all the indirect taxes which was prevailing in the country during the Value Added Tax (VAT) regime. With the imposition of Goods and Service Tax (GST) was a big task in a country like India where new changes are not easily accepted. It was a complex system to understand at first but later it is coming out as a long term benefit for the country. There is the various sectoral impact of Goods and Services Tax (GST). Some sectors show a positive impact while others show a negative impact. Due to a long term benefit scheme, there is a less immediate positive impact on Indian society and economy. However, it is expected that there is an expectation of the growth of the Indian Gross Domestic Product (GDP). the only thing is required to have patience and continuous following of rules and regulations for uplifting the country’s economy.

The post Impact Of Goods and Services Tax on Various Sectors of Indian Economy appeared first on iPleaders.

This article is written by Amanat Raza, a student of faculty of law, Aligarh Muslim University. In this article, he discusses the concept of freedom of speech and expression, its elements and grounds for restriction. 

Origin of freedom of speech and expression

The idea of freedom of speech had originated a long time ago. It was first introduced by the Greeks. They used the term “Parrhesia” which means free speech or to speak frankly. This term first appeared in the fifth-century B.C. Countries such as England and France have taken a lot of time to adopt this freedom as a right. The English Bill of Rights, 1689 adopted freedom of speech as a constitutional right and it is still in effect. Similarly, at the time of the French revolution in 1789, the French had adopted the Declaration of the Rights of Man and of Citizens.

The UN General Assembly adopted the Universal Declaration of Human Rights on 10 December 1948 under Article 19 which recognised the freedom of speech and expression as one of the human rights.

Freedom of speech and expression in India

John Milton says that “give me the liberty to know, to argue freely, and to utter according to conscience, above all liberties”.

The above sentence by John Milton clearly displays the essence of freedom of speech. He argued that without human freedom there would be no progress in science, law or in any other field. According to him, human freedom means free discussion of opinion and liberty of thought and expression.

Justice Louis Brandies had made a classic statement on the freedom of speech in the context of the U.S Constitution in the case of  Whitney v. California [1]

“Those who won our independence believed that courage is the secret of liberty and liberty is the secret of happiness. These people believed that freedom to think, freedom to speak and freedom to assemble wilfully for discussion is futile and of no use. But the public discussion is a political duty and it should be the fundamental principle of the government of America. 

The importance of this right is that it helps us in attaining self-fulfilment and in discovering the truth.”

Click Here

Meaning of freedom of speech and expression

The right to express one’s own ideas, thoughts and opinions freely through writing, printing, picture, gestures, spoken words or any other mode is the essence of freedom of speech and expression. It includes the expression of one’s ideas through visible representations such as gestures, signs and other means of the communicable medium. It also includes the right to propagate one’s views through print media or through any other communication channel.

This implies that freedom of the press is also included in this category. Free propagation of ideas is the necessary objective and this may be done through the press or any other platform. These two freedoms i.e., freedom of speech and freedom of expression have their own respective qualifications.

According to Article 19 of the International Covenant on Civil and Political Rights (ICCPR), the freedom to seek, receive, and convey information and all kinds of ideas irrespective of boundaries, either orally or in the form of writing, print, art or through any other media of their choice are included in the right to freedom of speech and expression.

Article 19 (1)(a) of the Indian constitution

In India, the freedom of speech and expression is granted by Article19(1)(a) of the Indian Constitution, which is available only to the citizens of India and not to foreign nationals. Freedom of speech under Article 19(1)(a) includes the right to express one’s views through any medium, which can be by way of writing, speaking, gesture or in any other form. It also includes the rights of communication and the right to propagate or publish one’s opinion.

The right that is mentioned above, guaranteed by our constitution, is regarded as one of the most basic elements of a healthy democracy because it allows citizens to participate in the social and political process of a country very actively. 

Importance of freedom of speech and expression

It was well said by Cicero, a Roman politician as well as a lawyer that “The people’s good is the highest law”. The manner in which this can be achieved can be inferred from our constitutional provisions, which demonstrate that if a person raises his/her voice against any evil then everybody will listen to the voice and stand against that evil to scrap it out from its root.

Let us have an example of this: compare the past when women were not allowed to vote with the present day. Now women are allowed to vote. How does this happen? It happens because of the right of free speech and expression. The right to free speech and expression have that power through which it can break any type of giant brick that comes in its way.

Other rights that allow or help Indian society develop and progress are supported by freedom of speech and expression which is also a fundamental human right. Free speech and expression have always been important throughout history as it facilitates many changes, one of which is the French revolution.

Free speech and expression not only includes the right to express what one thinks but it also includes listening to others. When a person expresses his/her opinion, it only carries the intrinsic value of that opinion and being silent on that opinion is an injustice to the basic human rights.

Union of India v Naveen Jindal and Anr.,[2]

Facts: The respondent Naveen Jindal was not allowed to hoist the national flag at the office premise of his factory by government officials on the ground that it was not permissible under the Flag Code of India.

Judgment: In this case, the high court held that the restrictions that the Flag Code imposed on citizens on hoisting the National Flag were not permissible under clause (2) of Article 19 of the Indian Constitution. The court has also stated that displaying a flag is an expression of pride as well as an expression of genuine enthusiasm and it can only be restricted in accordance with what has been prescribed in the Constitution, otherwise, the restriction would discourage the citizens or Indian nationals from identifying with the flag of the country.

Virendra v. The State of Punjab and Anr.[3]

Facts: Serious communal tension had arisen in the state of Punjab between the Hindus and the Akali Sikhs because of the question of partition of the state on a linguistic and communal basis. There were two petitioners and both were from different newspapers. Their newspapers’ policy was to support the ‘Save Hindi agitation’. A notification was passed by the home ministry office under the impugned Act prohibiting the publication and printing of any material relating to the ‘Save Hindi agitation’. Both the petitioners filed a complaint alleging that the Punjab Special Powers (Press) Act, 1956 passed by the state legislature was unconstitutional.

Judgment: The court held that Section 2 of the impugned Act did not merely impose restrictions but imposed a total prohibition against the exercise of the right of freedom of speech and expression, making the same a violation of the right guaranteed by the Constitutional provision. 

Sakal Papers v. Union of India[4]

Facts: The petitioner was the owner of a private limited company, ‘Sakal’, which published daily and weekly newspapers in Marathi. This newspaper used to play a leading part in the dissemination of news and in moulding public opinion. They claimed that their net circulation of copies in Maharashtra and Karnataka on weekdays was 52,000 and on Sunday it was 56,000. However, the Central Government passed the Newspaper (Price and Page) Act, 1956, later, the Daily Newspapers (Price and Page) Order, 1960. Because of that order, the government fixed the maximum number of pages that could be published by the newspapers. So the petitioner filed a case challenging the constitutionality of that Act. 

Judgment: The court held that Section 3(1) of the Act was unconstitutional and also an order made under the same would be unconstitutional.

Elements for the right to freedom of speech and expression

The main elements for the right to freedom of speech and expression are as follows:

1. This right is available only to a citizen of India and not to the person of other nationalities i.e., foreign nationals.
2. The freedom of speech under Article 19(1)(a) of the Indian constitution includes the right to express oneself through any medium, such as in words of writing, printing, gesture, etc.
3. This right is not absolute, which means that the government has the right to make laws and to impose reasonable restrictions in the interest of sovereignty and integrity of India, friendly relations with foreign states, the security of the state, public order, decency, morality, defamation and contempt of court and incitement to an offence.
4. Such a right ought to be implemented as much by the action of the State as by its inaction. Thus, failure on the part of the State to guarantee the freedom of right and expression to all its citizens would also constitute a violation of Article 19(1)(a) of the Indian constitution.

Freedom of press

“Our liberty depends on the freedom of the press, and that cannot be limited without being lost” is stated by Thomas Jefferson to define the importance of freedom of the press.

To preserve the democratic way of life it is necessary that people should have the freedom to express their feelings and to make their views known to people at large. Freedom of speech includes propagation of one’s views through print media or any other communication channels like radio and television, subject to reasonable restrictions imposed under Article 19(2) of the Indian constitution.

Although freedom of the press is not mentioned in Article 19 of the Indian Constitution, yet it has been a part of freedom of speech and expression as considered by judges of the Supreme Court through decided cases.

In the leading case of Romesh Thapar v. The State of Madras,[5]  it has been decided by the supreme court that freedom of the press is an intrinsic part of freedom of speech and expression.

Why freedom of the press is important in the Indian context?

An American lawyer and free press advocate  Trevor Timm have stated that “An independent press is one of the important pillars of democracy”. Freedom of the press has always been a barricade against the secret government, against tyranny and against authoritarianism. The press has a very important role in showing the real face of political parties and also any type of incident that has been disguised and cannot be seen by the common people.

It is the press who revealed the income of a kachori wala (in U.P., Aligarh) recently and also showed the face of some dhongi type babas such as Ram Raheem and many others. It is the media who have the power to provoke people against a political party by showing or revealing their truth. It is used to measure the checks and balances in a democracy.

In the case of Indian Express Newspaper v. Union of India,[6] it was held that the press plays an important role in the democracy machinery. The courts have a duty to uphold the freedom of the press and invalidate all laws and administrative actions that would take that freedom.

An important aspect to be noted is that the freedom of the press has been specifically mentioned in the United States Constitution,[7] while it is a mere inference made by courts in the Indian context, which explains the possible variation in the adjudication of disputes relating to this right in both jurisdictions. 

What are the elements of freedom of the press?

There are three elements of freedom of the press and these are as follows:

1. Freedom of access to all types of source of information
2. Publication freedom, and 
3. Circulation freedom

What is the reason behind the degradation of freedom of the press

In the initial phase of freedom of the press, the views of Jawaharlal Nehru regarding press was that he wanted the press free from all evils and also free from all forms of danger involved in the wrongful use of that freedom. But Indira Gandhi had opposite or conflicting views in respect of Jawaharlal Nehru. She didn’t have much faith in the press and her misgivings were first expressed when she was addressing the International Press Institute Assembly in New Delhi on November 15, 1996, when she blamed the press for giving wide publicity to the student unrest in the country.

The press has slowly been losing its importance in the country. Many politicians take advantage of the press to win an election by giving rise to conflict amongst the people. Many a time, freedom of the press has been suppressed by the legislature. There is a case in respect of that condition,  Sakal Paper v.Union of India.,[8] in which, the Daily Newspapers (Price and Page) Order, 1960, fixed the number of pages and the size of the pages which a newspaper could publish. It was held that it violated the freedom of the press and was not a reasonable restriction under Article 19(2).

Freedom of Commercial Speech

The current judicial position of commercial speech in India is that it can be seen as a part of freedom of speech and expression with reasonable restrictions given or guaranteed under Article 19(2) of the Indian Constitution.

Are we having the freedom to advertise?

The freedom of speech and expression under Article 19(1)(a) of the Constitution of India has been given to every citizen. Various judicial pronouncements have increased the ambit of freedom of speech and expression. Now it includes:

1.  Right to acquire and disseminate information.
2. The right to communicate through any media, in the form of an advertisement, movie, speech, etc.
3. Right to free debate and open discussion.
4. Freedom of press.
5. Freedom to be informed.
6. Right to remain silent.

Thus, it can be seen that we have the right to advertise. In the case of Tata Press Limited v. Mahanagar Telephone Nagar Limited,[9] the Supreme Court held that commercial speech or commercial advertisement was also a part of freedom of speech, which could be restricted only within the limits of Article 19(2) of the Indian Constitution.

Right to Broadcast

The concept of freedom of speech and expression has evolved to include in its ambit all available means of expression and communication because of the advancements in technology. This includes broadcast media, electronic media and many other types of media.

In the case of Odyssey Communications (P) Ltd. v. Lokvidayan Sanghatana,[10] the supreme court held that the right of the citizens to display films on state channels such as Doordarshan came under the purview of fundamental rights guaranteed under Article 19 of the Indian Constitution.

Right to Information

The right to know or to get information is one of the aspects of freedom of speech and expression. Freedom to receive information is also included in the freedom of speech and expression through various supreme court judgments. Right to Information Act, 2005, which especially talks about the right of the people to ask for information from the government officials.

Rights of voters to know about their candidates

In the case of Union of India v. Association for Democratic Reforms,[11] it has been held that the amended Electoral Reform Law passed by the Parliament was unconstitutional as it violated the right of the citizens to know under Article 19(1)(a) of the Indian constitution.

Right to Criticize

In a monarchy, we know that the king is supreme and people are his subjects. This system of relationship gets reversed in a democratic form of government. The people are supreme and the state authority is a servant of the people. In Kedar Nath Singh v. The State of Bihar,[12] the supreme court held that mere criticism of the government is not sedition unless this criticism leads to incitement of violence or breach of public order. Similarly, there is a case of Manipur, where a journalist named Kishorechand Wangkhem was charged for criticizing the chief minister and charged with the offence of sedition under the National Security Act. However,  he was released as the court found that the people of India had the right to criticize under Article 19(1)(a) of the Indian Constitution.

In another case of S. Rangarajan v. P. Jagjivan Ram,[13] it was held that everyone has got the right through the Indian constitution to form his/her opinion on any issue of general concern. 

Right to Expression Beyond Boundaries 

The advancement in technology or the revolution in communication and electronic media has narrowed the gap of transnational barriers or we can say that it has diminished this barrier. It has made the transmission of information possible, even to other parts of the world within a fraction of second. In Maneka Gandhi v. Union of India,[14] the Supreme Court analysed whether Article 19(1)(a) of the Indian Constitution was confined to the Indian territory and finally held that the freedom of speech and expression was not confined to the national boundaries.

Right not to Speak

This right has also been included in freedom of speech and expression. This right came to the notice of people after the judgment in the leading case of Bijoe Emmanuel v. The State of Kerala.[15] This case is also known as the National Anthem case. In this case, three students were expelled by the school authority on refusal to sing the National Anthem.

However, these children stood from their seats in respect, when the national anthem was playing. The validity of the expulsion of children was challenged before the Kerala High Court. The court held that the expulsion of students on the ground that it was their fundamental duty to sing the national anthem was upheld. 

However, on a further appeal by the students before the Supreme Court, it held that the students had not committed any offence under the Prevention of Insult to National Honor Act, 1971. Also, there was no law through which their fundamental rights under Article 19(1)(a) of the Indian Constitution could be curtailed. And also it was held that expulsion of children from school violated the right of freedom not to speak under Article 19(1)(a).

Some of the important cases relating to the freedom of speech and expression are as follows:

• People’s Union for Civil Liberties v. Union of India[16]

This case challenged the validity of Section 5(2) of the Indian Telegraph Act, 1885, which stated that if there occurred any public emergency, or in the interest of public safety, the Central Government or the State Government or any other officials were authorized to take temporary possession of any telegraph, on behalf of the government. Two conditions were observed while dealing with this case:

• The occurrence of public emergency 
• In the interest of public safety

For the application of the provisions of Section 5(2), these two conditions were the sine qua non. If any of these two conditions were not present, the government had no right to exercise its powers under the said Section.

• Hamdard Dawakhana v. Union of India[17]

This case challenged the validity of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1956, on the ground of restriction that it took away or abridged this freedom. The Supreme Court held that an advertisement is a form of speech only if every advertisement was held to be dealing with commerce and trade and not for propagating any idea.

• A. Abbas v. Union of India[18]

It is the first case in which the issue of the prior censorship of films came into consideration by the supreme court of India. The petitioner’s film was not given ‘U’ certificate so he challenged the validity of censorship under the criteria as it violated his fundamental rights of freedom of speech and expression. The court, however, held that the motion picture stirs emotions more deeply than any other form of art. Hence pre-censorship was valid and was justified under Article 19(2).

Grounds of restriction

It is necessary to preserve freedom of speech and expression in a democratic country. And it is also necessary to restrict this freedom to maintain social order otherwise some people might misuse this freedom. There are some restrictions imposed through Clause (2) of Article 19 on freedom of speech and expression on certain grounds.

Article 19(2) states that “nothing in sub-clause (a) of clause ( 1 ) shall affect the operation of the existing law, neither can it prevent the State from making any law, in so far as such type of law imposes reasonable restrictions on the exercise of the right bestowed by the said sub-clause in the interests of the sovereignty and integrity of India, public order, friendly relations with foreign states, the security of the State, decency or morality or in relation to contempt of court, defamation or incitement to an offence”.[19]

The ground for restriction is as follows: 

Security of the state  

Article 19(2) imposes reasonable restrictions on the freedom of speech and expression in the interest of the state. The term ‘security of the state’ should be distinguished from ‘public order’ as security of the state includes an aggravated form of public order. For e.g., waging war against the state, rebellion, insurrection, etc. The term ‘security of the state’ in Article 19(2) does not only mean danger to the security of the entire country but it also implies danger to the security of a part of states or threat to a part of states. 

Friendly relations with a foreign state 

This ground of restriction was added through the Constitutional First Amendment, 1951. The main objective behind adding this provision was to forbid unrestrained vitriolic propaganda against a foreign-friendly state, which could jeopardize the maintenance of good relations between India and that state. If the freedom of speech and expression disturbs or hampers the friendly relations of India with foreign states, the government has the right to impose a reasonable restriction. 

Public order 

This ground of restriction was also added through the Constitutional First Amendment,1951. A situation had arisen in the case of Romesh Thapar by the Supreme Court and to meet that situation, this ground had been added in the constitution. The word ‘public order’ depicts the sense of public safety, public peace, and peace of the community. In Om Prakash v. Emperor,[20] it has been said by the judge that anything that disturbs public peace can be said to disturb public order automatically. There is also a test that determines whether an act affects law and order or public order. 

Decency and Morality 

The word to express or say something should be a decent one that it should win the heart of the opposite person and it should not affect the morals of the society. So our Constitution has considered this view and added this ground in our Constitution. On the ground of decency and morality, Sections 292 to 294 of the Indian Penal Code, 1860 provides an example of a restriction on the freedom of speech and expression. These are the terms of variable content having no fixed meaning or we can also say that these words are of wide meaning. It varies from society to society and time to time depending upon the morals prevailing in contemporary society. The word morality and decency is not confined to sexual morality only; it has a broader scope.

Contempt of court 

In a democratic country, we know that the judiciary plays an important role in governing a country in a peaceful manner so in such types of situation it is important to respect the institution and its order. What hampers the administrative law? How does anything interfere with justice? We know that there is a limitation in a judicial proceeding and anything that curtails its freedom leads to hampering of the administrative law and also anything can interfere with the decision of justice. 

Contempt of court can be defined in two categories i.e., civil contempt and criminal contempt. Contempt of court has been defined in section 2(a) of the contempt of court act, 1971. Initially ‘truth’ was not a defence under contempt of court but in 2006 an amendment was made to add ‘truth’ as a defence. In the Indirect Tax Practitioner Assn. v. R.K. Jain [21] case, the court has held that truth which is based on the facts should be allowed as a valid defence. 

Elements or essential needed to established a contempt: 

1. Making of a valid court order.
2. The respondent should have knowledge of that order.
3. The respondent should have the ability to render compliance.
4. Intentionally or willfully disobey the order.

Defamation 

Article 19(2) prevents any person from making any statement that defames the reputation of another person. One who gets the freedom of any type should not misuse that freedom to hurt or affect the reputation or status of another person. Generally, a statement that injures the reputation of a man results in defamation. The right to free speech is not qualified. So it does not mean to hurt any person’s reputation which is protected under Article 21 of the Indian Constitution.  

Incitement to an offence  

This ground was also added by the Constitutional First Amendment act, 1951. It is obvious that freedom of speech and expression does not include the right to incite people to commit an offence. The word ‘offence’ has been described under section 40 of the Indian Penal Code, 1860.

Any type of offence takes place in two ways: 

1. By the commission of an act
2. By the omission of an act 

Sovereignty and Integrity of India  

To maintain the sovereignty and integrity of a state is the main duty of a government. This ground has been added by the Constitution (Sixteenth Amendment) Act, 1963. 

From the above analysis, it can be stated that grounds contained in Article 19(2) show that they are all concerned with national interest or in the interest of the society. 

Conclusion 

Civil society provides one of the most basic guarantees to citizens i.e., freedom of expression in the context of speech. After concluding we can say that the right to freedom of speech and expression is an important fundamental right, whose scope has been widened to include freedom of the press, right to information which also includes commercial information, right to not speak and right to criticize. 

In the modern world, the right to freedom of speech does not include only freedom to express one’s view through words but it has also included several means of communication to express one’s views. The right that we talked about is subject to reasonable restriction under Article 19(2) of the Indian Constitution. 

To know more about the topic please Click Here. 

References 

• Whitney v. California, 274 U.S. 357 (1927)
• Union Of India vs Naveen Jindal & Anr on 23 January 2004, 2920 of 1996
• Virendra v. The State of Punjab, 1957 AIR 896
• Sakal Papers v. Union of India, 1962 AIR 305
• Romesh Thapar v. State of Madras, 1950 AIR 124
•  Indian Express Newspaper v. Union of India, 1986 AIR 515
• https://www.law.cornell.edu/constitution/first_amendment
• Sakal Papers v. Union of India, 1962 AIR 305
• Tata Press Limited v. Mahanagar Telephone Nagar Limited, 1995 SCC (5) 139
• Odyssey Communications (P) Ltd .v. Lokvidayan Sanghatana, 1988 AIR 1642
• Union of India v. Association for Democratic Reforms, AIR 2001 Delhi 126
• Kedar Nath Singh v. State of Bihar, 1962 AIR 955
• S. Rangarajan v. P. Jagjivan Ram, 1989 SCR (2) 204
• Maneka Gandhi v. Union of India, 1978 AIR 597
• Bijoe Emmanuel v. State of Kerala, 1987 AIR 748
• People’s Union for Civil Liberties v. Union of India, 490 of 2002
• Hamdard Dawakhana v. Union of India,1960 AIR 554
• A. Abbas v. Union of India, 1971 AIR 481
• Article 19(2), Constitution of India, 1950.
• AIR 1948 Nag, 199
• Indirect Tax Practitioner Assn. v. R.K. Jain,  NO.15 OF 1997
• The constitution of India, P.M. Bakshi, 8th Edn. ( New Delhi: Universal Law Publishing Co. Pvt. Ltd., 2007) 
• Indian Penal Code, Ratanlal and Dhirajlal, Thirty-third Edition, 2006

The post Freedom of Speech and Expression appeared first on iPleaders.

This article is written by Akash R. Goswami of the faculty of law, Aligarh Muslim University. In this article, he has discussed the aspect of education as a right of every child, the RTE Act, and loopholes and challenges for the implementation of this act. 

Introduction

The root of education is bitter, but the fruit is sweet. I begin my introduction with this sweet quote, but this is very unfortunate that only half of India’s children  between the age of 6-14 go to school. 3 million children between the age of 6-14 do not attend school. And 70 million children across the world are restricted from going to school everyday. In this article, we will know about the basic need of education in regard to human rights, challenges in India regarding education, the rights associated with education, acts, amendment and allocation of funds and many more aspects in regards to the constitution of India.  

International Legal Basis

On the foundation of international recognition “Right to education” enriched in international law in Article 26 of the Universal Declaration of Human Rights, and considered basic need of every human being. In many international events such as  Article 13 and 14, social and cultural rights that everyone should have primary education right. In 1960 UNESCO, right to education again strongly stated in the convention against discrimination in education, in Europe convention which is held on 20 March 1952 states that right to education is a human right and everyone shall have the access to primary education hence to established and entitlement to education under Article 2.

United nations universal declaration on human rights adopted in 1941 states that:

“Everyone human being has the right to education. Education must be free, at least in the primary and fundamental stages. Moreover, primary education shall be compulsory. Advance and professional education shall be made generally available and higher education shall be accessible to all on the basis of merit and equality.”

Many other international human rights treaties affirmed the right to education protected and propagate such as the following:

• United Nations pact on the rights of the Children in 1989 under article 28 and 29.
• Eradication of all type of discrimination against women 1981 under article 10.
• Convention against discrimination on the basis of employment and corruption in 1953 under article 3.

These international treaties have been working for access to the educational provision to all and also try to an annulment of discrimination at all stages of the education system and wanted to give good quality and standard of education that one should have it.

For the operation of these treaties, it’s a pleasure to mention India is a state party the CERD convention, the CEDAW convention and the convention of the rights of the child.

Some international organizations working for the promotion of education

• UNESCO
• UNICEF
• Amnesty International
• The International Labour Organization
• The World Bank

These all international organizations and treaties made out hard their efforts to eliminate the problem of poverty through education, although there are many international problems but to attain them first we have to accomplish the task of education and for this it is very crucial that every child must have access to standard quality of education (primary) and should get a chance of higher and advanced education.

Right to Education in India

Education is the process of making things learned and acquisitions of knowledge, skills, beliefs, and habits and helps to lift those who belong to socially and economically marginalized from poverty. 

India is known as the home to 19% of the world’s children. What does that mean? India is a country where the majority of youngster lived. But it is also true that one- third of the world’s illiterate population resides in India. It is not like that the rate of literacy has not been increased, it is, but the rate of growth is rapidly very slow in contrast to decline. from 1991 to 2001 the rate was 12.6% while it has declined to 9.21%.

To tackle these alarming issues, the government of India introduced the right to free and compulsory education act, RTE and making education as a fundamental right for the children’s age group of 6-14.

The Right to education act is an act of parliament proposed on 4 august 2009 which shows and highlights the model of the importance of free and compulsory education to children age group 6-14 in India. India has become one of the 135th countries to implement the right to education as a fundamental right guaranteed in our constitution under Article 21A to every child. This act came into force on 1st April, 2010.

Challenges and Implications

Although the right to education becomes the fundamental right but still a parliamentary process and largely expected to become a reality soon, determined to succeed for a country who has witnessed policy failure for a decade. We observe that education is never inexpensive, neither free nor compulsory. To make a move through legislative enactment is a major shift for the state-guaranteed education provisions given to disadvantaged groups who had witnessed the history of provisions that have consistently failed from protecting the interest of minority class.

Studies have uniformly shows that those who have excluded from the education reflects largely inequality with social, political and economic fabric likely of caste, class, and gender. Edges of exclusion are broadly possessed in occupational and social classification.

For example children of upper sophisticated class, or small families and households who are economically stable and depend on non- agricultural profession has better educated.

One of the biggest reasons which impediments India’s progress and could not enable it to achieve its high level of illiteracy, especially when the gap between discourse, debate and structural framework in all policy effort in education, and more prominently development have been the main genesis for India’s poor performance in securing the equitable educational opportunity for all. Despite the variety of commitments and right laid down in Indian constitution regarding equality is constantly failed to satisfy the ambition developed by the birth it comes to women and girls. Despite several attempts and efforts through educational reforms by the government, the most recent census (2011) reports that overall youth literacy is at 74.04% – 82.14% among males and only 65.46% for females. This data clearly shows that the dramatic disparity and indifferences in the literacy levels between genders, amounting to a gap of 16.68%. The situation is even more shoddy for women residing in rural areas. Another more crucial factor which always a wall against any policy is “Poverty” and can be blamed for many problems in India, including that of a low female literacy rate. More than two-thirds of India’s population lives below the poverty line. although the government is putting many efforts to make primary education free, many families are still not ready to send their children to school. As parents think instead of going to school which is located at a far distance from their villages or homes to go to work and earn a livelihood.

There are many more challenges, but the above discussed are creating more problems before the government while the formulation of the RTE Act.

Constitution on Education

The basic structure gives every citizen social justice and, education is a social aspect, which needs to be addressed by policymakers if the population is lacking behind literacy level than there will be no equality of opportunity to be a real provision. And if the person is not given the chance to make his/her life, free from misery and problems than one can not be attained social transformation, which is the cornerstone of education. 

 The Right to education is now become the fundamental right and included in part III of the Indian constitution under article 21-A. This was done in the case of Mohini jain vs. state of karnataka [1]. Supreme court division bench decide this case. Justice comprising of Kuldip Singh and R.M Sahai held that:

“Right to education is the essence of the right to life and directly flow and interlinked with it, and life living with dignity can only be assured when there is a significant role of education”.

Later, the validity of this judgment re-examined in by five judges bench in J.P. Unnikrishnan v. State of Andhra Pradesh [2] and held that:

“Right to education means citizen has the right to call up the state to provide the facilities of education to them in according to the financial capacity”.

The above-stated cases enumerate the right to education to be in part III being as a fundamental right. There are many more cases which seeks that right to education is a fundamental right, in the case of Maharashtra State Board of Secondary and Higher Education vs. K.S. Gandhi [3], the supreme court referred above judgment in relation to case Bandhua Mukti Morcha, etc v. Union of India [4].

• It would be therefore the necessary duty of the State to ensure the facilities and opportunity to children enjoined under article 39(e), 39 (f) of the Constitution and to prevent exploitation of their childhood due to extreme poverty and notion.

Provisions given in the Constitution promoting and strengthening the educational framework in India 

• Article 28: In our Constitution Article 28 provides freedom to attend any religious instruction or religious worship in educational institutions.
• Article 29: This article gives equality of opportunity in educational institutions.
• Article 30: Acknowledge the right of minorities to establish and administer educational institutions.
• Article 45: This article mandate the state shall dispense to provide within a period of ten years from the inception of this Constitution for free and compulsory education for all children of this country until they complete the age of 14 years. The responsibility for providing elementary education lies with the scope under state Government, the central Government, the Local Bodies and authorities, and voluntary organizations or any other government organization.
• Article 46: Talks about the special care for the furtherance of education and economic interests of the Scheduled Tribes, Scheduled Caste, OBC and the weaker sections of society.
• Article 337: This article regulates the special provision with respect to educational grants for the benefit of the Anglo-Indian community.
• Article 350B: It provides for grants and offers for linguistic minorities.
• Article 351: This article deals with the development and promotion of the Hindi language.

86th Constitutional Amendment Act

This constitutional amendment is made with regard for protecting the citizens right of education, as we know the challenges in India regarding education, so it is quite necessary for the policymakers of this country to amend the constitution and bring some changes in educational policy, so that more people in India will get the right of education, and transforms their lives towards a better future.

86th constitutional amendment act, 2002 brings three new changes in our constitution, for the better functioning, and to facilitate a better understanding of the right to free and compulsory education to the children age group between six to fourteen. (6-14)

These are:

1. Insertion of new Article i.e, 21A in part III of the Indian constitution, which provides that every child has the right to free and compulsory education of equitable quality and subject to some norms and standards.
2. Bring alteration and modification in Article 45 and substituted as the State shall endeavor to assure early childhood care and free and compulsory education for all children until they complete the age of six years.
3. Adding the new clause, (K) under Article 51A, the result of this new fundamental duty is added which states that whosoever is a parent or guardian has a duty to furnish opportunities for education to his child or, as the case may be, ward between the age group of six to fourteen years.

• In Shyam Sundar case [5]

Court held that the “right of a child should not confines only to free and compulsory education, but should be enhanced to have quality education without any discrimination on the basis of their economic, social and cultural background.

Judicial Approach

The State of Madras v. Shrimati Champakam Dorairajan [6], in this case the supreme court gives a landmark judgment. This judgment results in the First Amendment of the Constitution. Here the court held that providing such contradictory reservations was the reason for infringement of Article 29(2) of the Indian Constitution. Court held:

Fundamental rights are sacred and can not be a subject to abridged by any legislative or executive action or order except provided in part III. directive principles of state policy have to be uniform and should be run on a subsidiary basis related to a fundamental right. However, if there is no infringement/violation of rights conferred by part III of the Indian constitution, there can be no objection over, the state acting in accordance with the directive principles of state policy.

The observation of the right to free and compulsory education was put up in the case of Mohini Jain in 1992, which famously known as “capitation fee case”.

The questions to be observed in this case were:

1. Is there a clause of ‘right to education’ guaranteed to the people of India provided in the Constitution? 
2. If so, does the aspect of ‘capitation fee’ implied in the same?
3. Whether putting of capitation fee in regard to admission to educational institutions is arbitrary, unjust, and unfair and such violates the equality clause provided in Article 14 of the Constitution?

The division bench of the Supreme Court said that the ‘right to life’ is an essential element for all those rights which the Courts must enforce as they are important to the dignified enjoyment of life. The right to education moves directly from the right to life. The right to life provided under Article 21 and the dignity of an individual life is not being achieved unless it is tossed and coupled with the right to education.

Education in India can not be a product for sale. We hold that every citizen of India has the ‘right to education’ under the Constitution. The State is under a legal obligation to formed educational institutions to enable the citizens to enjoy the right mentioned above. The State may discharge its duty through State-owned or State-recognised educational institutions. When the State Government gives grants recognition to the private educational institutions it mandates an agency to fulfill its duty given and mentioned under the Constitution. The students must be given admission to the educational institutions – whether State itself owned or State recognized in bearence of their ‘right to education’ under the Constitution. Charging capitation fee for the purpose of admission to an educational institution is a violation of a citizen’s right to education under the Constitution.

Court also observed that the Constitution made it compulsory to give education to all its citizens. This interpretation solely would assist the people to metamorphose the objectives of political economic and social justice. And charging capitation fee of large sums by institutions of higher education is a repudiation of the right to education.

The Supreme Court observed the validity of the verdict given by the court in Mohini Jain in the case of Unnikrishnan.

The bench of five Judges by 3-2 majority partially agreed with the Mohini case decision and held that right to education is a fundamental right under Article 21 of the Constitution as it directly flows from “right to life”. As considered, the court partially overruled the Mohini Jain’s decision and observed that the right to free and compulsory education is available only to children until they complete the age of 14 years, after that the responsibility of the State to provide education is subject to the limits of its economic capacity. “Thus it is well observed by the decisions of this Court that the provisions of Part III and Part IV are complementary and supplementary in nature to each other and fundamental right means to achieve the goal inculcate in Part IV of Indian constitution, It is also observed that the fundamental rights should be established in the light of the directive principles”.

Right To Education Act, RTE 2009

Historical Background

• 1950: Constitution of India provided under Article 45, as one of the directive principles of State policy, which states that: The State shall endeavor to provide for a period of ten years from the inception of the Constitution, for free and compulsory education for all children until they reached the age of fourteen.
• 1968: First National Commission established for education under the supervision of Dr. Kothari and submits its reports. It introduced several far-flight changes as a uniform syllabus for both boys and girls, mathematics and science should be made as compulsory subjects and It is also proposed a common school system.
• 1976: Constitutional amendment for making education in a concurrent subject (responsibility of central and state) was passed.
• 1986: The National Policy on Education (NPE) supports to Common School System (CSS) and was formulated. Subsequent NPE’s endorsed CSS but it has never been implemented.
•  1991: A book is written Myron Wiener bearing the title The Child and State in India: Child labour & Education in comparative perspective highlighting the states’ failure to swap up child labour and exploitation on child and enforce compulsory education in India.
• 1993: The Supreme court in the case of Mohini Jain and Unnikrishnan vs State of Andhra Pradesh ruled that the right to education is a fundamental right that flows from the Right to life in Article 21 under Indian Constitution.
• 1997: Constitutional Amendment for making Education as a fundamental right was introduced.
• 2002: 86th Constitution Amendment takes place and insertion of Article 21A has been done, which states that “The State shall be bound to provide free and compulsory education to all children of the age group between six to fourteen years in such as a law, determine.” This 86th Amendment also brings changes in Article 45 which reads as “The state shall endeavor to dispense early childhood care and free education for all children until they reached the age of 6 years”. And also added a new fundamental duty under Article 51A(K).
• 2005: CABE committee report established to draft the Right to Education Bill submits its report.
• Every time a new phase or version was placed until it was presented in Parliament in 2008.
• The bill was approved by the cabinet members on 2 July 2009.
• Lok Sabha passed the bill on 4 august 2009 and the Rajya Sabha on 20 July 2009.
• It received President assent and was conferred as the law on 3 Sept 2009 as The Children’s Right to Free and Compulsory Education Act RTE, 2009. 

After many schedules of meetings, drafting and redrafting the right to education act was made which is a genuine instrument to full fill the basic demand and securing social justice for every child. This policy work on 4A’s which tells about what education means to them and their present situation in the context of this ideology.

Availability – In that sense education is free and the government is bound to fund the education and expert teachers in his/her subject and well qualified are there and sufficient infrastructure able to support educational framework.

Accessibility – Means the education is for all, there is no sense of discrimination especially to support the weaker section of the society.

Acceptability – That the value of education is appropriate, there is no discriminatory and culturally acceptable, and subject to some quality; that the school place which is harmless and teachers are well qualified.

Adaptability – That education dynamic and develop with the changing needs of society and its people and contribute to overcome the inequalities, such as sex discrimination.

Main features of the Right to Education Act 

• Compulsory and absolutely free education to all children of India, between the age group of 6 to 14.
• No child shall be put off, expelled and scold or required to pass a board examination until he reached up to elementary education.
• If a child above the age of 6 years has not been admitted to any school or may not complete his or her elementary education, then he or she shall be admitted to a class which is according to his or her age. However, if the case may be where a child supposed to be admitted in a class according to his or her age, then, in order to comparison with others, he or she shall have a right to receive special training and special care within such time limits as may be prescribed. Provided further that a child so admitted must have the right to elementary education and guaranteed free education till he/she completes the elementary education even after he/she reached the age of 14 years.
• Proof of age to take admission: For admission to elementary education, the age of a child shall be determined on the basis of the birth certificate issued in accordance with the Provisions of Birth. Marriages and death Registration Act 1856, or on the basis of such other documents as may be provided in the annexure. however, no child shall be left out for admission in a school for lack of age proof or other documents.
• When a child who completes his/her elementary education shall be given a certificate
• Call needs and attendance need to be taken for a fixed student-teacher ratio.
• Twenty-five percent reservation for economically disadvantaged and weaker communities in admission to Class I in all private schools is to be compulsory.
• Improvement in the quality of education should be dynamic and important.
• School teachers will need adequate professional degree within five years or not fulfill the condition might lose the job.
• School infrastructure (if there is a problem) need to be improved in every 3 years, else recognition to that particular school will be canceled.
• The Financial burden will be shared between the central and the state government as an educational subject comes under the concurrent list.

RTE Amendment Bills

• The Parliament has given its assent for the Right of Children to Free and Compulsory Education (Amendment) Bill, 2018.

The amendment bill does away with the no-detention policy mentioned in the law. Prior to this a child can not be held back or detained until he completes his elementary education. But after the amendment its depend on the state to continue the policy of non-detention or not.

Or the state may conduct the examinations either at the end of the 5th class or 8th class or both. The Student who failed in the examination will be given instruction and opportunity provided to appear for re-examination as per prescribe 2 months after the declaration of result.

• The Right to free and compulsory education to children (Amendment) Bill, 2017. The Bill provides to amend the Right of Children to Free and Compulsory Education Act (RTE), 2009 to extend the last date for teachers to acquire the prescribed minimum qualifications for the purpose of the appointment.

Unqualified and untrained elementary teachers to complete their training and ensure that all teachers at the elementary level have a certain minimum standard of qualification. It will help to ensure that all teachers have minimum qualifications as deemed necessary to maintain the standard of teaching quality.

Challenges for the implementation of the RTE Act

• The issue to share the burden 

This act made accountable to state and local bodies for its implementation. State tells that the local bodies are not sufficiently in its financial capacity to cover all the school bought under universal education. In that case, a center that holds most of the revenue tax has to support the state. The Anil Bordia Committee was set up by the HRD ministry to harmonize Sarva Shiksha Abhiyan and RTE Act. And the committee asked to look into the requirements of funds. Initially estimated that 1,71,000 crore required to implement the Act for the next five years. The committee argued for central it is a higher financial burden and it should be a 50:45 sharing ratio for the current year and 50:50 (2011-12). This seems very unrealistic for the state as the state should have to double their allocations. However, in April 2010 central agree to share the funding in raion 65:35 between center and state and a ratio of 90:10 in the matter of north-east state.

• RTE challenged by private schools

Right to education define school under aided by Government funds or by local bodies not aided by Government and school authorities.

this impliedly means private schools also comes under this act and mandate for all to hold up 25% seats for economically weaker section children and for reservation merit. By posing this rule, affect the business of private school and violates fundamental right provided under Article 19 1(G). But 19 (6) mandates the above article and which says that nothing in sub-clause (g) of the said clause shall affect the course of any operational law in so far as it imposes, or restrict the State from making any law imposing, in the contradiction interests of the general public, reasonable restrictions on the exercise of the right conferred. RTE was challenged before the Supreme Court as an unconstitutional infringement on the rights of private and minority schools.

On 12 April 2012, a three-judge bench of the Supreme Court gives its judgment by a majority of 2-1. Chief Justice SH Kapadia and Justice Swatanter Kumar held that providing such reservations is not illegal and unconstitutional, but observed that the Act will not be applicable to unaided private minority schools and boarding schools. However, Justice KS Radhakrishnan dissented with the view and held that the Act can not apply to both minority and non-minority private schools which do not receive any fund or grant from the government.

Free Uniform, Books under RTE Act

Each and every child from class 1st to class 8th will get the free books of course and uniform if the roadmap prepared by the central to implement the right to education act and the same accepted by the state.

Meeting of state education secretaries held recently and some given below point tabled:

• About 7.8 lakhs additional classrooms and 7lakhs girls toilet have to be created for the implementation of this act. And the government will spend 1.71 lakh crore for the next five years to implement this law.
• Every child will be provided by uniforms @ 400 per annum, and some states provide the uniforms from their budget. It is mandated that the uniform will be provided by the state government.
• Every child has to given free textbooks and the child having special care will get 3000 per annum for inclusive education and disabled students for the home-based study will get Rs. 10,000 per annum.
• Rs. 1.71lakh crore will be spent on infrastructure and for the training of untrained teachers, teachers’ salaries and civil work depend on 28% and 24% respectively.
• A Requirement of additional 5.1 lakh teachers to bear the rate of pupil-teacher ratio.
• Nearly about 27,000 kaccha school building upgrades.
• 17% will be spent on child requirements, and 9% will be spent on special training for children out of school. And for requirements of school, it will be maintained by 8% and for inclusive education, 6% set aside.
• RTE mandates free from barrier education to all children irrespective of caste, sex, and religion with special needs and one classroom per teacher.

Suggestions for making RTE effective

1. The scope of the Right to Education act should not be limited to the age of 14 years it should be extended to the secondary level also. The government should make some modifications like introducing diplomas/degrees/courses with specialization in IT, software mobile communication, media, entertainment, telecommunication, automobile, construction or need of the requirement.
2. CSS ( Common School System) was an important step and go hand in hand for attaining equality decades ago, however now it must be changed into MSS (Model school system) based on the dynamic nature and demands of the society where education should be provided free of cost and on joint venture with private institute patterns.
3. Parents need to play a ruthful role in making RTE policy to be a success in India and, for this regards government mandate this as a fundamental duty of guardians and parents. Moreover, it can be done only by motivating them through counseling and guidance, and they must be made alarming about the RTE Act through media, pamphlets campaigns, hoardings, rallies, etc. only then we can aware all people about the importance of education and should expect that our future generations will be well educated.
4. Schemes like mid-day meal, SSA, RMSA accompanied by the world organization like UNICEF are playing an important role in increasing the massive enrollment ratio. By securing beginning and basic education to Indian children. However these international and national agencies should more be focused over weaker sections of the society, economically backward, females and highly populous states of India, these states should be a topmost priority to improve the quality of this act.
5. Most importantly local authorities and governing bodies should get involved so as to ensure the enrolment of the newborn babies and their record should be sent to a neighborhood school. After that school authorities take care and follow up the child and sent the information for registration and admission to his/her parents without any delays.
6. The Provision regarding severe punishment for the abusement of this act should be made out and the responsibilities of the central government, state government, teachers, parents, and administrators, Owners of the school, have to be fixed. It should be made necessary for all the government employees; whether working under state or center or person working under center or state-funded agency, should send their children in government or in government-aided institutes for the promotion of these schools.

RTE Available only form class 1st to 8th

The Most fundamental drawback of the RTE Act is that it only covers children’s age group for up to fourteen years. What for the children who are above then fourteen years of age? What about the student who wants to pursue higher education, forget about higher education what if the child after 8th standard do if he/she is not able to afford education. However, the government did well in this regard and adopted the system of baseline test every 2 or 3 months so to check the student’s knowledge. This system is borrowed from the USA program called no child left behind. So as to find out the interest of a child what he/she does, once the elementary education completes.

Objects of RTE

• As RTE drafted to provide free and compulsory education to every child of this country so as to know one left behind to get social justice.
• As the statistics tell us that the rate of literacy in India is increasing very low so to boost up and made India as a developed economy there must be an enhancement of literacy level.
• To provide assistance to the weaker and economically backward class so they also have some social transformation.
• As the right to education is a basic human right so to ensure this, RTE mandates the educational structure of the country.
• As studies show that there is huge sex discrimination in education, girls will not be allowed to study further due to her expense of marriage, but after making education free and compulsory the ratio gap is covered to some extent.
• Children with disability treat as worthless as their parents find them as a burden but disability comes with talent and government by this act provide grievances to those children who are disabled, and give them assistance and 10,000 per annum, so that they will also have life.
• Through this act people aware of the importance of education in one’s life to mark up their performance towards a better future.
• RTE, fundamentally aims that in India no child is deprived of having the right to education, as education plays an important role so if you invest in it today the interest over it will be handsome in the future.

Conclusion

Generally, education covers 5% of the GDP of any country to support their social transformation. Education is a key to grow finer or one step ahead who is not educated. Education is a powerful tool to provide an opportunity for a human being to develop to the fullest. for the advancement and promotion of the right to education UN human declaration, many more conventions mention about right to education. UNICEF, UNESCO and AMNESTY international organization made tremendous efforts to promote education right to education worldwide. After adopting the right to education India becomes the 135th country to have this law.

Parliament of India through an 86th constitutional amendment made the right to education as a fundamental right under Article 21-A . and for better formulation of the educational framework also enacted an act that is right to the education act. Which provide free and compulsory education to children age group 6-14. And have some features which mandate state and local bodies to provide a right to education to every child of this country and if not, they all are accountable for that. The rate of literacy is still under construction so in order to make this rate on increasing then there should be more act and ordinance of right to education will be accompanied. Then only India can transform into a developing nation, and will never set back as the citizens are educated.

References

1. 1992 AIR 1858, 1992 SCR (3) 658
2. 1993 AIR 2178, 1993 SCR (1) 594
3. 1991 SCALE (1)187
4. (1997) 10 SCC 549
5. https://indiankanoon.org/doc/48937/
6. AIR 1951 SC 226
7. https://www.lawctopus.com/academike/right-education-india/

    

The post Right To Education appeared first on iPleaders.

This article is written by Shivani Verma, a student of Guru Gobind Singh Indraprastha University, New Delhi. In this article, she has discussed the principle of conjugal rights, its prerequisites, history, conjugal rights of husband and wife and its constitutional validity. 

Introduction

One of the basic requisites of marriage is that the husband and wife should live together and respect each other’s mutual rights. Both husband and wife have some mutual obligations towards each other which can not be ignored come what may. This is a distinctive feature of a conjugal relationship. In no other relationship, right to society exists. The expression “conjugal rights” signify two ideas:

• The right of the couple to have each other’s society.
• The right to marital intercourse.

According to Manu, “Let mutual fidelity continue till death. Let a man and woman united by marriage, constantly beware, lest at any time disunited they violate their mutual fidelity.” This is the only positive remedy under the Hindu Marriage Act,1955 while other reliefs tend to weaken the marriage.

Conjugal meaning

The term “conjugal” means “matrimonial”. It refers to the relationship between a married couple. Conjugal rights are matrimonial rights of both of the spouses. One spouse is entitled to the society, comfort and consortium of each other. The expression “Restitution of conjugal rights” means the restoration of matrimonial rights. Provisions regarding restitution of conjugal rights are provided in various Personal Laws such as:

1. Section 9, Hindu Marriage Act, 1955
2. Section 22, Special Marriage Act, 1954
3. Section 32, Indian Divorce Act, 1869
4. Section 36, The Parsi Marriage and Divorce Act, 1936

Click Here

Prerequisites for grant of Restitution of Conjugal Rights

To obtain a decree of restitution of conjugal rights, the petitioner has to prove that:

1. From the society of the petitioner, the respondent has withdrawn.
2. The withdrawal by the respondent is without any reasonable excuse.
3. The court is satisfied with the fact that the statements made in the petition are true.
4. There is no legal ground for refusing to grant application.
5. Then the court may direct the respondent party, to live with the petitioner.

Withdrawn from society

It means withdrawal from all types of conjugal relationships. It includes:

1. Refusal to stay together,
2. Refusal to give comfort to each other,
3. Refusal to have marital intercourse, or
4. Refusal to discharge matrimonial obligations.

In Zavari vs. Zavari[1], the court held that in the petition of restitution of conjugal rights if the aggrieved spouse proves the withdrawal from the society by the defendant, the defending spouse must prove that he/she had a reasonable excuse to withdraw from the society in the court only then the decree of restitution of conjugal rights must be granted. When the husband persuades wife to come back from her parents home, stay with him and to resume marital life by writing letters and she is not ready to live with her husband because of the intimidating contents mentioned in the letter then the court will consider such letters to be harmless documents.

Without Any Reasonable Excuse 

Without any reasonable excuse includes:

1. High standard of living is not maintained by husband,
2. The husband refuses to live with her in her paternal place, or
3. There is an agreement between the parties(ante-nuptial/postnuptial) and it is opposed to the public policy etc.

In the case of Shanti Nigam vs. Ramesh Chandra[2], the court observed that withdrawal from the society of the husband may be physical but without any intention to leave his company. So as long as wife completely cut herself and decided not to go to her husband and she breaks all marital ties with him then it will be a ground for a decree of restitution of conjugal rights. Refusal to quit the job at the instance of the husband is not a ground for a decree of restitution of conjugal rights. The court also said that it will not follow the old concept and rules, its decision will be based on considering the present-day situations..

Effect of the Decree of Restitution of Conjugal Rights

If the decree of restitution of conjugal rights is passed by the court than it is compulsory for the respondent to resume cohabitation with the plaintiff and if the respondent fails to do so within one year then it can act as a ground for divorce for the plaintiff.

In the case of Sushil Kumari Dang vs. Prem Kumar[3], the appeal of a wife against the decree of restitution of conjugal rights was allowed by the court. The husband filed a petition for restitution of conjugal rights because the wife has left his matrimonial home against his wish and consent and is living separately and she is not ready to come back. But the court through facts and circumstances of the case found that the intention of the husband behind this petition is not genuine. So the court allowed the appeal of the wife.

In Shanti Devi vs. Balbir Singh[4], the court provided the requirements for filing the petition for restitution of conjugal rights. The court said that it has to be seen whether one spouse has withdrawn from the society of the other without any reasonable excuse. The second requirement is that the court must be satisfied with the facts mentioned in the petition. And at last, there should be no legal ground for rejecting the petition. But if the husband is having a love affair with a girl, or his behaviour towards his wife is torturesome than these will be considered as reasonable excuses.  

Resumption of Cohabitation

The petition for restitution of conjugal rights is not maintainable if the parties resumed the cohabitation. There can be a resumption of cohabitation by resuming to sexual intercourse in case their circumstances prove that setting up of a new matrimonial home is not possible. But it depends upon the intention of the parties. Mere acts of sexual intercourse will not be proof that the parties have resumed cohabitation.

If a spouse has withdrawn and later made several attempts to resume cohabitation with a bona fide intention and the other spouse refused, then, in this case, it was held that the spouse who initially withdrew from the society was entitled to the decree of restitution of conjugal rights as his/her original wrong was rectified by the bona fide offers made by him/her to resume cohabitation. The offer must be with a bona fide intention if such intention is not there than there can be no question of resumption of cohabitation.

Matrimonial Rights

Several rights and duties that start from the day husband and wife get married. Those rights and duties are known as “matrimonial rights”. After marriage, a wife has to leave her home and adjust with the new surroundings. In order to protect her from the various atrocities that she may face, various matrimonial rights are provided to her, such as:

1. Right to streedhan: wife has a right over all the streedhan she gets before and after her marriage. Streedhan is the property or gifts that are made to a woman before, during or after her marriage on which she has complete possession. 
2. Right to residence: wife has a right to stay in the matrimonial home where she shares the society of her husband.
3. Right to a committed relationship: wife has a right to have a committed relationship, disloyalty on any ground from her husband’s side will be punishable by a court.
4. Right to live with dignity and respect: she must be treated with respect and must live with the same dignity as all other people in the house.
5. Right to maintenance by the husband: a husband must provide maintenance and financial support to her.
6. Right to child maintenance: in case of a minor child, the husband is responsible to maintain and provide financial support to the child.

In Swaraj Garg vs. K.M Garg[5], the court held that if a husband and wife are gainfully employed and the wife is earning more than the husband, then there are sufficient reasons for the wife to live separately. So, in this case, the court didn’t grant the petition for restitution of conjugal rights in favour of the husband. The court also said that there is nothing in Hindu Law saying that the wife has no right in choosing the place of a matrimonial home.

Judicial Separation

Instead of a divorce, if the parties are willing to give each other some time and don’t want to seek immediate dissolution of marriage then the remedy of judicial separation is asked for. It does not affect the legality of the marriage. It is a temporary suspension of marital rights between the spouses.

The Hindu Marriage Act,1955 provides the provision for judicial separation under section 10. If the cohabitation between the spouses didn’t resume for one year or more the decree of judicial separation act as a ground for divorce.

Section 10(1) states that the parties to a marriage solemnized before or after commencement of the Hindu Marriage Act,1955 may present a petition in order to obtain a decree of judicial separation on any of the grounds mentioned in Section 13(1), and the wife can also seek divorce on the grounds mentioned in Section 13(2).

In section 10(2) it is mentioned that after obtaining a decree of judicial separation, it is not obligatory for the parties to cohabit together but the court may revoke the decree if it finds it reasonable to do so.

Grounds For Judicial Separation

Following are the grounds for judicial separation –

1. Adultery towards the spouse: If a party had voluntary sexual intercourse with a person other than his/her spouse, then it can act as a ground for judicial separation for the other spouse.
2. Cruelty towards the spouse: When the petitioner is treated with cruelty, then the petitioner can claim the decree of judicial separation. 
3. Desertion by the spouse: If one spouse deserts the other without a proper excuse, without his/her consent for a continuous period of two years then the neglected spouse can seek judicial separation on this ground. 
4. Unsoundness of mind of the spouse: In order to get a decree of judicial separation a petitioner has to prove that the respondent has been incurable of unsound mind and the petitioner cannot be expected to live with the respondent.
5. Attempting to Convert one party to another religion: If one spouse converts him/her into another religion then it can act as a ground for judicial separation for the non-converting spouse.
6. Any of the parties are suffering from virulent and incurable leprosy: If one spouse is suffering from a virulent or incurable form of leprosy then the other spouse can file a petition for judicial separation on this ground.
7. Any of the parties are suffering from the venereal disease: If the respondent has been suffering from venereal disease in a communicable form then the petitioner can seek a decree of divorce on this ground.
8. If any spouse Renounce the world: If a spouse renounce the world, and before that he/she was married then the other spouse has a right to seek judicial separation.
9. If the spouse is missing from a continuous period of 7 years: If the spouse is missing for a continuous period of seven years and there is no information about the missing spouse from his near and dear ones then the petitioner can seek divorce.

Additional Grounds for Wife To Claim Judicial Separation

A wife can seek divorce on the grounds not only mentioned in Section 13(1) but also on the grounds mentioned Section 13(2).

Following are the grounds that are mentioned in section 13(2) –

1. Bigamy: Wife can claim a decree of judicial separation in case of bigamy, if she proves that that respondent-husband had married again before the commencement of this act and his other wife was alive at the time of the presentation of the petition.
2. Rape, sodomy, bestiality: If the husband is guilty of rape, sodomy, bestiality than the wife can seek judicial separation on this ground.
3. Non-resumption of cohabitation after the order of maintenance: If the cohabitation between the parties has not been resumed for a period of one year or more since the passing of the decree of maintenance under section 18 of the Hindu Adoption and Maintenance Act, 1956 or under section 125 of CrPC against the husband, then the wife can seek judicial separation on this ground.
4. Repudiation of marriage (at the option of puberty): If a girl is married before attaining the age of fifteen years then she can repudiate her marriage after attaining the age of fifteen years and after attaining the age of twenty years. 

Effects of an Order of Judicial Separation

Following are the effects of an order of judicial separation –

1. The marriage is not dissolved in this case.
2. There is no compulsion for the spouses to live together or eat together as judicial separation is separation from bed to board.
3. After the decree, it is not necessary for the parties to cohabit together.
4. The parties can resume cohabitation with each other without undergoing the ceremony of marriage.
5. If either of the spouses marries during the period of the decree, then he/she will be liable for bigamy.
6. The wife is considered as independent women from the date of decree till separation.
7. The petitioner
   1. If she is the wife, becomes entitled to alimony from the husband, and
   2. If he is the husband, he may claim maintenance from wife under section 25 of the Hindu Marriage Act,1955.

History of Conjugal Rights

Evolution of conjugal rights is different in various countries. To establish a comparison, we will first be looking at the development of conjugal rights in English Law, Canada and Australia. After that, we will try and understand the history of conjugal rights in India and how it has changed over the years.

English Law

Earlier in English Law, the decree of restitution of conjugal rights was provided by ecclesiastical courts that were known as Court Christian or Court Spiritual. Later the decree was obtained through the Court for Divorce and Matrimonial Causes.

Before 1813, matrimonial offences did not include desertion in it, so a deserted spouse could ask for the remedy of restitution of conjugal rights. Once the decree was provided, the spouse had to return home and continue with his/her marital obligations. If one did not comply with the decree than he/she was punished with excommunication.

Following Acts were prevalent are as follows: 

1. The Ecclesiastical Courts Act,1813 replaced the punishment of excommunication with imprisonment up to six months.
2. The Matrimonial Causes Act,1923 provides that the wives no longer needed to ask for a decree of conjugal rights on the ground of cruelty alone instead she was given the right to divorce her husband. This equalized the grounds for divorce for both husband and wife. 
3. Supreme Court of Judicature(Consolidation) Act, 1925 repealed the Matrimonial Causes Act, 1925. Failure to comply with the order of conjugal rights would not be considered as desertion and will continue to be a ground for judicial separation. New provisions were also made by the act for finances, alimony that has to be provided by the husband to the wife, related to the share of property between husband and wife and the custody of children.
4. The Matrimonial Proceedings and Property Act 1970(Abolition Act) abolished the action of conjugal rights as it was seen as an outdated action.

Canada

Restitution of conjugal rights has been a part of the law in Canada because traditionally Canadian family regulations were based upon concepts already existing in English Common Law except in Quebec. The legal action of restitution was abolished in Britsh Columbia by the Family Relations Act, R.S.B.C.1979 and through several other provisions.

In Alberta, the Family Law Act, 2005 abolished the action of restitution of conjugal rights. Moreover, the law has never been strict in Alberta. In fact, if the spouse does not comply with the degree, it serves as a ground for judicial separation.

In Saskatchewan, by repealing the section based on the restitution of conjugal rights it completely abolished the concept through the Family Maintenance Act, SS 1990-91.

In Nova Scotia, Matrimonial Statutes Repeal Act repealed six legislations, some of them referred to restitution of conjugal rights in the year 2012.

In New Brunswick, the legislation which included restitution of conjugal rights was repealed by “Act to Repeal the Divorce Act”.

Australia

Courts have no power to make a decree for restitution of conjugal rights as it was abolished by the Family Law Act, 1975. Section 114(2) of the Family Law Act, 1975 provided that the court can order a party to provide for conjugal rights or marital services. But it was last used in 1978 and has now become obsolete. This was also supported by the Australian Law Commission in 2010 which was in favour of this view and said that Section 114(2) is inconsistent with the principles of Family Law so it should be abolished.

India

Indian laws borrowed the principle of restitution of conjugal rights from the English law. These rights were borrowed from various colonies of England. For all the religious communities, due to the absence of any statutory law, the Indian law passed the order for restitution of conjugal rights.

The first time this principle was applied in India in 1886 in the case of Moonshee Bazloor vs. Shamsoonaissa Begum by the Privy Council. The importance of this principle was clearly laid down in the 71st Law Commission Report. This report provides that divorce and getting separated is the only solution, marriage is a sacramental tie and efforts should be made for reconciliation rather than breaking the tie completely. 

Conjugal Rights of husband

Post marriage, husband and wife must live together. If in any circumstances the wife denies to stay with the husband and withdraws from his society without any reasonable excuse than the husband may file a petition for restitution of conjugal rights. If the court is satisfied and there is no legal bar to it, then the petition is granted.

Restitution of Conjugal Rights filed by the wife

In case, if husband withdraws from the society of wife, and denies to obey any matrimonial duty and deny to perform any matrimonial rights and that too without giving any proper excuse the wife may claim the right of restitution of conjugal rights by filing a petition in the court.

During this period can the wife claim maintenance?

Maintenance is provided to either of the spouses in case if he/she is not able to maintain themselves or they are not financially independent enough to earn a living for themselves.

Yes, the wife can claim maintenance under Section 25 of Hindu Marriage Act,1955. If the decree is not obeyed then the court may attach the properties of the husband. It is also applicable to the provision of judicial separation. Moreover, if the decree is not obeyed for a period of more than one year than it is considered as a ground for divorce.

Also, Section 18 of the Hindu Adoption and Maintenance Act,1956 provides the grounds under which wife can claim maintenance and the grounds where she cannot claim maintenance. 

Wife denying husband Conjugal Rights

If the wife denies to enjoy the conjugal rights or withdraws from the society without any reasonable cause, then the husband can file a suit for restitution of conjugal rights.

Reasonable Cause

A reasonable cause could be any act that will make impossible for the wife to live with the husband. If the court is satisfied that the ground is a reasonable one, then the court will dismiss the petition otherwise it will pass a decree in favour of the husband. 

The burden of proof lies on both the parties i.e. husband as well as wife.

1. Petitioner: husband needs to prove that the wife has withdrawn from his society.
2. Respondent: wife has to show a reasonable cause for doing so.

Circumstances under which withdrawal from the society of husband is justified

1. When husband remarries: in case the husband remarries when the first wife is still alive, then he loses the right of restitution of conjugal rights for the second wife and it is a valid ground for the wife to withdraw from the society of husband.
2. When conduct of the husband makes it impossible for the wife to live with the husband: In the case of Moonshi Buzloor Ruheem v. Shamsonnissa Begum[6], it was held that if a husband treats wife with cruelty or there is gross negligence on the part of husband for performance of marital obligations, then it is the valid ground for refusing him relief.
3. In case, if the wife is living separately due to a different place of work: when the economic considerations require the wife to take up the job because it is necessary for the upkeep of the family.
4. In case, if there is no economic necessity for the wife to take a job and live separately, this was decided by the court in the case of Smt. Kailash Wati v. Ayodhia Prakash[7], in three parts-
   1. If the wife is already working before and at the time of marriage, then it does not give the husband a right not to share his matrimonial home with her.
   2. If the husband himself encourages the wife to take up employment after marriage then the husband cannot give up his right to live with his wife.
   3. But if the wife takes up employment against the wishes of her husband then it is the case of unreasonable withdrawal.

Constitutional validity

The constitutional validity of section 9 of the Hindu Marriage Act,1955 has always been a matter of debate. It has been discussed in three landmarks and most important cases.

1. In 1983-1984, the High Court of Andhra Pradesh in T.Sareetha vs. T.Venkatta Subbaiah [8], observed that the decree of restitution of conjugal rights is uncivilized, barbarous, an engine of oppression and assailed. It is the grossest form of violation Article 14, 19 and 21 of the Constitution as it denies women her free choice as to whether, when and how she is to become a vehicle of procreation of another human being. The court also said that since it did not serve any social good, it must be held to be arbitrary and void offending Article 14 of the Indian Constitution.
2. The Delhi High Court, in Harvinder Kaur vs. Harmandar Singh[9] case not only upheld the validity but also discussed its advantages. He observed that the purpose behind the decree of restitution of conjugal rights is cohabitation and consortium and not only sexual intercourse, so there is nothing barbarous or coercive about it. It aims at stabilising a marriage and encouraging reconciliation.
3. The debate on the constitutional validity of Section 9 was settled by the Supreme Court in the case of Saroj Rani vs.Sudarshan Kumar[10]. The court overruled the judgment of Andhra Pradesh High Court and said that Section 9 of the Hindu Marriage Act, 1955 is not violating Article 14, 19 and 21 of the Constitution. In fact, it serves a social purpose by preventing breakup in a marriage. In case the order is disobeyed then the court has no right to enforce sexual intercourse between the spouses and if the parties don’t resume to cohabitation after one year of the passing of such decree then they can obtain a divorce on this ground alone.

The idea behind providing for restitution of Conjugal Rights

As marriage is considered a sacramental tie, in Hindu Shastra it is believed that a man is incomplete without his wife and they both need the company to provide support to each other. The idea behind is to preserve the marriage tie as far as possible through court intervention and ask the withdrawing party to join the other party.

Restitution of Conjugal Rights judgements

In the case of Rukmani Ammal vs. T.R.S.Chari[11], Pandrang Rao, J. held that for husband in order to obtain a decree of restitution of conjugal rights it is not necessary that actual cruelty must be established. Hindu Law is silent on the point that whether the husband has a right to seek the help of the court in securing the company of his wife. Hindu law does not consider a suit for restitution of conjugal rights proper. It was also held that whether the husband is entitled to the decree of restitution of conjugal rights must be provided after considering all the facts, equitable relief and equitable consideration must be sought.

In the case of Seetha yamma vs. Venkataramma[12], it was held by Bum, J. that in a suit for restitution of conjugal rights the court will consider the entire conduct of the parties and if it has been proved that the husband has neglected his wife and the suit instituted by the husband is not with a bona fide intention then the suit will be dismissed. It is not obligatory for a wife to prove that she has been subjected to violence by the husband in order to seek the decree for separate maintenance.

Qualifying criteria

When either of the spouses files the petition for restitution of conjugal rights, then he/she has to fulfil the basic criteria. The grounds on which the petition is filed are:

1.  A valid marriage must be there. 
2. The spouses are not staying with each other.
3. The withdrawal of one party from the society of the other should be without any reasonable cause.
4. The petitioner must have a bona fide desire to live with the spouse.

The complaint of restitution of conjugal rights is entertained by the Civil Courts in whose jurisdiction the following was performed.

1. The marriage of the parties was performed.
2. Husband and wife stay together.
3. Husband and wife last stayed.

What the aggrieved party can do? 

The aggrieved party can file a petition in the district court. When the court finds out that the plea of the aggrieved party is based on true facts and they have no valid reason to dismiss it then the court passes the decree of restitution of conjugal rights in the aggrieved party’s favour.

Grounds for Rejection

The petition for restitution of conjugal can be rejected on the following grounds:

1. Any matrimonial relief can be provided to the respondent.
2. For the purpose of employment, the couple needs to stay separately.
3. If the action of the petitioner is not favourable for a marital relationship.
4. Confession made by the petitioner relating to marital misconduct on his part.

Restitution of Conjugal Rights and Divorce

The merging of a petition for divorce and restitution of conjugal rights is still under discussion. Some of the eminent jurisdictional powers are of the view that the petition for conjugal rights can be supported with an alternative prayer for divorce.

While some of them are of the view that the prayer for divorce and conjugal rights are of different nature and cannot be made together. 

Most of them agree on the point that the petitions are mutually destructive as conjugal rights on reuniting the parties rather than separating them and it is the only positive remedy in the Hindu Marriage Act 1955, other remedy tries to disrupt the marriage.

Conjugal Rights in Islam

In Islamic law, it was observed that whenever the wife tries to file the suit for maintenance under section 2(ii) of Dissolution of Muslim marriages Act,1939  the husband used to counter it by filing the suit for restitution of conjugal rights. This makes the study of restitution of conjugal rights in Islamic law important.

What “Right to Conjugal Rights” Legally Means? 

According to Tyabji, “When either of the spouses withdraw from the society of another without any reasonable excuse, the aggrieved party may apply by filing a petition for a decree of restitution of conjugal rights and if the court has no valid reason to reject the petition then the court may order the decree in favour of petitioner”.

It has the same meaning as provided in Hindu Law, restoration or marital relationship between husband and wife. But this right is available to the husband only because the husband can frustrate the wife’s petition for restitution of conjugal rights by pronouncing the decree for divorce. And another main reason behind it is that the suit for restitution of conjugal rights is filed by husband in most of the cases.

Origin of Right to Conjugal Rights 

The Holy Quran under Islamic Law provides the husband with the right to keep their wives with kindness and they can part with them but with equal consideration. The husband has a reasonable right over his wife and not absolute. Husband has no conjugal rights if he had not paid the dower money

1. Prompt dower: If the husband fails to pay prompt dower the can refuse to live with him until the dower is paid. This right continues even if the marriage is consummated.
2. Deferrable dower: The husband gets the conjugal rights when the whole dower is paid as in case of deferrable dower the whole dower is regarded as prompt.

The doctrine of restitution of conjugal rights was made available to Muslims, Hindus, Christians, Parsis and others in Colonial India. With the increase of women empowerment due to the Dissolution of Muslim Marriage Act 1939, in order to counter it, the husband used this doctrine.

The Privy Council laid down in the case of Moonshee Bulzoor Ruheem vs. Shumsoonissa Begum that marriage is a civil contract under Mohammedan law and the court has the power to enforce all the rights and duties which flow from it.

In the case of Abdul Kadir vs. Salima[13], the Allahabad High Court observed that the concept of restitution of conjugal rights must be based on principles of Muslim Law rather than the principle of justice, equity and good conscience. It also stated that the remedy of English ecclesiastical law, right to restitution of conjugal rights became a remedy for breach of marriage because the matrimonial relationship was being a civil contract. 

Right to Restitution of Conjugal Rights Available to Muslims

1. In India, under General laws.
2. In Pakistan, Family courts have exclusive jurisdiction to entertain its suit under section 5 of the West Pakistan Family Courts Act,1964.

Islamicity of the Right of Restitution of Conjugal Rights 

The Islamic personal law instructs the husband to keep the wife with kindness while aiming at preserving the marriage. When the husband is found guilty of gross cruelty towards his wife and deserts her on this account, he will not be allowed to get the relief of restitution of conjugal rights. This was the restriction that was put on the husband’s right to seek the decree of restitution of conjugal rights.

Muslim law provides a defence to the wife so that she can frustrate the husband’s suit for restitution

1. Non- payment of dower.
2. Cruelty: It includes both legal and physical cruelty
   1. Physical cruelty: actual violence is included which causes injury to life, limb or health or causes a reasonable apprehension thereof.
   2. Legal cruelty: It includes all the instances of cruelty stated in Section 2(viii) of the Dissolution of Muslim Marriage Act,1939. 

Other Defences 

1. If the marriage is performed during the iddat period.
2. If the law is satisfied with the reasons of wife for not living with the husband.
3. Irregularity of marriage.
4. If there is no harmony and happiness between the spouses the Islam permits separation.

Section 5 of the West Pakistan Family Courts Act,1964

1. If the husband gets the decree of restitution of conjugal rights then according to Order XXI, Rule 32 and 33 of the Code of Civil Procedure the court can attach wife’s property or can order her to make periodic payments to the husband for non- compliance with the decree.
2. This section was challenged in the case of Nadeem Siddiqui vs. Islamic Republic of Pakistan[14] as it was against the injunctions of Islam.
   1. The court held that there are cases in which it is impossible for the husband and wife to live together so in that case, the court passes the decree of divorce.
   2. Also, there is no Verse or Hadith which put a bar on the Family Court from passing the decree of restitution of conjugal rights.
   3. Hence, it is not against the injunctions of Islam.
   4. Decree of the court has much sanctity in Islam and Rule 32 and 33 of the Code of Civil Procedure gives to the decree of the court.

The laws of Pakistan has no power to force the wife to go to the house of the husband in order to comply with the decree passed in favour of the husband. Right to seek conjugal rights were brought as a countermeasure because of the certain grounds present under the Dissolution of Marriage Act,1939 which allow women to seek dissolution of marriage. Before British Raj, in Islamic Personal Law after the payment of dower, there was no concept of restitution of conjugal rights.

Restitution of conjugal rights is a highly debatable topic because it has a two-fold view, first is that it is a positive remedy that provides marriage with a second chance, another one is that it forces two unwanted people to live together. Before using this remedy each and every aspect of the case must be considered so that it doesn’t get misused.

Draft petition for restitution of Conjugal Rights

BEFORE THE METROPOLITAN MAGISTRATE

KARKARDOOMA DISTRICT COURT, NEW DELHI

PETITION NO. _______/ 2019

In the Matter of:

ABC                                                                                                            ….Petitioner  

Vs.

XYZ                                                                                                         ..Respondent

 U/S 9 of HMA

MEMO OF PARTIES

ABC

S/o JKL,

R/o A – 100,

Karkardooma,

New Delhi – 110096                                                                                        ….Petitioner  

   Vs.

Mansi Mehta

D/o MNO,

R/o B – 26,

Prem Nagar,

Delhi – 110094                                                                                           ….Respondent

Petitioner

Through

For PQR Advocates,

D- 44, Kapoor Building, Saket

New Delhi – 110019

Place: New Delhi

Dated: __.__.2019

 BEFORE THE METROPOLITAN MAGISTRATE

KARKARDOOMA DISTRICT COURT, NEW DELHI

PETITION NO. _______/ 2019

IN THE MATTER OF:

ABC                                                                                                        …….Petitioner  

Vs.

XYZ                                                                                                     …..Respondent

U/S 9 of HMA

APPLICATION UNDER SECTION 9 OF HINDU MARRIAGE ACT, 1955 FOR RESTITUTION OF CONJUGAL RIGHTS.

 MOST RESPECTFULLY SUBMITTED:

1. That the instant application under Section 9 of the Hindu Marriage Act, 1955 is being filed by Petitioner for restitution of conjugal rights.
2. That the Petitioner is ABC, S/o JKL, R/o A – 100, Karkardooma, New Delhi – 110096.
3. That the Respondent is Petitioner’s wife, XYZ, D/o MNO, R/o B – 26, Prem Nagar, Delhi – 110094.
4. The marriage between the Petitioner and the Respondent was solemnized on_(date)_______, in New Delhi, according to Hindu rites, rituals and ceremonies, without any demand for dowry whatsoever.
5. That the Petitioner and the Respondent lived happily together at Petitioner’s place of residence.
6. That when the Petitioner came back home from the office on _____ at ______, he found out that the Respondent has packed all her belongings and left the house.
7. That after trying to contact the Respondent for an hour, the Respondent picked up the Petitioner’s call and told him that she won’t be living with him on anymore. When the Petitioner asked for a reason, the Respondent simply refused to say anything.
8. That the Petitioner found out that the Respondent has gone back to her parent’s house and he went there to understand the problem and bring her back.
9. That the Petitioner went to his father-in-law’s house on ________ and again on ________ to bring the Respondent back to his house; however, on one pretext or the other, the Respondent kept on declining to come along with the Petitioner to his house.
10. That the Respondent has deserted the Petitioner or/and has withdrawn from his company without any reasonable excuse.
11. That the Petitioner submits that he has been sincere, ready and willing to cohabit with the Respondent since the very beginning.
12. That the cause of action for this petition first arose on _________, when the respondent voluntarily deserted the Petitioner and withdrew from his society.
13. That this petition is filed well within the limitation period.
14. That this petition being chargeable with a fixed rate of court fee, the same is paid herewith.
15. The Petitioner craves liberty from this Hon’ble Court to file additional documents and arguments thereof, as and when needed, at a later stage.
16. It is further submitted that a prima facie case exists in favour of the Petitioner.
17. It is further stated that the Petitioner and the Respondent married and were living together in Karkardooma, New Delhi, which falls within the territorial limits of this Hon’ble Court’s jurisdiction, and therefore this Hon’ble Court has jurisdiction to entertain the instant application.
18. This Application has been filed bona fide and therefore ought to be allowed by this Hon’ble Court.

Prayer

In the light of the above-mentioned facts and circumstances, it is most respectfully prayed that this Hon’ble Court may be pleased to:     

1. Pass a decree for restitution of conjugal rights again the Respondent.
2. Direct the Respondent to resume cohabitation with the Petitioner.
3. Pass any other order(s)/direction(s) as this Hon’ble Court may deem fit and proper in the interest of justice.

Petitioner

Through

For PQR Advocates,

D- 44, Kapoor Building, Saket

New Delhi – 110019

Place: New Delhi

Dated: __.__.2019

To know more about Approach of Family Court in settling Matrimonial Disputes, please click here.

References

1. Zavari vs.Zavari, AIR 1975 Guj 158
2. Shanti Nigam vs. Ramesh Chandra, AIR 1971 ALL 567
3. Sushil Kumari Dang vs. Prem Kumar, AIR 1976 Delhi 321
4. Shanti Devi vs. Balbir Singh, AIR 1971 Delhi
5. Swaraj Garg vs. K.M Garg, AIR 1978 Del 296
6. Moonshi Buzloor Ruheem v. Shamsonnissa Begum, (1867) 11 MIA 551
7. Smt. Kailash Wati v. Ayodhia Prakash, LXXIX P. L. R. 216. (1977)
8. T.Sareetha vs. T.Venkatta Subbaiah, AIR 1983 AP. 356
9. Harvinder Kaur vs. Harmandar Singh, AIR 1984 Delhi 66, ILR 1984 Delhi 546, 1984 RLR 187
10. Saroj Rani vs.Sudarshan Kumar, 1984 AIR 1562, 1985 SCR (1) 303
11.  Rukmani Ammal vs. T.R.S.Chari, AIR. 1935 Mad 616 (T)
12. Seetha.yamma vs. Venkataramma, AIR 1940 Mad 906 (V)
13. Abdul Kadir vs. Salima, (1886) ILR 8 All 149
14. Nadeem Siddiqui vs. the Islamic Republic of Pakistan, PLD 2016 FSC 4

The post Conjugal Rights appeared first on iPleaders.

This article is written by Shivani Verma, a student of Guru Gobind Singh Indraprastha University, New Delhi. In this article, she has discussed the provisions related to divorce by mutual consent, the procedure to file for mutual divorce and unilateral withdrawal of consent when the petition is already filed in the Family Court.

The Latin word “Divortium” means “to separate”. Divorce is not favoured and it is only granted in rare cases. Under uncodified Hindu Law, Manu has explained that wife, in any case, cannot be released from her husband by sale or abandonment. But the Modernist Divorce Reforms in independent India made divorce available by Section 13 of the Hindu Marriage Act, 1955 to all the Hindus. This Act has been amended several times and new grounds for divorce are included with.

What is Divorce by Mutual Consent?

When both the parties agree on the dissolution of marriage in a cordial manner which is a more harmonious way rather than fighting in a court and defaming each other. In that case, they may file a petition in a District Court under Section 13B of the Hindu Marriage Act,1955 and the Court may grant them the decree for divorce. Proceedings before Panchayat will not affect the divorce, the parties have to get it processed through Matrimonial Courts.

Section 13B: Divorce by Mutual Consent 

This provision was inserted by Marriage Law (Amendment) Act,1976 and was not originally made by the Hindu Marriage Act. Section 13B of the Hindu Marriage Act,1955 is on the same ground on which Section 28 of the Special Marriage Act,1954 is. This provision is retrospective as well as prospective from the commencement, which means that the parties whose marriage is solemnized before or after the Amending Act can seek the help of this provision in order to get a divorce.

This section explains that to seek divorce by mutual consent, the parties have to file a joint petition in a district court. For filing this petition it is important that for a period of one year or more, the parties are not living together, they have not been able to live together and they mutually agreed to take divorce and put an end to their marital relationship.

Section 13B(2) explains that the parties must wait for at least six months from the date they present the petition and before the ending of eighteen months from the date the petition is presented by the parties, they should together make a step forward to the court. After going through the case, if the court thinks that all the facts are true then it can grant the petition for divorce.

Divorce mutual consent latest judgement

Latest judgements related to divorce by mutual consent is provided in the whole article under different sub-topics such as:

1. 1. No waiting in mutual consent divorce

• Grandhi Venkata Chitti Abbal
• Dinesh Kumar Shukla vs. Neeta
• Hitesh Narendra Doshi vs. Jesal Hitesh Joshi

2. Can the consent be withdrawn after filing for Divorce by Mutual Consent?

• Jayashree Ramesh Londhe vs. Ramesh Bhikaji
• Nachhattar Singh vs. Harcharan Kaur
• Sureshta Devi vs. Om Prakash
• Ashok Hurra vs. Rupa Zaveri
• Anil Kumar Jain vs. Maya Jain

When can a Divorce by Mutual Consent be filed?

The petition for divorce by Mutual Consent can be filed on the following grounds:

1. The petition must be presented to the court jointly by both the parties.
2. The motion before the court hearing the petition should also be by both the parties.
3. For a period of one year, parties must be living separately.
4. Parties are not able to live together.
5. Parties agreed mutually that marriage must be dissolved.
6. It is compulsory for the parties to wait for a period of six months. These six months starts from the date the parties filed a petition for divorce in the court.
7. Concerned parties must make a motion to the court before the expiry of eighteen months from the date the petition is presented for passing a decree.
8. Consent in the case of divorce by mutual consent should not be obtained by fraud, force or undue influence, as per the Section 23(1)(bb) of the Hindu Marriage Act,1955.

What are the different laws of Divorce by Mutual Consent?

The provision for divorce by mutual consent is presented in various personal laws such as:

Hindu Marriage Act,1955

Section 13B of The Hindu Marriage Act,1955 provides the provision for Divorce by Mutual Consent. It explains that if the parties that are living separately continuously for a period of one year and parties are not able to live together and have agreed to separate mutually then they can seek divorce by mutual consent.

The Muslim Women (Protection on Divorce) Act, 1986 and Personal Laws

According to The Muslim Women(Protection on Divorce) Act, 1986 and Personal Laws, Muslims can seek Divorce by mutual consent. There are two types of divorce by mutual consent in Muslim Personal Laws:

1. Khulla 
2. Mubarat 

Both under Khula and Mubarat, there is no need for giving any reason for divorce and in case of Mubarat no consideration passes from wife to her husband. So the wife (in case of Khula) or both husband and wife(in case of Mubarat) decides to separate on a no-blame basis. Resort to Khula and Mubarat are commonly seen in India as a mode for dissolution of marriage.

Divorce by Mubarat is very close to the provision of Divorce by Mutual Consent under:

1. Section 24, Special Marriage Act, 1954 
2. Section 13B, Hindu Marriage Act,1955.

Khula (At the Request of Wife)

Khula means to lay down. It also means that the husband lays down his right and authority over his wife. The wife proposes the husband for dissolution of marriage and she can do this by providing some kind of consideration to him. This may be by giving up her dower or something else. This totally depends on the wife that she provides the consideration or not. So this type of divorce starts from wife and husband can’t refuse it, but he can do negotiations related to the consideration.

1. In the case of Mst. Bilquis Ikram vs. Najmal Ikram [1], it was held that the wife has to satisfy the court that this marriage is forcing her into a hateful union after that she is entitled to Khula.

Essentials of a Valid Khula

1. Competence of the parties: The parties must be of sound mind and have attained the age of majority.
2. Free consent: The husband should accept the proposal made by the wife. There should be free consent on the husband’s behalf. The consent should not be influenced by force, fraud etc.
3. Formalities: An offer must be made by the wife to free the husband from the matrimonial tie and husband needs to accept the offer.
4. Consideration: The wife has to pay something to her husband to seek her release. This could be anything property, money etc.

As soon as the proposal is accepted by the husband the marriage is dissolved, even if the payment for consideration is on a later date.

Mubarat  (Mutual Release)

In this case, both husband and wife are willing to dissolve the marriage. So the offer of separation can come from either the husband or wife’s side. The essential features of divorce by Mubarat are as follows:

1. Both parties want to get rid of each other.
2. Both the parties are interested, so there is no need for consideration.

Legal Consequences of Khula and Mubarat

The effects are similar to that of divorce by any other method. The wife needs to undergo the period of iddat and husband has to maintain her during that period. After the completion of the period, marriage dissolves.

Difference Between Khula and Mubarat

The Indian Christian Marriage Act, 1872

The provision of the Indian Divorce Act,1869 is applied to the Christain marriage in India. Their marriage can be dissolved under Section X of this act. Under Section XA (as amended in 2001) both the parties can file for divorce by mutual consent.

The Parsi Marriage and Divorce Act 1936

Under Section 32B Divorce by Mutual Consent is defined. It provides that whether the marriage is solemnized before or after the commencement of the Parsi Marriage and Divorce (Amendment) Act, 1988 they can file for divorce by mutual consent. The suit has to be filed by both the parties and the parties must be living separately for a time span of one year and they are not able to live together and decided mutually to separate. The suit cannot be filed unless the period of one year has expired from the date of marriage. If the court is satisfied from the facts and circumstances of the case, the Court can grant the decree for divorce.

The Special Marriage Act, 1954

The divorce by mutual consent is filed under Section 28 of the Special Marriage Act, 1954 in case of court marriage. The parties have to together file a petition in the Court claiming that it is not possible for them to live together and because of this they are living separately and they both decided to file for a divorce by mutual consent.

Also, both the parties are provided with a time span of six months to think about their decision but if the parties are fixed on their decision than after the completion of six months and before ending eighteen months the party can move in the Court. After getting satisfied with the facts and circumstances of the case and when there is no ground available on which the petition can be rejected than the Court can grant a decree for divorce by mutual consent in favour of the parties.

Step by Step procedure to file for a Mutual Divorce

Step 1: Petition to File for a Divorce

Firstly, a joint petition has to be filed by both the parties for dissolution of marriage to seek a decree for divorce. The petition is to be presented to the Family Court duly signed by both the parties. The spouses have to present the petition on the grounds that, they both are living separately for a consecutive period of one year. It is hopeless for the parties to live together and they have co-jointly decided to divorce.

If anyone of the party is not available then any family member of such party can file the same on his/her behalf. After this, the ‘First Motion’ is established.

The court will give the date for pleading after a period of six months but the period will not be more than eighteen months. The time period after six months and before the completion of eighteen months is known as the cooling-off period. If the party doesn’t take action on a given date or if the parties pull back the case then the petition stands cancelled.

Paper Requirement

The papers that are required along with the petition are:

1. Birth details and family details.
2. Details of income.
3. Details of assets owned.
4. Income tax returns filed for a period of three years.

Jurisdiction of the Court

Place of a jurisdiction of the court can be the one where:

1. Couple last lived.
2. Their marriage was solemnized.
3. Wife is residing at present.

Step 2: Appearing Before Court and Inspection of the Petition

When the date is given by the Family Court, the parties have to be presented there with their respective lawyers who are representing them along with their documents. The court, in the first case, will tend to bring settlement between the parties so that they could drop the idea of getting a divorce. But if no parties agree then the court will move further with the petition for divorce.

Step 3: Passing Orders for a Recording of Statements on Oath

After the petition is examined by the court and the court is satisfied by it, then Court can order that the party’s statement to be recorded on oath.

Step 4: First Motion is Passed and a Period of 6 Months is Given Before the Second Motion

After the recording of the statement, the court passes an order on the first motion. Before the filing of the second motion, a time period of six months is granted to both the parties. Before the ending of eighteen months from the date of presentation of divorce petition in the Family Court, the second motion is filed.

Step 5: Second Motion and the Final Hearing of Petition

The parties appear and record statements before the Family Court, once they decided to go ahead with the proceedings and appears for the second motion. In the final hearing, the parties need to be present in the court. 

The Supreme Court can waive off the period of six months given to the party if the court is satisfied that the parties are settled on the issues related to alimony, custody of the child or if the court is of the view that the waiting period will only extend the adversity of the parties.

Step 6: Final Decree of Divorce

The court passes the decree of divorce when it comes to the conclusion that all the facts and statements present in the petition are true and there is no scope of reconciliation between the parties. The divorce becomes final once the decree of divorce is obtained by the court.

No waiting in mutual consent divorce

There has been a conflicting view of the courts whether they should wait for a period of six months or not. 

In the case of Grandhi Venkata Chitti Abbal [2] and Dinesh Kumar Shukla vs. Neeta [3], it was held that the waiting period of six months is compulsory otherwise it will hinder an important aspect of the Section 13B(2) of the Hindu Marriage Act,1955. The period can be reduced from six months on the discretion of the court.

There was another view that was provided in Hitesh Narendra Doshi vs. Jesal Hitesh Joshi’s case[4], it was held that the provision of six months was given for a specific purpose. The purpose behind this provision is that in the period of six months the parties can give time to each other, think about it once again, introspect about it and reconcile. 

Can mutual consent divorce be withdrawn?

If one party changes its mind and wants to save his/her marriage then that party can file an application before the Court where their proceeding for divorce is going on, stating that he/she wants to withdraw his/her consent for the divorce as he/she wants to give a second chance to their marriage. In case if both husband and wife agree to the withdrawal then both can withdraw the case mutually and the court can dismiss such petition.

What if one of the spouses withdraws the mutual consent divorce petition after filing in the Family Court? What can the other spouse do under such situation?

The court grants no divorce decree in case either of the spouses files an application before the court declaring that he/she doesn’t want to pursue Divorce by Mutual Consent. It can be done during those six months when the petition is pending in the court.

The court can grant a divorce decree and dissolve the marriage if it comes to know that the unilateral withdrawal of consent is not genuine. So the court will ignore the withdrawal of consent and will grant the decree.

If the money is accepted by wife at a later stage and she withdraws her consent and did not make any effort to reconcile in the last seven years then it cannot be called a genuine act.

There are several cases in which it is seen that the wife withdraws her consent by filing an application in the court in order to demand more permanent alimony than what was agreed upon. This is can be used as a tool for harassment.

Can the consent be withdrawn after filing for Divorce by Mutual Consent?

Cases under which the court has explained that the consent can be withdrawn after filing for divorce by mutual consent are:

1. Jayashree Ramesh Londhe vs. Ramesh Bhikaji [5]
2. Nachhattar Singh vs. Harcharan Kaur [6]
3. Sureshta Devi vs. Om Prakash [7]
4. Ashok Hurra vs. Rupa Zaveri [8]
5. Anil Kumar Jain vs. Maya Jain [9]

In Jayashree Ramesh Londhe vs. Ramesh Bhikaji, the court held that no party can withdraw from the joint petition of divorce unless and until there is a consent of both the parties for the respective withdrawal.

Also, in the case of Nachhattar Singh vs. Harcharan Kaur the court held that once the parties voluntarily file the petition for divorce by mutual consent and all the conditions mentioned under Section 13B(1) of the Hindu Marriage Act,1955 are fulfilled, then it is not open for the party to withdraw the consent.

In the case of Sureshta Devi vs. Om Prakash, the court held that unless and until the decree of divorce is passed the mutuality of consent should be there. The purpose of giving a time span of six months is that there can be chances if the parties want to change their mind. It is not necessary that both parties change their mind. It can be done by one party also.

Later in the case of Ashok Hurra vs. Rupa Zaveri, the court said that the mutual consent should continue till the passing of the decree of divorce, even if the consent is not withdrawn by one of the parties during the time span of eighteen months.

In Anil Kumar Jain vs. Maya Jain, the court explained that consent that is given by the parties at the stage of filing of the petition must continue till the second stage when petition comes up for order and decree for divorce is passed. The Supreme Court while exercising its extraordinary power under Article 142 of the Constitution can pass several orders to provide complete justice to the party.

The court would consider that the consent for divorce was continuing if the party who is withdrawing the consent does not communicate it to the court either himself or by his/her counsel.

A Division Bench of Rajasthan High Court held that at the time of second motion the withdrawal of consent to divorce by the party must be by a positive act.

Circumstances under which courts don’t agree with unilateral withdrawal by a Spouse

If there is no sufficient cause for withdrawal of the consent then the court considers that the withdrawal of consent is done under some pressure. When one party withdraws its consent it amounts to mental cruelty after mutually agreeing to divorce.

Whether mere silence at the second stage would amount to withdrawal?

In the case of Suman vs. Surendra Kumar [10], husband after filing the joint petition for divorce did not turn up at the second stage. The Family Court held that mere silence would not amount to a withdrawal of the consent as one party himself left the matter. So the conclusion has to be drawn in the favour of consent instead of the absence of consent.

Mutual divorce in India takes how long

The proceeding can go on till a minimum of three hearings or six months to one year depending from case to case. In some cases, if the matter is very serious than it can extend up to two years till ten years or more as the case may be.

Alimony in mutual divorce

The party can fix the maintenance or alimony through mutual consent if the parties are seeking divorce through mutual consent. According to the agreement a particular amount of money can be given either by the husband to wife or vice versa as the case may be. The amount to be paid is decided on several grounds such as respondents own income, the property he/she owns etc.

Can a working woman ask alimony in India

A working woman can ask for alimony in India. Mostly, the wife gets 20-35 percent of the husband’s net taxable income. A working woman can get maintenance if the court feels that she is not able to support her lifestyle which she enjoyed while she was married. The court can also grant maintenance in the case if she has dependants and she is not able to maintain them because her income is not that sufficient and also if she has some reasonable demands.

Divorce alimony calculator India

There is no fixed formula for calculating the alimony. The Court provides different alimony in different types of cases depending upon the facts and circumstances. The Court considers the status of the parties, their needs, husband’s capacity to pay, the number of people they have to support financially. 

The alimony is decided by taking into consideration the total monthly income that they take home without tax, their educational background, years since they were married and the number of children they have. The Supreme Court has set alimony benchmark to be 25 percent of ex-husband’s net salary. The Court also said that 25 percent of the husband’s net salary would be just and equitable for the wife so that she can live her life with dignity.

In the case of Gaurav Sondhi vs Diya Sondhi [10], the Court laid down the procedure that has to be followed by the Matrimonial Courts while granting interim maintenance/maintenance. Following is the procedure for granting maintenance

1. The husband has to pay to his wife before the 10th day of every month. The Court can direct husband to pay such on a later date after taking into consideration all the facts and circumstances of this case which makes it impossible for him to pay on such date. The Court can pass orders to direct the husband to pay such maintenance on a later date.
2. If the wife is having a bank account then the husband is directed to make such payment directly in her account before the 10th day of the month.
3. The payment can be made through counsel if there is any difficulty in making it to the wife or the child directly. The husband can also deposit a draft/ crossed cheques in the name of the wife in the Court registry.
4. In case there is a default in first payment than the Court can forgive it. But if there is a default in second payment without a proper reason then the court can add penalty up to 25 per cent of the amount of monthly maintenance.
5. If there is a default in third and fourth then the penalty may increase up to 50 per cent of the monthly amount of maintenance.
6. It is the duty of the court to ensure that the order of maintenance is meaningful and provide support to the wife.
7. A written statement should be filed within a reasonable time if the interim maintenance is being paid and litigation expenses have been provided to the wife.
8. The Court must take into consideration the nature of employment of the husband while applying penalty because of default in payment. Husbands having irregular employment have more chances to make default in payment.

One sided divorce in India

Divorce without Mutual Consent 

When one party to the divorce is not ready to seek divorce then the only option left to the parties is to fight for it in the Court. This is known as “Contested Divorce”. The Hindu Marriage Act,1955 provides numerous grounds for divorce.

Grounds for Divorce

The marriage which has been solemnized under Section 13 of The Hindu Marriage Act,1955 can seek divorce. The following grounds applies to both husband and wife:-

1. Adultery. 
2. Cruelty. 
3. Desertion.
4. Conversion.
5. Unsoundness of mind.
6. A Virulent or incurable form of Leprosy.
7. Venereal Disease in a communicable form.
8. Renunciation of world.
9. Presumption of Death.

Additional grounds for Divorce without Mutual Consent

Along with the above conditions, the parties can seek divorce on the following grounds:

1. After passing of the decree of judicial separation, cohabitation between the parties has not been resumed for a period of one year or more.
2. For a period of one year, from the passing of the decree of restitution of conjugal rights, there has been no restoration of conjugal rights.

Grounds on which only wife can seek divorce

Grounds that are provided only to the wife under The Hindu Marriage Act,1955 are:

1. Bigamy. 
2. Rape, Sodomy or Bestiality.
3. Non-resumption of Cohabitation after the decree of maintenance.
4. Repudiation of marriage.

Adultery as a ground for divorce- Section 13(1)(i)

Extramarital sex is known as “adultery”. Other than his/her spouse if a married person voluntarily indulges in sexual intercourse with a person of the opposite sex during the subsistence of his previous marriage then it is termed as adultery. These are sexual relations not allowed by marriage.

To prove adultery, circumstantial evidence is enough.

To establish adultery:

1.  There should be voluntarily sexual intercourse. Circumstances under which the action will not be considered as adultery are:
   1. An attempt to commit adultery.
   2. Mere love letters will not establish the guilt of extramarital sex.
   3. If there is an involuntary sexual act.
   4. If the act is committed under intoxication, by force or fraud.
   5. If a woman willingly commits an act considering another man to be her husband.
2. Sexual intercourse should take place after the solemnization of the marriage with the petitioner.
3. Even a single act of adultery will act as a ground for divorce.

When a child is born during the wedlock it is conclusive proof for the legitimacy of such child, unless it is proved that the child is born during the period when parties have no access to each other.

For example, the wife has been living separately since June 1973 and gave birth to a child in May 1974 was valid proof that the child was of a third person other than that of husband.

In Rajeev vs. Baburao [11], the court held that when a married person contracts a bigamous marriage after this act has been commenced then his wife can file a suit for divorce under this provision because the second marriage will be considered as void and any type of sexual intercourse with his second wife will amount to adultery.

In the case of Veena Kalia vs. Dr Jatindra Nath Kalia [12], the court held that the husband is guilty of adultery, cruelty and desertion because after getting married he went abroad leaving behind his wife and two daughters. There he married again and had three children from. For 23 years they lived apart. The court grant the decree of divorce in the favour of wife and husband was ordered to pay ten thousand rupees per month.

Cruelty as a ground for divorce- Section 13(1)(ia)

Cruelty includes both physical as well as mental cruelty. Before the Amendment Act, 1976, it was only a ground for judicial separation and not a ground for divorce. Earlier view on cruelty was that there should be actual physical harm and reasonable apprehension to establish cruelty but this view was changed. Now mental cruelty is also considered as a more serious injury. 

Cruelty can be established from facts and circumstances of the case. It mainly includes the behaviour of one spouse towards the other which causes suspicion in the mind of the party who is filing for divorce that it is unsafe to live with him/her.

Instances of Cruelty:

1. Physical Cruelty:
   1. Burning any limb of the body.
   2. Feeding something that is injurious to health.
   3. Making an attempt on life.
2. Mental Cruelty includes:
   1. False charge of unchastity.
   2. Forcing the wife to adopt the life of a prostitute.
   3. False charge of impotency.
   4. Threats to commit suicide.
   5. Keeping a concubine.
   6. Neglect of the wife when she is seriously ill.
   7. Repeated abuses
   8. Continuous taunts, curses.
   9. Injury caused to near and dear ones.

Cases wherein there was no cruelty

1. Petty quarrels.
2. Refusal of wife to resign the job.
3. Ordinary wear and tear of married life.
4. Consumption of alcohol by husband unaccompanied by abuses, insults and violence.

The court held the wife guilty of cruelty in the case of Dastane vs. Dastane [13]. The wife used to abuse parents and ancestors of the husband, she used to beat their child. She abuses her husband. Cursed the Dastane family, insults his husband in the presence of his students, tore the mangalsutra twice, rubbed chillies on the tongue of an infant child, defame him on a daily basis, used to nag him all night and don’t let him sleep, used to hide his shoes, keys and important documents, locked him outside the door on various occasions. The conduct of wife not only amount to physical cruelty but also amounts to mental cruelty.

In Bhagwat vs. Bhagwat [14], it was held that intention is not an essential element to establish cruelty. In this case, the husband strangulates wife’s younger brother on one and his son on another occasion. It was established that the husband in both cases acted due to a fit of insanity. So it was held that intention is not an essential element in order to establish cruelty and take divorce on this ground.

Desertion as a ground for divorce- Section 13(1)(ib)

When one spouse intentionally abandons another spouse without his/her consent or without any reasonable cause is called desertion. It is withdrawal from the matrimonial obligation.

Essential elements of desertion

Deserting spouse has to prove two elements:

1. The factum of separation.
2. There should be an intention on his/her behalf to permanently end the cohabitation. 

Deserted spouse is concerned with:

1. Absence of consent.
2. Absence of a reasonable cause.

The petitioner has to prove all these elements. All these elements must continue for the entire statutory period of not less than two years.

No Desertion without previous cohabitation

Cohabitation by the parties is an important element of a valid marriage. Desertion will not be established unless and until there is the previous cohabitation by the parties.

Types of Desertion

Desertion is of two types:

1. Actual desertion.
2. Constructive desertion.

In Actual Desertion, the deserting spouse gives up on the matrimonial home without proper excuse and justification. To prove Actual Desertion following facts must be established:

1. Parties must have parted.
2. There is an intention on the part of deserting spouse to desert the other spouse.
3. No consent is given by deserted spouse in this regard.
4. There should be no reasonable cause for desertion.
5. Desertion should continue for a period of two years as it is a continuing offence.

In Smt. Snehlata Seth vs. Kawal Krishna [15], the husband filed a petition for divorce on the ground of desertion as the wife left husbands matrimonial home. The Court rejected this petition saying that the wife left the matrimonial home only at the instance of her mother-in-law and she has a bona fide intention to return to her matrimonial home but the husband is not ready to take her back. So the Court rejected her petition on the ground that leaving matrimonial home like this will not amount to desertion.

In Lachman vs. Meena [16],  the wife was living with her husband’s joint family. After five years of marriage, she went to South East Asia in order to handle her parents business. During this period her husband wrote her to return back to her home but she used to reply that her health doesn’t permit her to return. There was no intention on her behalf to return as it can be judged through the letters. So it was held by the Supreme Court that there should be not only factum of separation but also an intention to separate in order to establish desertion as a ground for divorce.

The court in the case of P.V.Veeraraghavan vs. S.T.Parrvathy [17], AIR 1974 Ker 43 held that where the intention to separate is not proved than the decree of judicial review will not be granted. In this case, the husband has insufficient means to afford a new matrimonial home. So he directed his wife to leave with him in his ancestral home with his parents and brothers but the wife did not agree to it. The husband filed a petition for judicial separation on this ground on which the court held that there was no intention to separate from wife’s side so no decree would be granted.

Constructive Desertion

It can be proved while the spouses are living under the same roof. It may not be withdrawal from a place but a state of things. It includes:

1. Intentionally neglecting the other spouse.
2. Ignoring opportunities for copulation.
3. Not performing his/her marital duties.

In the case of Disnhaw vs. Dinshaw [18], AIR 1970 Bom 341 the Court held that constructive desertion is a matter of inference that is to be drawn from the facts and circumstances of the case. If due to husbands treatment wife leaves then it is clear that the wife left due to husbands intended action. He wants her to leave. So it depends on the motive of the deserting spouse and its effect on the deserted spouse. If the deserting spouse has malice towards the deserted spouse and due to his actions and treatment the deserting spouse finds it difficult to live with the other than this can be the case of cruelty. But if the withdrawal from the society is with a valid reason than this withdrawal will not amount to cruelty.

The neglect should be such that it is clear that he/she has decided to break the wedlock.

The Supreme Court has dismissed the appeal of wife in the case of Savitri Pandey vs. Prem Chandra Pandey [19] because she charged her husband with the offence of desertion and in her own pleadings she mentioned that the parties have never consummated. The wife lived with her husband for a few weeks and put a fake charge on her husband that he tortures her. She started demanding all household articles as well as money and also put a false charge of adultery on her husband. The court held that consummation is a very essential aspect of desertion and according to her own pleadings the parties never consummated. So, the appeal was dismissed.

In Bipinchandra vs. Prahbavati [20] the court held that the guilty party can bring an end to desertion through the resumption of cohabitation, resumption to marital intercourse and through the offer of reconciliation.

Conversion as a ground for divorce- Section 13(1)(ii)

If a Hindu cease or ceases to be Hindu by converting himself into another religion than the other party who is still a Hindu is entitled with the right to seek divorce under this section. Also, if children are born to him/her after the conversion gets disqualified from inheriting the property of any of their Hindu relatives.

A petitioner who seeks divorce on this ground has to prove the following:

1. The other spouse discontinued being a Hindu.
2. He has done so by accepting another religion.

This ground is not available to the converting spouse because then the spouse will take advantage of his own wrong. But if both the spouses convert into another religion then no one can seek the remedy for dissolution of marriage.

The court in the case of Sarla Mudgal vs. Union of India [21] and Lily Thomas vs. Union of India [22], held that simply because one party has changed its religion than a marriage which is solemnized according to one personal law will not dissolve the marriage solemnized under another personal law. Marrying another woman while the first wife still exists is an offence under Section 494, IPC. Justice Saghir Ahmad explained that where a person adopts another religion just because there is a plurality of marriage allowed and he gives up on his first marriage then he cannot be allowed to take advantage of his wrong by exploiting the religion, as religion is not something that should be exploited.

Mental Disorder: Unsoundness of Mind- Section 13(1)(iii)

Before 1976, unsoundness of mind for one year was a ground for judicial separation and if it continues till three years then it will be a ground for divorce. But after the 1976 Amendment, no period is prescribed and moreover, it includes all types of mental cases, sub-normality and abnormality.

The petitioner has to prove that:

1. Respondent has been of unsound mind.
2. It is incurable.
3. It is of such kind that the petitioner is not expected to live with the respondent.

The Amendment Clause after 1976 also includes the following things under mental disorder:

1. Occasional fits of schizophrenia.
2. Epilepsy. 
3. Mental retardation.
4. Any Other disability of mind

Virulent and Incurable form of Leprosy- Section 13(1)(iv)

There is no period prescribed for filing a petition under this clause but prior to the 1976 Amendment, it was one year for judicial separation and three years for divorce. The requirements are:

1. Respondent is suffering from leprosy which is an infectious disease resulting in disfigurement causing permanent disability.
2. Leprosy must be both Virulent and Incurable. Ordinary leprosy is not a ground for divorce. Virulent means highly poisonous, venomous.

Venereal Disease in a communicable form- Section 13(1)(v)

The Communicable disease passes from one person to another, by the touch of that person or using his/her objects etc. The petitioner must give medical evidence in order to seek divorce on this ground. After the 1976 Amendment, there is no period prescribed for this.

Renunciation of world- Section 13(1)(vi)

By entering any religious order and renouncing from worldly affairs it amounts to “civil death”. To seek divorce on this ground the petitioner has to establish that:

1. Respondent has entered any religious order.
2. He/she has renounced the world.

A Spouse can only sue another spouse unless and until the second condition is also fulfilled. A person who renounces the world has no interest in society. It can be both Tyag and Sanyasa. Thus, mere tyag will not be considered under this ground it has to be coupled with sanyas.

Presumption of death- Section- 13(1)(vii)

If a person is not heard of being alive from his/her near or dear ones or his/her relatives for a period of seven years then he/she seemed to be legally dead. But in case he/she was married before, then their spouse can seek divorce on such a ground. In this case, no alternate decree of judicial separation is passed.

In the case of Vinita Saxena v. Pankaj Pandit [23], the lady got married at the age of 24 years. The marriage lasted for three to four months and she was forced to leave her matrimonial home. Marriage was not consummated and the respondent was also not in a position to fulfil his matrimonial obligations too. They lived separately since 1993. They have never seen each other in thirteen years and there was no chance of reconciliation. The court decided in favour of the wife and granted the divorce.

Irretrievable breakdown grounds- Section 13(1A)

Non-Resumption of cohabitation after the decree of Judicial separation or Restitution of Conjugal Rights

According to Section 13(1A)(i) of the Hindu Marriage Act,1955 after passing the decree of judicial separation, if the parties don’t resume cohabitation for a time span of one year or more than this can act as a ground for divorce for another party. Mere going together to some places do not amount to cohabitation. If the wife wants to resume the cohabitation but the husband dont want it or vice versa then this can also act as a ground for divorce.

Also, if there is no restoration of conjugal rights for a continuous period of one year or more after passing of such decree then this can act as a valid ground for divorce under Section 13(1A)(ii) of the Hindu Marriage Act,1955. Restitution of conjugal rights means that the parties must return to cohabitation.

Wife’s special grounds of divorce- Section 13(2)

Bigamy- Section 13(2)(i)

If the husband marries again while his first marriage has not dissolved then he will be guilty of bigamy and wife can seek divorce on this ground. The necessary ingredients of this section are:

1. The husband should marry another woman.
2. Husband married again while his first wife is alive.

If a person has two wives then the co-wives can seek divorce on the following grounds:

1. Before the commencement of this act both the wives are married to him.
2. Petition for divorce is filed when both the wives are alive.
3. Both marriages must legally exist.

This section is for women, it provides support to the women as there are several cases in which the husband converts themselves into Islam so that they can get married to more than one wife.

Rape, Sodomy or Bestiality- Section-13(2)(ii)

All these three matrimonial offences are also crimes under IPC and punishment is provided for them. Sexual deviancy of the husband has been made a ground for divorce. If the wife proves that since the solemnization of marriage husband is guilty of rape, sodomy or bestiality she can be granted with the decree of divorce.

1. Rape– it is sexual intercourse by a man with a woman against her will. A wife can file for divorce on the ground that the husband has raped her. For this, she must be below the age of fifteen years because sexual intercourse with a girl below the age of fifteen years is rape.
2. Sodomy– Anal intercourse by a man with his wife or with another woman or with a man is termed as sodomy. Here, the consent of the victim and his/her age have no relevance in order to establish sodomy.
3. Bestiality– It means sex with an animal and it is covered by unnatural offences under Section 377, IPC.

Non-Cohabitation after maintenance order- Section-13(2)(iii)

When the court has passed the order that the husband has to provide maintenance to his wife, and if the husband did not obey the order of the court and cohabitation has not resumed between them for a duration of one year or upwards then, the court grant the decree of divorce in favour of the wife on this ground.

When a decree is passed under Section 18 of the Hindu Adoption and Maintenance Act,1956 and under Section 125 of the Criminal Procedure Code, 1973 then it becomes obligatory for the husband to pay maintenance to his wife and also to resume cohabitation within a time period of one year. If the husband fails to discharge his duty then, the wife can seek a divorce in the court. If the husband offers cohabitation and wife doesn’t respond to it she is within her prescribed rights.

Repudiation of marriage- Section 13(2)(iv)

This clause is for the girls who are married and have not attained the age of fifteen years. Consummation of marriage is irrelevant here. The wife can get a divorce under subsequent conditions:

1. She must be below the age of fifteen years at the time of marriage.
2. Marriage is repudiated by her before attaining the age of eighteen years and after attaining the age of fifteen years.

The wife has to prove repudiation and there is no such prescribed procedure for this. There was no such right available prior to the Amendment of 1976, the Amendment Act,1976 added this clause.

That is all about Divorce by Mutual Consent. So far it has been seen that divorce by mutual consent is a better way rather than defaming each other through a court proceeding in an uncultured manner. In fact, in the case of divorce by mutual consent, the divorce can be granted as soon as possible by taking into consideration all the relevant facts and circumstances of the case rather than getting a divorce on other grounds which will definitely involve more time, money and efforts of the parties. 

References

1. (1959) 2 WP 321
2. AIR 1999 AP 91
3. AIR 2005 MP 106
4. 2003 (3) ALD 81
5. AIR 1984 BOM 302
6. AIR 1986 P H 201
7. 1992 AIR 1904, 1991 SCR (1) 274
8. 10 March 1997
9. 1 September 2009
10. AIR 2003 Raj 155
11. 3 May, 2005
12. 1981 SCC OnLine Del 364 
13. 1975 AIR 1534 
14. AIR 1976 Bom 80
15. AIR 1986 Del 162
16. 1964 SC 40
17. AIR 1974 Ker 43
18. AIR 1970 Bom 341
19. 8 January 2000
20. 1957 AIR 176
21. 1995 AIR 1531, 1995 SCC (3) 635
22. 2000 (2) ALD Cri 686
23. (2006) 3 SCC 778

The post Divorce by Mutual Consent appeared first on iPleaders.

 This article is written by Ayushma Sharma of Faculty of Law, Aligarh Muslim University where she has discussed the Bhopal Gas Tragedy Case.

Introduction 

The night of 2-3 December 1984, was the most unfortunate night for the Bhopal, in fact not only for Bhopal but for the whole world. Thousands of people lost their lives that night and many are suffering the consequences of the tragedy even now. The incident was caused because of the leakage of Methyl Isocyanate (MiC) gas from the Union Carbide India Ltd (UCIL) plant.

Bhopal Gas Tragedy Case Study

Background 

The Union Carbide Corporation, an American enterprise established a pesticide plant in India because of its central location. The plant was supposed to produce Sevin, a pesticide. Union Carbide and the Indian Government had a deal, and under this idea, the Union Carbide had a 50.9% share and the Indian Investors had a 40.1% share. The plant was named as The Union Carbide India Limited (UCIL).

UCIL started its production of pesticide in 1979. While this pesticide was produced, a toxic liquid was also produced i.e., Methyl Isocyanate (MIC). Since MIC is a very toxic chemical it required great maintenance. 

Around 1:00 a.m on 4th December 1984, when the MIC gas started swallowing up the whole of Bhopal people who were sleeping peacefully started feeling the change in the air. They ran for their lives but couldn’t escape their death. Some who were able to save their lives weren’t able to save themselves from the coming disabilities. All this happened because of leakage of the MIC gas from the tank E106.

Earlier, too, complaints were being made about the maintainability of the plant, of how MIC was leaking in small amounts. The previous incidents of leakage had also caused the death of some people and left others severely injured. But, the authorities paid no attention to it. The machines were worn out but no replacement was there.

•  The Gas Disaster 

Around midnight on 3-4 December 1984, the MIC gas got leaked from the plant and got mixed with the fresh air in Bhopal. Suddenly, people started feeling uneasy, started vomiting, were having trouble while breathing, people started dying within a few minutes of inhaling the toxic gas. It was not only the human beings that suffered but animals, too, suffered and lost their lives.

People, in large numbers, were rushed to the hospital but at that time no doctor knew about the actual cause of death. No one knew about the leakage of the MIC. They just had a hunch about some leakage but exactly didn’t know about the leakage of MIC gas. Since doctors couldn’t operate properly without knowing the exact cause of the accident, so many people lost their lives.

It was reported that nearly 3000 people lost their lives and more than 6 lacs were severely injured. The survivors survived with permanent respiratory problems, and other complications. Children who weren’t even born at that time were born with some health issues. 

•  The International Medical Commission

After the tragedy took place there was no proper health aid provided to the victims. The company was involved in lawsuits and was on the verge of closing down its business. On the other hand, the Indian Government had to face the wrath of the families of the victims and the other people all over India on a lack of carrying out an investigation and providing medical aid to the sufferers. 

For the medical personnel to provide correct medical treatment to the victims they had to know the exact cause of the tragedy. So that based on the cause they could start their operation. A connection had to be established between the cause of the accident and the health attributes caused by the accident.

In 1992, Permanent Peoples’ Tribunal suggested the formation of an international commission to provide better medical treatment to the victims of the Bhopal tragedy. Later on, in 1993 Bhopal Group for Information and Action laid down a proposal for the same.

Finally, in the year 1993 International Medical Commission on Bhopal (IMCB) was organized to provide medical assistance to the survivors of the Bhopal tragedy of 1984. IMCB was a constitution of 15 professionals from 12 countries having expertise in the field of:

• Environmental health
• Respiratory medicine
• Toxicology
• Immunology

IMCB had co-chairpersons and they were, Dr. Rosalie Bertell and Gianni Tognoni. The main aim of the International Medical Commission on Bhopal was to provide some relief to the victims and to suggest some ways to prevent such disasters in the future. 

The work was divided into 8 areas, and they are:

• Clinical
• Family Life
• Epidemiology
• Medical care 
• Drug Therapies 
• Accident Analysis
• Claims
• Review of published literature

A plan was laid out for investigation to know the actual cause of the exposure. This plan has three phases. 

First Phase – In this phase, the symptom report was analyzed and distance was used as a substitute for exposure. It stated that respiratory and neurologic problems were the aftermath health effects of the exposure.

Second Phase – Lung function and respiratory organs were assessed. According to the report, there were excessive respiratory issues and the functioning capability of the lungs was reduced with each passing minute. 

It was noticed that to know the exact level of risk factors involved it was necessary to analyze the exposure accurately. Also, to provide long-term care and medical aid it was mandatory for them to know exactly what they were dealing with.

Third Phase – This was the last phase of the process. In this phase, the victims were assessed individually based on exposure time, location and distance. Finally, the reports were compared to the findings from the distance surrogate to determine whether their association is better than that of distance alone. 

Immediate effects of the Bhopal Gas Tragedy

• The leak and its effects

Methyl Isocyanate (MIC) :

• The colorless liquid used for the creation of pesticides.
• Is highly toxic.
• Since it is extremely reactive to water, it requires good maintenance.
• A small amount of water is sufficient to increase pressure for converting the liquid into a toxic gas.

The UCIL had to store three tanks of MIC and its temperature was to be maintained below zero degrees celsius. Also, it was to be kept under pressure with the help of inert nitrogen. But, before the few days of the accident the tank, E106, in which the MIC was kept couldn’t hold the pressure any longer resulting in stopping of production for some time. 

The tank even after being worn out couldn’t stop the production for a much longer time. The production process resumed after some time. But, on the night of 2-3 December 1984, because of a lack of maintainability, the water broke out from the connecting pipe and started getting mixed with the MIC liquid. This resulted in a strong heating reaction because of which pressure at a splitting pace was created and the MIC gas got released. 

People who were leaving nearby started getting affected by the harmful gas. They started having a breathing problem, irritation in eyes, chemical burns on the skin, contraction of lungs. They were then taken to the hospital but without the main reason for the accident, the doctors couldn’t operate correctly. 

• Cause of Leakage

Though the main reason for the tragedy was the mixing of water with the Methyl Isocyanate because of leaks in the connecting pipes yet it was not the only reason that contributed towards the happening of the tragedy. There are many other reasons which contributed to this unfortunate event. All these small reasons are because of the lack of proper maintenance.

Following are the reasons that, too, have contributed to the Bhopal tragedy:

• An inspection team came from Danbury, the United States to the Bhopal plant and found 61 safety problems. Out of these 61 problems 31 were major.

• Main refrigeration and cooling system were closed down before 150 days of the accident
• To lower the cost number of workers working were reduced.
• Also, the specialized training was not given to the unskilled workers so that they could at least have an idea about the consequences of their actions.
• As already mentioned, before this major tragedy there had already been minor leakages which cost the life of one worker and others were injured.
• No supervisor was there for his night shift.
• The pressure control valve of the tank E610 had not been working properly for over a month.
• Negligence on the part of the maintenance authorities.
• There was no backup plan in case of emergencies.

Another important thing to notice is that if the fire or the rescue squad had an idea of how to prevent the gas from spreading, or if there was any antidote chemical that could have been used to bring down the effects of MIC gas then, maybe some lives could have been saved.

The root cause was the lack of management on the part of the authorities. Also, it’s been said that the company had not informed all the concerned authorities about the emission of MIC gas. Had some authorities known about the gas maybe they could have prepared some backup strategies in case of a crisis. 

• Toxicology of MIC

Methyl Isocyanate is highly toxic. The American Conference of Government Industrial Hygienists stated that the level up to which a worker could be exposed to MIC without any harmful effects is 0.02ppm. As soon as the level is 0.4ppm it is toxic by inhalation, or by ingestion. At 5ppm, most people cannot detect it but because of symptoms, they get a warning. 

The symptoms of exposure includes:

• Chest pain
• Irritation in the eyes
• Breathing problem
• Irritation in the nose and throat
• Burning of skin 
• Coughing

When exposure level is above 21ppm it can result in:

• Death
• Bronchial Pneumonia – A condition that causes inflammation of the lungs
• Lung edema – A condition caused by the accumulation of excessive fluid in the lungs, making it difficult to breathe
• Emphysema – It means damage to the air sacs in the lungs resulting in shortness of breath

Therefore, storing methyl isocyanate requires proper care and caution, and especially when comes to water extra precautions must be taken. Methyl Isocyanate is very sensitive to water. It can be stored in glass or stainless steel, and temperature should be below 40-degree celsius or 104-degree Fahrenheit. 

• Attributed diseases to the gas exposure

The attributed diseases to gas exposure are as follows:

• Ophthalmic Problems – The MIC gas irritated the eyes of the people. MIC gas caused burning, watering, and photophobia, redness of the eye, swelling of the eyelid.

• Respiratory and Pulmonary Problems – Inhalation of MIC gas resulted in shortness of breath, suffocation and chest pain. When examined it was found that some victims had suffered necrotizing lesions in their respiratory organs
• Reproductivity Toxicity – Gas leak resulted in high-risk factors to the fetus and it not only the gas leak that increased risk but the factors like stress and ingestion of drugs by the mothers.
• Genotoxicity – The MIC gas had affected the genetic information of the victims within their cells which had increased their possibility of having cancer. 
• Neuromuscular Toxicity – It was found that the survivors of the accident had neuromuscular symptoms like numbness, pain, aches, and sensation of needles
• The victims suffered many other health problems like carcinogenicity, immunotoxicity, psychological and neurobehavioral toxicity.

Litigation

After the accident, many cases were filed on behalf of the victims since there was a problem in claiming compensation, and many people, especially the ones having low financial status, couldn’t afford to fight the case for a long time. These cases were filed against UCC in Bhopal as well as in the USA. An effort was also made to settle the matter outside of the court but it wasn’t successful. 

Then, after some time passed, the Indian Parliament passed The Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985. According to Section 3 of the Act, the government of India had the power to file cases on behalf of every citizen who was entitled to claim the compensation. The government by Section 9 of the Act introduced “The Bhopal Gas Leak Disaster (Registration And Processing of Claims) Scheme, 1985”. 

The Indian Government filed a lawsuit in the United States District Court of NewYork against UCC. But, the UCC pleaded that filing the lawsuit in an American Court was not convenient. They pleaded on the grounds of forum inconvenient (it means that the Court can refuse to take jurisdiction when the parties have more convenient forums to go to). UCC said that since the accident took place in Bhopal and all the evidence was there only so it was more convenient to try in Indian Courts. 

So, Keenon J. accepted the plea of UCC and a new case was filed in the District Court of Bhopal. The District Court ordered UCC to pay a sum of Rs 350 crore to the victims. Next, UCC filed an appeal in the Madhya Pradesh High Court against the judgment of Bhopal District Court. This resulted in a decrease in the “interim compensation” from Rs 350 crore to Rs 250 crore. Simultaneously UCC tried to settle the matter directly with the gas victims outside the court. But, M.W. Deo J. of Bhopal District Court put an interim order on UCC to not to make any settlement with any victim until further orders of the Court. 

Finally, after the propagation of the rule of Absolute liability, the Court held UCC liable for the Bhopal tragedy. Though people had their doubts that the Indian Judiciary won’t be able to handle the situation. They thought that the wrongdoers would escape from their liability under the rule of Strict liability but it didn’t happen. The Indian Judiciary brought fair justice to the victims. 

On 14th and 15th February 1989, the Supreme Court in Union Carbide Corporation v. Union of India [1] ordered UCC to pay a sum of $470 million (Rs 750 crores) to the victims. 

Principle of Absolute Liability 

This liability is also known as “No-Fault Liability”.

Absolute liability is a liability where the accused is held liable but without any exception of getting excused from the liability. Normally, a person can be held liable only when he had mens rea (guilty mind) but in the case of absolute liability, a person can be held liable even if he had no intention of committing the offense. 

The principle of absolute liability is similar to strict liability. In the case of strict liability, a person keeps something dangerous with him, and he knows that even the slightest mistake would cause a release of that thing resulting in the death of human beings. So, even if he took proper care and caution but still the thing escaped resulting in the death of a man, he can be held liable under strict liability.

The principle of strict and absolute liability differ only at one point. While on one hand under strict liability, a person is having options to escape the lability so arisen but, on the other hand under absolute liability a person has no such options available. 

• Rylands v. Fletcher

This doctrine of Strict liability was laid down in Rylands v. Fletcher [2] by Justice Blackburn.

Facts:

• The defendant paid the contractor to build a reservoir on his land.
• The contractors while doing their work discovered old coal shafts in the ground.
• They decided not to do anything and carried on with their work.
• The defendant didn’t know anything about this.
• Later on, when the reservoir was filled with water the shaft broke and the water started bursting out of the reservoir.
• As a result, the neighbor’s mine was flooded.
• The respondent (neighbor) then, filed a suit against the defendant and claimed damages.

Judgment:

The House of Lords propounded the Doctrine of Strict Liability in this case stating that even if the accused did not have any intention of causing any harm to others yet he would be held liable for the same. This was so because of his mistake harm was caused. 

Following are the words used by Blackburn J. while propounding the rule: [3]

“We think that the rule of law is, that the person who for his own purposes brings on his lands and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff’s default; or perhaps that the escape was the consequence of vis major, or the act of God: but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient.” 

Another important feature of Strict liability is that for the applicability of this rule the use of land should be non-natural. 

• M.C. Mehta v. Union of India

The Doctrine of Absolute Liability was introduced in this case [4] by P.N. Bhagwati J.

Facts:

• The defendant, Shri Ram Food and Fertilizer Industry belonging to Delhi Cloth Mills Ltd. produced dangerous chemicals.
• M.C. Mehta had already filed cases against this industry demanding closure of units of this industry.
• On December 4 the oleum gas leaked from one of the units of the industry.
• Many people lost their lives in this accident including an advocate practicing in the Tis Hazari Court.
• It is believed that the leakage was caused because of mechanical and human errors.
• not even two days after the accident there was another minor leakage of oleum gas from the connecting pipes.
• District Court ordered Shriram industry to stop their production of lethal gases and chemicals.
• M.C. Mehta filed a Public Interest Litigation (PIL) under Article 32 of the Indian Constitution. 

Judgment:

It was the second case of leakage of toxic gas after the leakage of MIC gas from the Union Carbide plant in Bhopal within one year. The Supreme Court knew that if they applied the Doctrine of Strict liability which was laid down in Rylands v. Fletcher case then the industries involved in hazardous work will escape liability by using an exception to the rule of the strict article. 

Therefore, the Apex Court decided to introduce a new rule which will align the Indian circumstances. It laid down the rule of Absolute liability which did not have exceptions available to a person under strict liability. The court held the defendant was liable under the rule of absolute liability. 

The Court held that the petitioners could claim compensation for the same on behalf of the victims after filing an action in an appropriate court. 

The Court, while justifying the rule gave the following two reasons: 

1. An industry knows all about its operations that are being carried out while producing commodities. It is, therefore, the industry’s responsibility to have resources and safeguards in case of any danger.
2. When an industry is involved in a dangerous or hazardous activity for profit then it owes an obligation towards the public for their safeguard. Therefore, in case of an accident, it has to compensate for the sufferers. 

Bhagwati C.J. while laying down the new principal gave the following statement: [5]

“We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous activity which it has undertaken. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part.” 

The Court gave the following statement as well: [6]

“Where an enterprise is engaged in hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting, for example, in the escape of toxic gas, the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-a-vis the tortious principle of strict liability under the rule of Rylands v. Fletcher.”

Enactment of Acts 

Even after so many years of the accident people living in Bhopal, especially in the places near the plant, are still being affected till date. They haven’t escaped from the consequences of the accident yet. Even now, children who are being born have some kind of problem which is about the accident.

The Government to prevent future environmental hazards caused because of the actions of human beings has decided to implement laws that would protect the environment. Laws that would ensure that in case of disputes some authority is there for a speedy trial.

• The Environment Protection Act, 1986

The Environment Protection Act was enacted in the year 1986 after 2 years of the Bhopal tragedy. The main purpose of the Act is to safeguard the environment and prevent future hazards. It is said to be implemented based on the United Nations Conference on the Human Environment held in Stockholm in June 1972.

The Act contains five chapters and twenty-six sections. This Act is concerned with the protection of the environment, human beings, plants and animals, and prevention of any kind of future hazard like Bhopal tragedy. 

This Act is also known as an Umbrella Act because it makes the Union and the State work in coordination for the various other laws like the Water Act and the Air Act.

• The National Green Tribunal Act, 2010

This Act provides speedy trial to the cases related to matters concerned with environmental protection. In case of any violation of environmental law, or case human beings require protection against the use of hazardous chemicals this Act is applicable. The main purpose of The National Green Tribunal Act is to provide speedy disposal of cases.

This Act has five chapters and thirty-eight sections. This owns its established to Article 21 of the Indian Constitution which provides for “Right to a healthy environment”.

• The Factories Act

The Factories Act, 1948 was enacted before the Bhopal accident. But, the provisions of this Act are in favor of the workers involved in factories, industries, and mines. The main purpose of this Act is to ensure the welfare of the workers, to improve the working conditions for the workers and also, it provides special provisions for women and children involved in the factories.

• The Public Liability Insurance Act, 1991

According to the Public Liability Insurance Act,1991, a person can claim relief in case of an accident caused because of keeping any hazardous chemicals. The Act provides public liability insurance. This Act is based on “No-Fault Liability”. This means that it is the responsibility of the person to compensate for another irrespective of the fact that he was careful enough to avoid any kind of accident.

Widened scope of Article 21 of the Constitution of India 

Article 21 of the Indian Constitution states that every person has a right to life and personal liberty. Unless a court order, a person cannot be deprived of this right. This Article is considered as the “mini-constitution”. It includes many other rights within itself like, Right to Privacy, Right to Shelter, Right to Information. The Apex Court of India has widened the scope of Article 21 from time to time and by making ‘Right to a clean and healthy environment’ a fundamental right it added more to its dimensions. 

The Supreme Court in Subhash Kumar v. State of Bihar [7] held that the citizens of India have a fundamental right of living in a free pollution environment for their full enjoyment of life. This even compelled the local authorities to take measures to decrease the rate of pollution in their areas.

In Rural Litigation and Environment Kendra, Dehradun v. State of Uttar Pradesh [8] the Supreme Court admitted a Public Interest Litigation under Article 32 of the Indian Constitution and ordered some limestone quarries to close down their quarries. It was held that only those quarries which were fit for operating their business and caused less adverse effect could carry out their work. The fitness of a quarry was decided after an inspection. 

Initially, there was no provision regarding the protection of the environment but with time, the Supreme Court realized its importance and incorporated it as a fundamental right. There are other provisions, too, in the Indian Constitution that direct the State and the citizens to protect the environment. These provisions include Article 39(b), 47, 48, 49, 48 A and 51 A (g). 

Amendment in Penalty 

According to Section 15(1) of the Environment Protection Act, 1986 if a person violates any provision of the Environment Protection Act then he shall be punished with imprisonment for a term which may extend to 5 years, or with fine which may extend to one lakh rupees, or with both. And, in case the offender continues to violate the Act then he has to pay an additional fine of Rs 5000 every day from the date of conviction till he stops violating it.

Section 15(2) states that in case the violation continues beyond a period of one year then he can be punished with imprisonment for a term which may extend to 7 years.

Introducing New Legislative Rules 

• Hazardous Rules, 2008

The Hazardous Wastes (Management & Handling) Rules, 1989 was enacted under the Environment Protection Act, 1986. Later on, it was amended in 2000 and then in 2003. 

In 2008, the Hazardous Wastes (Management, Handling & Transboundary Movement) Rules, 2008 superseded the Hazardous Wastes, 1989 and its amendments.

The Hazardous Wastes (Management, Handling & Transboundary Movement) Rules, 2008 is concerned with the proper management in handling storing, collecting, and disposing of the ‘hazardous wastes’. The Schedule 1, 2 and 3 of the Rule divides hazardous wastes into different categories. The definition of ‘hazardous wastes’ under this Rule does not include exhaust gases, biomedical wastes, wastewater, etc.

• Chemical Accident Rules 1996

The production process of different commodities involves dealing with many dangerous chemicals. The use of these chemicals, if proper care and caution is not taken, involves a high-level risk in case of any mishap. Therefore, the government of India introduced Chemical Accidents (Emergency Planning, Preparedness, and Response) Rules, 1996, so that in case of any emergency people would know exactly what to do.

Under these rules a Central Crisis Group, State Crisis Group and a District Crisis Group were to be formed, and these groups would deal with chemical mishaps and provide guidance in dealing with the issue. A list of hazardous chemicals has also been mentioned in the Chemical Accident Rules, 1996.

Conclusion 

No matter how many years have passed, the aftermath of the Bhopal tragedy can still be seen today. Even after holding UCC liable the loss of those people who lost their lives and the ones who are still suffering cannot be measured. Though it is important for the government to promote globalization it should ensure that there are no risks involved. Also, it is the need of the hour that the laws made are implemented in the best way possible because nothing is more important than the lives of the people.

References 

1. A.I.R. 1990 S.C. 273.
2. (1868) LR 3 HL 330.
3. (1868) LR 3 HL 330.
4. A.I.R. 1987 S.C. 1086.
5. A.I.R. 1987 S.C. 1086.
6. A.I.R. 1987 S.C. 1086.
7. (1991) 1 SCC 598.
8. 1985 A.I.R. 652, 1985 SCR (3) 169.

The post Bhopal Gas Tragedy Case Study appeared first on iPleaders.

This article is written by Shivani Verma, a student of Guru Gobind Singh Indraprastha University, New Delhi. In this article, she has discussed various important aspects related to Fundamental Duties.

Fundamental duties of India

As an Indian citizen, certain rights and duties are provided to us. The duty of every citizen is to abide by the laws and perform his/her legal obligations. A person should always be aware of his/her fundamental duties. 11 fundamental duties are laid down by the Indian Constitution.

Origin and scope of fundamental duties 

Origin 

On the recommendations of the Swaran Singh Committee, the fundamental duties were added by the 42nd Amendment, 1976 in our Indian Constitution. The fundamental duties were originally 10 in numbers but in 2002, the 86th Amendment increased its number to 11. The 11th duty made it compulsory for each and every parent and guardian to provide the educational opportunities to their child who is more than 6 years but less than 14 years of age. These duties are borrowed from the Constitution of Japan.

Fundamental duties part 1 from Diganth Raj Sehgal

Scope 

Neither there is a direct provision in the Constitution for the enforcement of these duties nor there is hardly any legal sanction in order to prevent violation of these duties. These duties are obligatory in nature. The following facts provide for the importance of fundamental duties:

1. A person should respect the fundamental rights and duties equally because in any case, if the court comes to know that a person who wants his/her rights to be enforced is careless about his/her duties then the court will not be lenient in his/her case.
2. Any ambiguous statute can be interpreted with the help of fundamental duties. 
3. The court can consider the law reasonable if it gives effect to any of the fundamental duties. In this way, the court can save such law from being declared as unconstitutional.

Fundamental duties taken from

The fundamental duties are taken from the USSR (Russia) constitution. The addition of fundamental duties in our constitution have brought our constitution aligned with the Article 29(1) of the Universal Declaration of Human Rights and with various provisions of the modern constitution of other countries.

11 Fundamental duties

Only one Article that is Article -51A is there in Part-IV-A of the Indian Constitution that deals with fundamental duties. It was added to the Constitution by the 42nd Amendment Act, 1976. For the first time, a code of 11 fundamental duties was provided to the citizens of India. Article 51-A states that it is the duty of every citizen of India:

1. To respect the Constitution, it’s ideals and institutions, the National Flag and National Anthem–Ideals like liberty, justice, equality, fraternity and institution like executive, the legislature, and the judiciary must be respected by all the citizens of the country. No person should undergo any such practice which violates the spirit of the Constitution and should maintain its dignity. If any person shows disrespect to the National Anthem or to the National Flag then it will be a failure as a citizen of a sovereign nation.
2. The noble ideas that inspire the national struggle to gain independence, one should cherish them– Every citizen must admire and appreciate the noble ideas that inspired the struggle of independence. These ideas focus on making a just society, a united nation with freedom, equality, non-violence, brotherhood, and world peace. A citizen must remain committed to these ideas.
3. One should protect and uphold the sovereignty, unity and integrity of India– This is one of the basic duties that every citizen of India should perform. A united nation is not possible if the unity of the country is jeopardized. Sovereignty lies with the people. Article 19(2) of the Indian Constitution put reasonable restrictions on the freedom of speech and expression in order to safeguard the interest and integrity of India. 
4. One should respect the country and render national service when called upon–Every citizen should defend the country against the enemies. All the citizens apart from those who belong to the army, navy etc should be ready to take up arms in order to protect themselves and the nation whenever the need arises.
5. One should promote harmony as well as the spirit of common brotherhood amongst the citizens of India, transcending religious, linguistic, regional or sectional diversities and to renounce practices that are derogatory to the dignity of the women– Presence of one flag and single citizenship not only reflects the spirit of brotherhood but also directs the citizen to leave behind all the differences and focus on collective activity in all spheres.  
6. One should value and preserve the heritage of our composite culture– India’s culture is one of the richest heritages of the earth. So, it is compulsory for every citizen to protect the heritage and pass it on to future generations. 
7. One should protect and improve the natural environment including forests, lakes, rivers, wildlife and a citizen should have compassion for living creatures–  Under Article 48A this duty is provided as a constitutional provision also. The natural environment is very important and valuable for each and every country. So each and every citizen should make efforts in order to protect it.
8. One should not only develop the scientific temperament and humanism but also the spirit of inquiry and reform– For his/her own development it is necessary for a person to learn from the experiences of others and develop in this fast-changing environment. So one should always try to have a scientific temperament in order to adjust with these changes.
9. One should always safeguard public property and abjure– Due to unnecessary cases of violence that occurs in a country which preach for non-violence, a lot of harm has already been done to the public property. So, it is the duty of every citizen to protect the public property.
10. One should always strive towards excellence in all spheres of life and also for the collective activity so that the nation continues with its endeavour and achievements– In order to ensure that our country rises to a higher level of achievement, it is the basic duty of every citizen to do the work that is given to him/her with excellence. This will definitely lead the country towards the highest possible level of excellence.
11. One should always provide the opportunity of education to his child or ward between the age of six to fourteen years– Free and compulsory education must be provided to the children who belong to 6 to 14 years of age and this has to be ensured by the parents or guardian of such child. This was provided by the 86th Constitutional Amendment Act, 2002. 

Features of Fundamental Duties

The features of Fundamental duties are as follows:

1. Both moral and civic duties have been laid down under the fundamental duties, like, “the Indian citizens should not only cherish the noble ideas that lead to the freedom struggle but they should also respect the Constitution, the National Flag and National Anthem”.
2. Fundamental rights can be applied to foreigners also but the fundamental duties are only restricted to the Indians citizens.
3. The fundamental duties are not enforceable in nature. No legal sanction can be enforced by the government in case of their violation.  
4. These duties are also related to Hindu traditions or mythology like paying respect to the country or promoting the spirit of brotherhood.

Fundamental duties and Indian constitution

The Constitution was adopted in the year 1949, but it did not contain the provisions for fundamental duties. The Parliament of India not only realised the need to insert fundamental duties in the Indian Constitution but it also felt that everyone should perform such duties. A new part, that is Part IVA, was inserted by the 42nd Amendment Act, 1976 which provides for several fundamental duties that needs to be followed by the citizens of India. 

These duties are considered as “directory” as these duties cannot be enforced through the writ of mandamus because they don’t cast any public duties. Fundamental duties are the basic reminder of our national goals and basic norms of political order. They inspire an individual to inculcate in himself/herself a sense of social responsibility. The Supreme Court said that the fundamental duties can be used to interpret any statue which is uncertain. These duties provide educational and psychological value to the citizens of India. These duties uphold the spirit of Democracy and patriotism.

In the case of Ramlila Maidan Incident[1], the court held that the word “fundamental” is used in two separate senses in our Indian Constitution. When this word is used for rights then it means that these rights are very essential and any law which will violate the fundamental rights will be declared as void. But when this word is used for the duties then it is used in a normative sense as it set certain goals before the state which the state should try to achieve.

42nd amendment 1976

The 42nd Amendment Act, 1976 was approved during the Emergency period. The Indian National Congress which was at that time headed by Indira Gandhi approved this amendment. This amendment was regarded as the most controversial amendment. The provisions that were provided by this amendment act came into force on different dates. Most of the provision came into force on 3 January while others came into force from 1 April 1977. This amendment is also known as “Mini-Constitution” or “Constitution of Indira” because wide changes were brought to the constitution. 11 Fundamental Duties were laid down by the 42nd Amendment.

86th amendment 2002

Only a few constitutions in the world provide the guidelines stating the obligations and duties of the citizens. To govern the rights and the duties of its citizens, Canada and Britain lay significance on the Common Law and its judicial decision. It is said that one should be taught to follow fundamental duties at a younger stage because if this will happen then it will not be important to list the duties in the Constitution as it will not affect its implementation. 

The Unnikrishnan Judgement[2] provided that all the citizens who are below the age of 14 years have a right to free and compulsory education. Due to an increasing public demand for education, the government worked towards making education a fundamental right. In 2002, an amendment was inserted in Article 51A. Article 51(k) was added after Article 51(j) which stated that it is a fundamental duty of every citizen who is a parent or a guardian to provide opportunities for free and compulsory education to a child who is between 6 years to 14 years of age.

In M.C Mehta (2) vs. Union of India[3] the Supreme Court held the following:

1. It is compulsory for all the educational institutions to organise a teaching lesson of at least one hour a week on the protection and improvement of the natural environment.
2. It is the duty of the Central Government under Article 51-A (g) to introduce this lesson in all the educational institutions. 
3. The Central Government should also distribute books free of cost on the same subject in all the institutes.
4. To give rise to the consciousness among the people towards a clean environment, the government should organise ‘keep the city clean’ week at least once in a year.

Fundamental duties committees

Swaran Singh Committee

The Chairperson of this committee was Sardar Swaran Singh who was given the responsibility to study the Indian Constitution during the National emergency. After declaring the emergency Indira Gandhi put the responsibility on this committee to study the Constitution and amend it keeping in mind the past experiences. Several changes were incorporated into the Constitution by the government based on the recommendations of the committee. 

The need and necessity of fundamental duties was felt during the emergency period. So in 1976, a committee was set up who made the recommendation for the same. The recommendation was made for including a separate chapter in the Indian Constitution under the heading Fundamental Duties. Citizens will be aware of their duties while enjoying their fundamental rights. This suggestion was accepted by the government and a new article that is Article 51A was included in the Indian Constitution which had 10 fundamental duties in it earlier. The government also said that it was a mistake that was made by the original framers of the India Constitution to not to include the fundamental duties at that time. The committee suggested for 8 fundamental duties but the 42nd amendment had 10 duties. Out of all the recommendations, not every recommendation was accepted.  

Some of the recommendations that were not accepted are:

1. In case of non-compliance with the fundamental duties, the Parliament can impose penalty or punishment.
2. In a court of law, such punishment or law won’t be questioned. 
3. Fundamental duties also include the duty to pay taxes which was rejected.

Justice Verma committee

In order to plan a strategy and methodology for working out a programme that was started worldwide for making the fundamental duties enforceable in every type of educational institution and to teach these duties in every school, Justice Verma Committee was established in 1998. The committee took this step because it was aware of the non-operationalization of the Fundamental duties. The committee found that the reason for non-operationalization was due to lack of strategy for its implementation rather than lack of concern. 

The committee provided with the provisions like:

1. No person can disrespect the National flag, Constitution of India and the National Anthem under the Prevention of Insults to National Honour Act, 1971.   
2. Various criminal laws have been enacted which provide punishment to the people who encourage enmity between people on the grounds of race, religion, language etc.
3. The Protection of Civil Rights Act  (1955) provided for punishments in case of any offence related to caste and religion.
4. The imputations and assertions that are prejudicial to the nation’s integrity and unity are considered as punishable offences under various sections of the Indian Penal Code, 1860.
5. In order to prevent a communal organisation to be declared as an unlawful association, the Unlawful Activities (Prevention) Act, 1967 was established.
6. If the members of the Parliament or the state legislature indulge in any corrupt practices like asking votes in the name of religion then they will be held liable under the Representation of the People Act, 1951.
7. The Wildlife (Protection) Act, 1972 protect and prohibit the trade in the case of rare and endangered animals.
8. The Forest (Conservation) Act, 1980 was implemented to make sure that Article 51A(g) was properly implemented. 

Need for Fundamental Duties

Rights and duties are correlative. The fundamental duties serve as a constant reminder to every citizen while the Constitution specifically conferred on them certain fundamental rights. Certain basic norms of democratic conduct and democratic behaviour must be observed by the citizens. The then ruling party, Congress, claimed that what the framers of the Constitution failed to do is being done now. This omission was rectified by introducing a chapter on citizen’s duties towards the nation. In India, people lay more emphasis on rights and not on duty.

This view was wrong. In this country, there has been a tradition of performance of one’s duties even in partial disregard of one’s rights and privileges. Since time immemorial emphasis was on individual’s KARTAVYA which is the performance of one’s duties towards society, his/her country and his/her parents. The Geeta and Ramayana also provide that people should perform their duties without caring for their rights. 

Traditional duties have been given a constitutional sanction. If one clearly looks in the Constitution not only he/she will discover his/her rights but also the duties. A careful look at the Constitution will definitely solve the question of the people who claim that the Constitution only provides for the rights to the citizen and not the duties of the persons towards the society. The Fundamental Rights that are provided to all the citizens are present in the Preamble of the Indian Constitution like liberty of thought, expression, belief, faith and worship. These are not absolute rights as the state can put reasonable restrictions on them in the interest of society. The remaining Preamble put emphasis on the duties like justice, social, economic and political.

Importance of fundamental duties

The government in order to create a strong foundation with a strong national character introduced fundamental duties. It not only lay emphasis on human dignity but also creates a feeling of harmony in the community. Our society can only be uplifted if each and every citizen focuses on bridging the gaps that have been created in the society, by performing their duties towards the society. Judicial reforms help in enforcing such duties from time to time because there is no provision in the Indian Constitution for their enforcement. If every person wants their fundamental rights to be realized then everyone should fulfill their duties.

The importance of fundamental duties are as follows:

1. Fundamental duties act as a constant reminder that the citizens while enjoying their fundamental rights should not forget about their duties towards the nation.
2. These duties act as a warning signal for the people against any type of antisocial activities. 
3. These duties gives a chance to the people to have an active participation in the society rather than being a spectator.
4. These duties promote a sense of discipline and commitment towards the society.
5. The courts can use fundamental duties for determining constitutionality of law. If any law is challenged in court for its constitutional validity and if that law is providing force to any of the fundamental duties then that law will be held reasonable.
6. If the fundamental rights are enforced by a law then in case of its violation the Parliament can impose penalty or punishment for the same.

The Supreme Court of India ordered cinema halls to play National Anthem while portraying the Nation Flag. This was a remarkable step taken by the Supreme Court while giving the importance to the fundamental duties.

Criticism of fundamental duties

There were various grounds for criticism for fundamental duties. These include:

1. Critics don’t consider the list of fundamental duties as exhaustive. They feel that many more important duties like paying taxes, casting votes that were also suggested by the Swaran Singh Committee were not included in this list.
2. A common man cannot understand the complex words like composite culture that are present in the fundamental duties. Due to lack of understanding, the true meaning cannot be established. For him/her such words are difficult to understand. Moreover some duties are ambiguous in nature.
3. These duties cannot be enforced by a court of law so, critics feels that it is of no use to include these duties in the Constitution.
4. Some duties are of such a nature that they are being performed by the citizen in each and every case like paying respect to the National Flag and National Anthem. So there was no need to include these duties in the Constitution.
5. These duties are placed in Part IV-A of the Indian Constitution that is after the Directive Principles of the State Policy, that’s why not much importance is given to them. According to the critics it should be placed in Part III after the Fundamental Rights. 

Fundamental duties case laws

In the case of Bijoe Emmanuel vs. State of Kerala[4] which is popularly known as the National Anthem Case, on refusing to sing the National Anthem in the school, three children of the Jehovah’s Witnesses were expelled from the school. There was a circular that was issued by the Director of Instructions, Kerala which made it compulsory for the school students to sing the National Anthem. These three children did not join the singing of the National Anthem but they stood up out of respect. They didn’t sing the National Anthem because their religious faith didn’t permit it and it was against their religious faith. They were expelled on the ground that they violated their fundamental duties and committed an offence under the Prevention of Insult to National Honours Act, 1971. The court reversed this decision of the High Court because they did not commit any offence and also they committed no crime under the Prevention of Insult to National Honours Act, 1971 as though they did not sing the National Anthem but they stood out of respect.

In M.C.Mehta (2) vs. Union of India[5], the Supreme Court held that it is compulsory for all the educational institute to organise a teaching lesson of at least one hour a week on the protection and improvement of the natural environment and it is the duty of the Central Government under Article 51A (g) to introduce this in all the educational institute. The Central Government should also distribute books free of cost on the same subject in all the institutes and also raise consciousness amongst people towards clean environment. The government should organise ‘keep the city clean’ week at least once in a year.

In the case of AIIMS Students Union vs, AIIMS[6] the Supreme Court held that the fundamental duties are equally important like the fundamental rights so the Court strike down the institutional reservation of 33% in AIIMS which is also coupled with 50% reservation discipline-wise which was violative of Article 14 of the Indian Constitution. The court also said that just because they are duties they cannot be overlooked. They have the same importance which the fundamental rights hold.

In Aruna Roy vs. Union of India[7], the court upheld the validity of the National Curriculum Framework for School Education which was challenged on the ground that it violated the Article 28 of the Indian Constitution and it was anti-secular because it provided for value development education relating to the basics of all religions. The court said that the NCFSF does not mention anything related to imparting religious instruction which is prohibited under Article 28 and education neither violate Article 28 nor the concept of secularism.

In order to make a right balance between Fundamental Rights and Duties the petitioner in the case of Hon’ble Shri Rangnath Mishra vs. Union of India[8] wrote a letter to the President so that he can give directions to the State in order to educate citizens in the matter related to fundamental duties. This letter was treated as a writ petition by the Court. But by the time this matter would be heard a report was submitted to the Government of India by the National Commission who was reviewing the Constitution at that time. Following suggestions were provided by the commission in the court:

1. In order to sensitise the people and to create general awareness regarding the fundamental duties, the State and the Union Government should take proper steps on the lines that were recommended by the Justice Verma Committee.
2. For generating awareness and consciousness of citizens related to fundamental duties, modes and manners needs to be adopted.

The court took into account the recommendations made by the National Commission and also directed the government to take necessary steps. The writ was disposed of.

In Government of India vs. George Philip[9], the compulsory retirement was challenged by the respondent from the service. Two years of leave was granted to him by the department to pursue advanced research training. After the repeated reminders he overstayed in foreign, so, an inquiry was instituted against him and the charge was proved. The High Court provided him with a remedy to join the service again on one clause that no back wages would be provided but the Supreme Court had set aside this order. The Supreme Court said that according to Article 51A(j) one should always strive towards excellence in all spheres of life of an individual and also for the collective activity so that the nation constantly rises to a higher level of endeavour, achievements and excellence could not be achieved unless discipline is maintained by the employees. The court also said that no order should be passed by the courts which destroy the essence of Article 51A and the order passed by the High Court, in this case, was destroying the essence of the Article.

The court in the case of Dr. Dasarathi vs. State of Andhra Pradesh[10], held that under Article 51(j) every citizen must abide by its duty to always strive towards excellence in all spheres of life and also for the collective activity so that the nation constantly rises to a higher level of endeavour and achievements. For this, the State can provide ways to achieve excellence according to the methods which are permitted by our Indian Constitution.

In the case of Charu Khurana vs. Union of India[11] the Supreme Court held that the State should provide for opportunities rather than curtailing it. The court also said that the duty of the citizen have also been extended to the collective duty of the state.

Enforcement of Fundamental Duties

The fundamental duties not only guide the citizen but also guides the legislative and executive actions of elected or non-elected institutions, organisations and municipal bodies. Duties are only observed by the citizens when either it is made compulsory by the law or under the influence of role models etc. So this makes it necessary to make suitable legislation whenever it is important for the citizens to observe the duties. These duties should be made operational only when the directions have been provided by the legislature and judiciary and still there is a violation of fundamental duties. But if the existing laws are inadequate and they cannot enforce the required discipline then the legislative vacuum needs to be filled.

The legal utility of fundamental duties and directive principles is the same. Fundamental duties are addressed to the citizens whereas directive principles address to the state and there is no legal sanction in case of their violation. If a person does not care about his/her fundamental duties then he/she does not deserve the fundamental rights. These duties are not legally enforceable but if any act is done by a citizen that is in violation of the fundamental duties then it would be considered as a reasonable restriction on the relevant fundamental rights.

The 42nd Amendment, incorporated duties in the Constitution and these are statutory duties and shall be enforceable by law. If there will be a failure to fulfil those duties and obligations then the Parliament, by law can impose penalties. The success of this provision will solely depend upon the manner and the person against whom these duties would be enforced. If the duties are not known to all, then there would not be proper enforcement of these duties. Due to the illiteracy of the people, they are not politically conscious of what they owe to the society and country. Homes, universities, or any other place can be made the centres for imparting in the performance of their obligations.

Fundamental duties complement fundamental rights

The Constitution of India not only provide with the fundamental rights but also with the fundamental duties. Although the fundamental rights were introduced in the Constitution much before the fundamental duties and are also enforceable by the court. 42nd Amendment, 1976 introduced the fundamental duties. But these duties are not enforceable. These are the moral duties of a responsible citizen. The fundamental duties must be complementary to the fundamental rights.

Article 21 of the Indian Constitution provides for Right to education and Article 51A(k) provides that all parents and guardians must provide their children with free and compulsory education at the age of 6-14 years. This shows that fundamental rights and duties are complementary to each other. 

But in today’s time people only want their rights and don’t want to perform their duties. There are many examples which shows that people while using their fundamental rights avoid their fundamental duties.

The recent example can be taken of what happened in JawaharLal Nehru University. People while exercising their fundamental right of Freedom of Speech and Expression raised anti India slogans in the campus of the university. While exercising this right they violated their fundamental duty that is laid down in Article 51A(c), that is the “power, unity, integrity of the country must be protected by its citizens”. 

Many political leaders often attract votes in the name of religion. While doing this they violate their fundamental duty that is provided in Article 51A(c) that is “the power, unity, integrity of the country” must be protected by its citizens. They divide the society into different religion and caste.

Democracy cannot establish its deep roots in the society until and unless the citizens don’t compliment their fundamental rights with their fundamental duties. While enforcing their fundamental rights they should fulfill their fundamental duties.

Relationship between the fundamental rights, directive principles and fundamental duties

The relationship between the fundamental rights, directive principles and fundamental duties are as follows:

In cases where there was a conflict between the constitutional validity of the legislation with the fundamental rights, then the Directive Principle of State Policy have been used to uphold the constitutional validity of such legislation. The 25th amendment in 1871 added Article 31C which states that any law enforced which was to give effect to the directive principles that were provided in Article 39(b)-(c) would not be held invalid on the grounds that they derogated from the fundamental rights that are present in the Articles 14, 19 and 31 of the Indian Constitution. The 42nd amendment proposes that Article 31C should be made applicable to all the Directive Principles. But the Supreme Court struck down this suggestion as it violates the basic structure of the Indian Constitution. For forming the basis of the legislation related to social welfare the fundamental rights and the directive principles have been used together.