This article is written by Gautami Pradhan, a student at Symbiosis Law School, Noida. In this article, she discusses about the landmark case of Gurbaksh Singh Sibbia & Ors. Vs. State of Punjab of Anticipatory bail and critically analyses the stance taken by the Constitutional Bench.

Introduction

Gurbaksh Singh Sibbia & Ors. Vs. State of Punjab, is a landmark case in regards to the concept of ‘Anticipatory Bail’ in India. As such the term “Anticipatory bail’ has not been mentioned anywhere in any of the Indian legislations. But Section-438 of The Code of Criminal Procedure, 1973(Cr.P.C.) provides for bail in anticipation of arrest. According to this section, a person who anticipates having committed a non-bailable offence can apply to the high court or session’s court for bail in the event of arrest. The court has the discretion to grant him or reject his bail application.  

This case, in particular. is extremely essential as the Constitutional bench laid down eight guidelines to be followed by the High courts and session’s courts while exercising their discretionary powers to grant or reject anticipatory bail.  It was a five judge bench and consisted of Justice Y.V. Chandrachud, Justice P.N. Bhagwati, Justice N.L. Untwalia, Justice R.S. Pathak and Justice O. Chinnappa Reddy.  This project aims at critically analysing and commenting on the arguments and judgement of this particular case.

Facts of the case

Mr. Gurbaksh Singh Sibbia, the appellant, was the Minister of Irrigation and Power in the Government of Punjab under the Congress regime. He and a few others were facing serious accusations of corruption and undue use of power. The minister along with the other appellants  apprehends arrest.

The appellants applied for anticipatory bail under Section 438 of the code. in the High Court of Punjab and Haryana. They prayed for the HC to direct the appellants to be released on bail in the event of arrest on the basis of the above stated charges.

The application was dismissed by the full bench of the High Court but on special leave to appeal, the application was allowed by the Supreme Court.

Relevant Laws

Sections 437 and 438 of the Code consist of provisions regarding grant of bail to a person apprehending an arrest.

Section 437, specifically, describes instances or circumstances when bail may be granted for a non-bailable offence. Whereas, Section-438 deals with the provisions regarding grant of bail to a person apprehending an arrest. 

According to Section 437, a person may be released on bail if he has been detained without a warrant for the suspicion of commission of a non-bailable offence and if the court or investigating officer do not find a reasonable ground for believing that the suspect has committed a non-bailable offence but find ground for further inquiry into his guilt. The clauses have certain riders attached to them which ascertain the circumstances in which the bail must not be granted.

Section 438 includes provisions regarding ‘who can apply for anticipatory bail?’, ‘ who is it to be applied to’, ‘what are the conditions that must be considered while granting an anticipatory bail’ and ‘who can grant bail in specific circumstances’. According to this section, a person who apprehends arrest on suspicion or accusation of commission of a non-bailable offence may apply for anticipatory bail to the High Court or the Session’s court. 

The aim of the provisions has clearly been shown in the case of Ashok Kumar v State of Rajasthan. In this case, the Court clearly mentioned that until and unless the chances of dishonouring of the accused are clear in the allegations, Anticipatory bail will be denied under section-438.

Arguments

Appellant’s Arguments:

1. The appellant’s in the High court trial contended that the appellants, Mr. Gurbaksh Singh Sibbia and others were men of substance and held high positions in the Punjab Ministry and were unlikely to abscond or avoid facing the trial. Thus, they must be granted anticipatory bail.
2. The appellant’s in their appeal to the Supreme court contended that:

• The power conferred by Section 438 of the Code on the HC or Session’s court to grant anticipatory bail is not necessarily limited to the circumstances or contingencies as summarised by the full bench of the High Court. 
• The concerned court must have the discretion to grant  anticipatory bail depending upon the circumstances and facts of that particular case.
• The denial of bail amounts to deprivation or violation of Right to life and personal liberty. Thus, the courts should lean away from the imposition of restrictions that are not needed in regards to the provisions of Section 438 when there are no such restrictions laid down by the legislature in that section.
• Section 438 provides for the procedure of granting of an anticipatory bail. It is concerned with the Right to Life and Personal liberty of an individual who is yet to be found guilty in the commission of a non-bailable offence. Thus, the section and its provisions must be tested to examine their fairness. Imposition of unreasonable grounds must also be taken into account while determining the scope of Section 438. If the court imposes an unfair restriction on the Individual’s right to obtain an anticipatory bail, it would be violative of Article 21 and is liable to be struck down.

High Court’s Contention regarding the First argument:

The High Court’s Full Bench rejected the appellant’s contention on the account of negation of equality in considering the position and status of the party or individual while granting an anticipatory bail. According to the Full Bench, this contention was illogical and aggravating.

Full Bench’s Arguments and Grounds for rejection:

• The powers conferred upon High courts and Sessions courts for grant of anticipatory bail under Section 438 must be used in a restricted manner in exceptional cases as these powers are of an extraordinary nature/character.
• The Code of Criminal Procedures, 1973 does not provide for authority to the courts to grant protective anticipatory bail for offences yet to be committed or accusations that have not been far levelled.
• The limitations provided in Section 437 must be read with Section 438 while granting an anticipatory bail. 
• If the investigating officer suspects a legitimate ground for the individual’s remand to the police custody under the Section 167(2) of the Code and Section 27 of the Evidence Act, the power conferred under Section 438 must not be exercised.
• This power cannot be exercised in regards to offences that involve death penalty and life imprisonment as punishments unless the court is of the view that the charges are baseless and untrue.
• In cases of grave economic offences involving corruption, the court should not exercise its discretion to grant anticipatory bail citing public and state interest.
• Mere allegations of mala fide intention should not be entertained by the court. The court should be satisfied with the materials and evidence before it and decide accordingly whether the accusations are true or false.

Judgement

Obiter dictum

The appeals and special leave applications before the Supreme Court were disposed off. The Supreme Court held that the discretion of granting Anticipatory bail must be used more objectively and the higher courts have the power to correct this discretion if the need arises. A dual protection has been provided to this system so that there is no misuse if the discretion and the process. The constitutional bench set aside the judgement of the Full Bench and laid down the following guidelines for exercise of discretionary power:

1. The power though of ‘extraordinary character’ does not justify its use in exceptional cases. Due care, caution and circumspection must be used while exercising such powers.
2. The Individual applying for anticipatory bail must have a reasonable apprehension of getting arrested for a non-bailable offence, which can be objectively examined by the court.
3. Anticipatory bail must not be denied in cases where the accused is suspected to have committed an offence punishable in the form of death penalty or life imprisonment unless the court has sufficient evidence before it to justify the refusal.
4. Blanket or protective orders of bail should not be passed. Also, for efficient investigation, certain conditions can be imposed under Section-438(2) such as on discovery of a material or evidence in regards to the case.
5. Filing of FIR is not a condition precedent to the grant of anticipatory bail under section 438 and the individual can be granted bail as long as no arrest has been made.
6. The provisions under Section 438 cannot be invoked after the arrest has been made.
7. Under Section 438, interim bail order can be passed without issuing a notice to the Public Prosecutor but it should be mandatorily issued to him afterwards. The court has the discretionary powers to impose suitable conditions in case of such interim bails.
8. The court has the power to limit the operation of anticipatory bail orders until after the FIR is filed. The applicant may be asked to obtain a bail order under Sections 437 or 439 of Cr.P.C. after the filing of FIR has taken place.

Ratio Decidendi

The five judges’ bench was of the view that the discretionary power conferred upon the High courts and Sessions Courts, by the legislature can be accounted for by the fact that the criminal justice system cannot be engulfed in a straight jacket formula and the exercise of these powers depend upon the facts and circumstances of the different cases. And as no two cases have similar facts, the courts must be provided with a free hand to exercise their powers accordingly. 

According to Justice Chandrachud, the society has a vital interest in the right to personal liberty and the investigational power of the police even though relatively their importance depends upon the political conditions of the state at any given point of time. He highlighted that it was the court’s task to figure out how to strike a balance between the two and determine the scope of the Section 438 under the Code of Criminal Procedure, 1973.

Justice Chandrachud has also pointed out the term “reason to believe” means the apprehension must be founded upon reasonable grounds and not just a mere ‘belief’ or ‘fear’. The reason for this is that if an application for anticipatory bail is applied without any ground for the apprehension of arrest, the court gets overburdened with unnecessary cases and applications. This hampers with the efficient working of the judicial system.

Critical Analysis 

The Full Bench’s decision of limiting section 438’s use only to exceptional cases citing it’s extraordinary character was hampering with the deliverance of Justice and equality before the law. A person wrongly accused of a non-bailable offence would have no respite if such a limitation or restriction was put on the exercise of discretionary powers under Section-438. Also, there was ambiguity regarding the term ‘exceptional cases’ as the full bench did not specify under what exceptions was the use of powers conferred under Section 438 allowed. Thus, the Constitutional bench’s decision of setting aside this argument was logical and promoted equity.

Also, the Constitutional bench’s decision to impose certain restrictions on the anticipatory bail for efficient investigation is a better guideline in contrast to the High Court’s Full Bench’s decision which implied that the power under 438 must not be exercised at all. This curtailed the individual’s right to personal liberty and to procure a bail warrant which in turn violated Article 21 of Fundamental Rights.

The guidelines regarding Interim bail and limitation on the operation of an anticipatory bail give the courts a free hand to make decisions according to their discretion and curtail generalisation of laws which frustrates the working of the criminal justice system.

The constitutional bench’s stance that the learned judges of High courts and Sessions courts are capable of making wise decisions owing to their vast experience in the field is logical and even if they make a decision which is violative of Article 21, it can be subjected to judicial review and revision. But the concept of Anticipatory bail is very different from a normal bail. The reason for ambiguity in this case is that the person applying for anticipatory bail is not in any kind of custody, be it state or private.  

Anticipatory bail is a matter which is taken to court on mere presumption of threat of arrest. The matter is not of any kind of criminal nature yet. This does not allow the Investigating officers and/or agency, the scope to work on the case and defeats the purpose of granting investigative authority to these agencies or officers. This will result in the court interfering with the powers and work of the police.

Suggestions

The following suggestions can prevent curtailment of the individual’s (seeking anticipatory bail) personal liberty in its general sense/manner:

On releasing a person on anticipatory bail, his passport, deed for title of property or any other such documents must be seized in order to prevent him from absconding or avoiding the trial. Freezing of bank accounts should be made optional and restricted to the cases where the punishment is death penalty or life imprisonment.

The court must direct the accused to furnish an undertaking in regards to  not tampering with the evidence and not visiting the witness’s residence to threaten him/her.

The accused must be directed to join the investigation procedure and if he does not comply with such a direction, he should be arrested.

Overall, the decision of the constitutional bench was logical, practical and not at all violative of the power of discretionary decision making conferred upon the High courts and Sessions courts regarding granting of anticipatory bail orders. It is also not violative of the personal liberty of an accused individual.

Conclusion

In conclusion, the provisions of Section 438 of Cr.P.C. should not be suspected as containing something sensitive, which needs to be handled with great care and caution. A wise exercise of judicial power inevitably takes care of the evil and dangerous consequences which are likely to come out as a result of the use of Section 438. Neither inflexible guidelines can be provided for grant or refusal of anticipatory bail nor should any attempt be made to provide such guidelines in this respect because all cases have different facts and circumstances and cannot be adjudicated upon using the same guidelines. In any event, this is the legislative mandate which the Courts are bound to respect and honor. Anticipatory bail is a device to secure the individual’s liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusation, likely or unlikely.

The post Case Analysis : Gurbaksh Singh Sibbia & Ors. Vs. State of Punjab appeared first on iPleaders.

This article is written by Shubhangi Sharma, 5th year student of BA LLB in Lloyd Law College, Greater Noida. The article explains about the forms of ADR and their procedure.

Introduction

Arbitration, Conciliation and Mediation are the Alternative Dispute Resolution for solving civil nature disputes. These are dispute resolution methods to deal with disputes on a broad and global scale. Through these methods one can resolve their disputes without access to the regular judicial system, i.e. judicial courts. The Article 39A of the Indian Constitution clearly states that The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

So, to implement their orders, the Parliament came up with various alternative dispute Resolution (ADR) methods such as arbitration, conciliation, mediation etc to strengthen the judicial system of the country. Not only Constitution , CPC also provide Section 89 Order 10 Rule 1-A to 1-C to the parties to opt for ADR processes. In recent years, ADR has gained worldwide recognition among the general public and also in legal world. It is a cost effective method to resolve disputes as trial is the expensive one. ADR procedures are generally more flexible than court procedures. ADR is provides speedier mechanism to resolve a matter in dispute rather than the court system. 

Arbitration

Meaning

Arbitration is like a court procedure because the parties submit evidence similar to a trial where the third party hear the entire situation and give his decision which is binding upon the parties. In the case of Collins v Collin, the Court held that “An arbitration is a reference to the decision of one or more persons, either with or without an umpire, of some matter or matters in difference between the parties.” an arbitrator listens to the evidence which is brought by both parties and makes a decision which is generally binding upon both parties. Arbitration means getting an arbitral award on an ongoing conflict, by the arbitrator. In the process of arbitration, the cause is heard and determined between the parties in a dispute before the person selected by the parties or appointed under statutory authority i.e., The Arbitration and Conciliation Act, 1996. The objective of Arbitration is to settle the dispute which arose between the parties by one or more arbitrators appointed by them by going through the documents and evidences. According to Kurt Brenn “The objective of arbitration is not compromise but adjudication through the parties are at liberty to comprise.” A wise arbitrator would certainly promote such agreement, but as a rule there is no zest, if there is compromise in arbitral awards. While taking a decision in arbitral matter, the arbitrator must consider the fact that the decision imparted by him must be in the interest of principle of natural justice.

Arbitration can be done by voluntary or compulsory method. In Voluntary arbitration, if a dispute arose between the two Parties and they are unable to resolve their differences by themselves, thereby the parties agreeing to present their Dispute to the fair authority and the decision will be binding upon both parties. Whereas Compulsory arbitration, is the method where the parties are required to accept arbitration without any willingness on their part. When one party in any industrial dispute feels aggrieved by the act of the other party, it may approach the appropriate government to refer the dispute to any organization of adjudication for the settlement. The arbitrator or arbitral tribunal consists of a neutral person or persons responsible for resolving the dispute that the parties have submitted before them.

The number of arbitrators and their appointments are defined in Section 10 and 11 of Arbitration and Conciliation Act, 1996. The person from any nationality can be appointed as arbitrator, unless agreed by the parties. The number of arbitrators must be in odd number or there can be a sole arbitrator. The parties in conflict are free to appoint the arbitrator or they can approach the statutory authority for the same. In arbitration, if there are three arbitrators then each party will choose one arbitrator and the two appointed arbitrator will choose one arbitrator who will act as presiding officer. If the parties failed to appoint an arbitrator within 30 days as requested by the other party or the appointed arbitrators have failed to come on same page in appointing the arbitrator within 30 days or they have any kind of disagreement, then they can approach the chief justice or the other person or institution nominated by him regarding the appointment.

The Fifth Schedule to the Act (Annexure-A) are enlisted with the grounds which give rise to justifiable doubt as to the independence or impartiality of an arbitrator. The Seventh Schedule (Annexure-B) consists of the grounds which make a person ineligible to be appointed as an arbitrator.

In International Commercial Arbitration, the arbitrators will be appointed by the Chief Justice of India or by the person or institution nominated by him who will be of a nationality other than the nationality of the parties.

Arbitration agreement

The arbitration agreement is defined as written under Section 2 (a) of the Arbitration Act, 1940 i.e. written agreement which present current or future dispute of parties to arbitration , irrespective of the name of the arbitrator in it or not. An arbitration agreement or an arbitration clause in an agreement is sometimes termed as ‘submission’. Arbitration agreement is also termed as ‘reference’. The arbitration agreement defined by Halsbury, ‘It is an agreement made by two or more parties between whom some difference has arisen or may hereafter arise whereby they appoint another person to adjudicate upon such dispute and agree to be bound by his decision. There are some essentials which needs to follow for a valid arbitration agreement like the agreement must be in a written form containing minimum terms of arbitration. The important objective of written agreement is that the parties should agree to resolve the dispute through arbitration. It must contains the essential elements of a valid contract such as offer and acceptance, competent parties, consent, lawful consideration etc. The features of arbitration are that it is a private tribunal chosen by the parties. A person appointed to resolve the differences or disputes is called an ‘Arbitrator’, the proceeding is termed as ‘Arbitral Proceeding’ and the decision imparted is termed as ‘Award’. Signing an Arbitration Agreement also leads to giving up important rights. So, before signing the agreement, one should properly read the terms of agreement and must reject or negotiate upon the inconvenient terms.

Landmark cases on arbitration

R.V. Solutions Pvt. Ltd. v. Ajay Kumar Dixit & Ors. In this case, The Delhi High Court held that a non-signatory or third party can only be subjected to arbitration in exceptional cases without its consent. The arbitrator is required to form a direct relationship with the signatory party of the agreement, or between the parties in the agreement or the equality of the subject or the overall transaction.

Garware Wall Ropes Ltd. v. Coastal Marine Constructions & Engineering Ltd, the court states that The High Court should stop the instrument which has not imposed stamp duty and hand it over to the authority which will then decide to implement the payment of stamp duty and penalty (if any) at the earliest, and preferably a period of 45 days. . Within the date on which the instrument of authority is received. As soon as the stamp duty is paid on the instrument, either party can bring the instrument to the notice of the High Court which will then proceed to hear and dispose of the Section 11 application expeditiously.

BHEL v. Uttar Pradesh Rajya Vidyut Utpadan Nigam Limited. The Supreme Court held that where the parties do not insist on the exclusive jurisdiction clause in an agreement or raise such objection, and by their conduct, waive such condition / submit themselves to the jurisdiction of another court , It cannot be said that exclusive jurisdiction shall be without jurisdiction except in the court in which it is vested.

Paschimanchal Vidyut Vitran Nigam Limited v. M/S IL & FS Engineering & Construction Company Limited O.M.P The question before the Delhi High Court was whether the provisions of the Fourth Schedule to the Act relating to fees to be paid to arbitrators would apply to domestic ad hoc arbitration where the parties have not approached the court to constitute an arbitral tribunal.

It was held that the provision in respect of fees contained in Section 11 (14) of the Act is only a competent provision. The concerned High Court has been given to frame the rules, if it chooses to do so. Since the parties did not approach the court for the formation of the Arbitral Tribunal, the Court would have no role in deciding the fees of the Arbitral Tribunal as there is no such power vested in the Court. Further, the provisions of sub-Section (14) of Section 11 clearly show that the fee prescribed in the fourth schedule of the Act is only suggestive.

Conciliation

Conciliation means settling disputes without litigation. It is an informal process in which conciliator i.e. third party tries to bring the disputants to agreement. He overcomes the disputable issues by lowering the tension, improvement in communication, interpreting issues, providing technical assistance, exploring potential solutions and bringing the negotiated settlement before the parties. Conciliator adopts his own method to resolve the dispute and the steps taken by him are not strict and legal. There is no need of agreement like arbitration agreement. The acceptance of settlement is needed by both of the parties.

Part III of the Arbitration and Conciliation Act, 1996 deals with conciliation. it is a voluntary proceeding where parties in dispute agree to resolve their dispute through conciliation. It is a flexible process which allows the parties to decide the time and place for conciliation, structure, content and terms of negotiations. In Conciliation, the conciliators are trained and qualified neutral person who help the conflicting parties to make them understand the issues in dispute and their interest to reach mutually accepted agreements. The conciliation process includes the discussion between the parties which is made with the participation of the conciliator. It covers many disputes like industrial disputes, marriage disputes, family disputes etc. This allows the parties to control the output of their dispute. The result is also likely to be satisfactory.

Conciliator

Conciliator is the third party who is involved in settling the dispute of the parties. Generally, there is one conciliator for the settlement but there can be more than one conciliator, if the parties have requested for the same. If there is more than one conciliator then they will act jointly in the matter. Section 64 deals with the appointment of conciliator which states that if there is more than one conciliator then the third conciliator will act as the Presiding Conciliator.

Kinds of Conciliation

1. Voluntary Conciliation- In this method parties can voluntarily participate in the process of conciliation for resolving their dispute.
2. Compulsory Conciliation- If parties do not want to take the opportunity of voluntary conciliation then they can go for compulsory conciliation. In this method, if the parties do not want to meet the other party to resolve the dispute then the process is said to be compulsory. This method is commonly used in labour cases.

 Procedure of Conciliation

The objective of the conciliation proceedings is to reach upon mutual terms, speedy and cost-effective settlement of the dispute. Section 62 discuss the initiative of conciliation will start when one party will send Written Invitation to conciliate upon the matter to the other party. There will be the commencement of procedure if the other party accepts the invitation in writing to conciliate. If the other party rejects the invitation or the party who is willing for the conciliation does not get a reply from the other party within Thirty days then it will be treated as a Rejection of the Invitation.

Section 65 explains the submission of the statements of both the parties to the conciliators. Each party should submit a brief written statement regarding dispute as requested by the conciliator. The statement should describe the general nature of the dispute and the points of issue. Each party should send a copy of their statement to the other party. The conciliator can also ask for the submission of written statements which includes issues of the parties, grounds of settlement etc. These statements must be supplemented by evidence, documents or visual representation. The copy of the same statement must be sent to the other party. Conciliator can also request for additional documents whenever he needs them. According to Section 67(3) and 69(1), the conciliator can set up meetings for the parties or he can meet parties together or separately. The place of meeting can be decided by parties or conciliators. He can also communicate with the parties orally or in written form. He must also consider the party’s expressed wishes like quick settlement of the case which also depends upon the circumstances of the case.

Advantages and disadvantages of Conciliation

Advantages

1. The conciliation procedure is of private nature. The documents, evidences or any other information which are used during the process are Confidential.
2. One of the most important advantages is that they are Informal process and contains Simple procedures which can be easily followed by the general people.
3. The process depends upon the circumstances of the case. In these processes the need of the parties comes first like quick settlement of their cases so there is no chance for delay.
4. The selection of the conciliators depends upon the parties. The parties can choose conciliator on the basis of their availability, experience in particular field, previous track records of the cases, knowledge in subject area.
5. The conciliation is cheap as compared to litigation. They are cost effective and most opted process for resolving disputes. It purely depends upon the nature of the dispute but is widely acceptable.

Disadvantages

1. Conciliator is not a legally qualified person for resolving disputes. His decision is not binding upon the parties.
2. As the procedure of conciliation is informal and simple there is high possibility of delivering injustice.
3. Miscommunication of information: The role of the conciliator to settle up the case by giving information of one party to another and vice versa. The process of sending and receiving information sometimes leads to mixed and incorrect information. So, by these processes one can easily interpret the information given.

Mediation

Meaning

Mediation is one of the alternative dispute resolutions which are voluntary and informal process for resolution of disputes. Mediation is a process which is under the control of the parties. The mediator acts as a middle person who helps to come on a negotiated common point of their dispute. They are trained professionals or sometimes attorneys who assist the parties in dispute to meet at a common place where they can discuss their issues and can try to negotiate to reach at a common output. A mediator uses special kind of conversation and communication to resolve the parties dispute.

The parties can appoint the mediators themselves with mutual consent or the court may appoint the arbitrators in pending litigation. In Mediation, the parties are the decision makers. Mediators don’t decide what is right or wrong or what is fair or unfair. Mediator can’t impose his opinion upon the parties but he can suggest and help the parties to reach a mutual accepted agreement. Mediators may hold joint meetings or can meet with the disputed parties together or separately and can suggest some possible solutions, provide options to compromise, or provide advice and guidance but they cannot impose their opinion or try to solve the dispute forcefully. In mediation, both parties are responsible for reaching the outcome. The role of the parties in mediation is not to convince the mediator but to come up with a common solution which is acceptable by both the parties.

Mediation is an informal method of settling disputes, while it consists of basic rules or procedures. The decision of the mediation is non-binding upon the parties. If the disputed parties have agreed for the process of mediation then it is not binding upon them to agree upon the proposed opinion of the Mediator. The mediator can suggest, give opinions and can tell what to do or what not but he can’t force the parties to attend the mediation if they are not interested to continue.

Mediation can be divided into two categories which is commonly followed in India:

1. Court referred mediation

The court may refer the pending case to a mediator for mediation if they think there is possibility for the settlement of the case. The act of referring cases is given in Section 89 of the civil procedure code, 1908. These kinds of mediation are used in matters like divorce cases or cases which deals under Negotiable Instrument Act, 1881.

2. Private mediation

In this kind of mediation, the professional and trained person works as Mediator. The general public, government authorities, personnel from corporate sector or anyone from court can approach them for settling their dispute through mediation.

Mediation in India

Mediation is one of the ancient methods of resolving disputes between the parties.Various forms of Mediation among businessmen gained recognition during Pre-British rule in India. The Mahajans were respected, impartial and wise businessmen who resolved disputes between merchants through mediation. The informal process practiced in India’s western province of Gujarat was a combination of Mediation and Arbitration, now known as Med-Arb in the Western world. Despite of getting widespread acceptance in the business world, arbitration had no legal sanction. 

The East India Company gained control from England and divided Indian rulers and converted their commercial purpose in political aggression. By 1753, Britishers established their colonies and British-style courts came into existence in India. By 1775, Britishers ignored the local indigenous processes for settling disputes and set up courts based on British laws of that period. However, there was an underground dispute going on between British values which gives clear decision on cases and Indian values ​which promote the parties to work with their differences and end it with some kind of settlement. British courts slowly became recognized for their integrity and by gaining people’s confidence. Even after the Independence of India in 1947, the Indian judiciary has been declared as Nation’s Pride. Commerce, trade and industry began to expand rapidly in the 21st century the British system quickly dispensed justice while maintaining respect and honour. In Independence, mediation has also played an important role in awareness of fundamental and individual rights, Government’s participation in the growth of trade, commerce and industry of the nation, establishment of Parliament and State Assemblies, Government Corporation, Financial Participation in institutions, fast growing international commerce and public sector business. 

The explosion in litigation resulted from the increase of civil litigation, Business opportunities beyond local borders, increase in population, creation of new acts, new rights and measures and increase dependence on sole Judicial Forum of Courts.. Due to lack of facilities there was a challenge to handle the overload of cases efficiently and effectively by the judicial forum. The concept of Arbitration got legislative recognition for the first time in India through Industrial Disputes Act, 1947. Almost all democratic countries of the world have faced similar problems regarding access to justice. The United States faced the most major changes in their law reform in 30 years and the same was being followed in Australia. United Kingdom has also adopted alternative dispute resolution as part of its legal system. European Union also favoured the arbitration for the settling of commercial disputes between member states.

Differences between Arbitration and Mediation

Difference between Mediation and Conciliation

Difference between Arbitration and Conciliation

Conclusion

The procedures and techniques discussed above are the most commonly used methods of ADR. However, there are countless various ADR methods, many of which modify or combine the above methods. With each type of ADR, the objective is to resolve the dispute by method of round table discussion . ADR is the most effective process which lessens the burden of courts. ADR promotes harmonious relationship among parties. The settlement of disputes through ADRs is so effective and globally accepted that courts have recognized some of them like mediation more often. This avoids procedure of litigation and the award for fair and impartial settlement of doubtful issues of an individual on legal and ethical basis which is based upon ground reality.

This is what distinguishes ADR methods from general litigation. There can be only one winning party after a court trial, while all parties can be treated as winner after conciliation, mediation or negotiation, as there is no conflict between them and they go through the settlement procedure.

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This article has been written by Diva Rai, a student of Symbiosis Law School, Noida. In this article she discusses the doctrine of non-arbitrariness and Equal Protection of the laws.

Introduction

Indian constitutional law has an ambivalent non-arbitrariness connection. The doctrine among attorneys is highly common and among academics is similarly controversial. As any lawyer who has been in a written court in India for more than a week would know, a claim of arbitrariness is the simplest argument to build on any challenge that even remotely involves the state [1]. This may explain the popularity of the doctrine among lawyers.

Equally evident are the reasons for its unpopularity among academics. Besides being a sworn prose in the vein of arbitrariness enemy of equality [2]. In turn, which could not be cribbed, cabineted or described, the Supreme Court did not articulate any principled reasoning in support of the doctrine. Furthermore, since it is not directly linked textually to Article 14, over the years it has assumed the form of a vague super-law as some have feared.

The latest judgment of a Supreme Court division bench in Rajbala v. State of Haryana [3] has rejuvenated the discussion in the renowned Royappa case on the scope and content of the arbitrary doctrine advocated by a constitutional bench of the apex court. Arbitrariness continues to be a beleaguered doctrine since its founding. While some jurists criticized the word for its imprecise import and its probable adverse impact on the assessment of equality pursuant to Article 14, others have been indifferent in their reaction to this fresh growth because they think it is not a fresh test at all but merely a reassertion of the sensible classification or nexus test.

The connection between non-arbitrariness and Article 14 in this document and argue that a component of non-arbitrariness is included in the test of rational classification. In the second and third parts, The article points out that this connection, which has often been neglected in comments and decisions, could assist us to address certain conceptual problems that have arisen under Article 14 in the judicial review of state action. The Supreme Court’s “staggering” output on Article 14 precludes applying the standard technique of one-point study of all choices and then deriving a principle.

Background

Arbitrary derives from the Latin arbitrary, the arbitrator’s source; someone tasked with judging a matter. An arbitrary legal judgment is a ruling taken at the judge’s discretion, not a ruling. A ban on arbitrariness is enshrined in the constitution in some nations. Article 9 of the Swiss Federal Constitution theoretically overrides even democratic choices in banning arbitrary government action. The U.S. Supreme Court reversed legislation because they had “no rational basis”. A latest research of the U.S. asylum scheme indicates that arbitrariness in decision-making could lead to significant differences in results between distinct adjudicators, a phenomenon. Article 330 of the Russian Penal Code defines arbitrariness as a particular crime, but with a very wide definition of acts contrary to the legislation.

Article 14 and Non-Arbitrariness

Beginning with the text of Article 14 is both logical and intuitive. “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. The Court’s earliest judgments had a relatively coherent perspective of Article 14.[4] It is widely accepted that the first portion of the article which speaks of equality is a guarantee that no individual is above the law. This guarantee is affected by its corollary in the second portion which provides equal protection of the legislation to individuals.

The presumption that individuals are essentially equal is a powerful moral principle that is the anchor of this equality comprehension. However, it also includes a rule of rationality in relation to this moral principle. Any exception to equality is only permissible if the State has reasonable grounds for different treatment of individuals. Therefore, the validity of state action relies on an assessment of the reasons for state action. This is the vital connection in Article 14 between equality and rationality.

Test of Reasonable Classification and Non-Arbitrariness

The ordinary wording for reviewing state action pursuant to Article 14 is that sensitive classification must be tested. Its “intelligible differential” and “reasonable nexus” components are well known for the sort of experiment. What it checks at the heart of the test is whether, by evaluating why individuals are treated differently, the law makes an arbitrary classification. Therefore, the test involves both the moral principle that all people are basically equal and the rule of rationality that any classification must be justified by the State.

This point is often ignored in the discussion on the evaluation of Article 14 legislation since Seervai described the key issue in the discussion as a decision between a classification test and an arbitrary test. In reaction to the statement made by the Supreme Court in E.P. Royappa discovering a fresh dimension of equality based on non-arbitrariness, Seervai claimed that the traditional test did not involve finding that the law was “arbitrary.”[5] In the traditional test, which is obviously borne out by Supreme Court judgments, Seervai’s statement ignored the rationality element. Consider, for instance, the following paragraph in Charanjit Lal Chowdhury v. Union of India [6], probably the first case on the point:

“The legislature undoubtedly has a wide field of choice in determining and classifying the subject of its laws, and if the law deals alike with all of a certain class, it is normally not obnoxious to the charge of denial of equal protection; but the classification should never be arbitrary.”

The detachment from arbitrariness of the rational classification test has created significant confusion. It is now commonly thought that two separate, mutually exclusive lines of inquiry can be taken under Article 14 in any challenge to state action. The decision, it appears, is between the fresh arbitrary doctrine and the ancient classification doctrine. This difference overlooks the intersection region between the two tests.

Non-Arbitrariness and Equal Protection of the laws

The necessity for a reasonable classification under Article 14 in the earlier components. Nevertheless, this was never considered a sufficient condition for guaranteeing equality. This is evident from the values that Ramkrishna Dalmia v. Justice Tendolkar [7] had crystallized as soon as 1959:

1. “Where a statute itself makes the classification and the Court finds that the classification satisfies the test of reasonable classification, the court will uphold the validity of the law.
2. In cases where the statute does not make any classification but leaves it to the discretion of the Government to select and classify persons or things to whom its provisions are to apply, the statute must be shown to contain the principles that guide this discretion. If the law fails in this regard, the court will strike down both the law as well as the executive action taken under such law.
3. Lastly, where the statute lays down such principles, but the executive action fails to adhere to these principles, the executive action but not the statute should be condemned as unconstitutional.”

As is evident from the above, the guarantee of equality is not exhausted by a mere statement of classification validity. If the executive fails to behave in accordance with the law, Article 14 by its express words makes such activities unlawful. This is the impact of Article 14’s clause “Equal Law Protection”. In other words, a law is required under Article 14 to be non-arbitrary and, subsequently, each person is entitled to the fullest protection of the law in its application.

Faced with an instance of classification that deviates from the fundamental principle of equality, the objective must be to judge on the grounds of deviation state action. The reasonable classification test is best suited for doing the job since there is no normative justification for examining any other reason behind the state action. In such a situation, judicial review is limited to the factors supporting the classification in so far as non-arbitrariness is concerned. Where judicial review concerns the application of a law or executive policy to a class of individuals to whom it refers, the Court shall have the right to review such state action in complete to ensure that the person concerned is fully protected by the law. The nature of the assessment here is distinct in that the purpose of the assessment is to guarantee that, as the case may be, the execution of a law or policy is actually law or policy.

In the context of equality, this is the appropriate province for complete spectrum non-arbitrariness assessment. Such an understanding prevents the risk of generating an arbitrary standing test under which the Court freely reviews policy making.

In the face of an instance of classification that deviates from the fundamental principle of equality, the aim must be to judge state action on the grounds of deviation. The sensible classification test is best fitted to do the work as there is no normative justification for examining any other reason behind the state action. In such a situation, judicial review, in so far as non-arbitrariness is concerned, is limited to the factors supporting the classification.

Judicial Threshold for evaluating ‘Arbitrariness’: Rationality versus Reasonableness

The Supreme Court in Royappa has described the evolution of the arbitrariness test as the constitutionalization of administrative law. Khaitan argues that, “what the new doctrine has done is elevated an administrative law reasonableness standard into a self standing constitutional ground for review, without the need for any crutches in the form of other rights or values”.

If we examine the Supreme Court’s strategy under Article 14 in any type of arbitrariness assessment, it would show that there is a great deal of reality in this proposal. While this may be of grave concern to academics and scientists who insist that the two branches of public law be strictly separated, it is too late in the day to argue that such a binary is possible or even desirable in a contemporary state. As has been stated “The conceptual division between administrative and constitutional law is quite porous, and that along many dimensions, administrative law can be considered more constitutional in character than constitutions”.[8]

It would be worth seeking advice from administrative law instances using the reasonableness standard, having formed the administrative law basis of the new doctrine. It is interesting to note here that although the terms rationality and reasonability are often used interchangeably, it is possible to analyze a conceptual distinction between the two and the same to arrive at a theory of proper application of the doctrine of arbitrariness.

There are reasonable grounds to distinguish rationality from reasonableness on the basis that not every rational choice is reasonable. In the sense that they are made for intelligible reasons, almost all administrative decisions are rational, but the question is whether they meet the legal standard of reasonableness. Most obviously, irrational implies without reasons, while irrational’ means’ without adequate reasons.

Conclusion

In this article, I have tried to prove that the sensitive classification test has an element of non-arbitrariness that enables the assessment of state action to ensure that it is non-arbitrary from the point of view of equality. The debate on the choice between the old doctrine of reasonable classification and the new doctrine of non-arbitrariness overlooks the fact that the traditional equality test is part of non-arbitrariness.

Secondly, I have placed forward an interpretation of Article 14 which addresses some of the conceptual issues involved in understanding the scope of the non-arbitrary evaluation under Article 14. I argue that, when faced with state action that classifies people, judicial review must be limited to the variables behind classification. This test accommodates the assessment of non-arbitrariness to the extent needed by equality under Article 14. However, in the event of an instance of law enforcement within a class to which it refers, full spectrum judicial review is permitted as a person has the right to full protection of the rationality of the law.

References

1. Upendra Baxi, ‘The Myth and Reality of Indian Administrative Law’ in Massey (ed), Administrative Law (8th edn, 2012), xxviii
2. As in E P Royappa v State of Tamil Nadu (1974) 4 SCC 3 [85]
3. (2016) 2 SCC 445.
4. Chiranjit Lal v Union of India AIR 1951 SC 41; State of West Bengal v Anwar Ali Sarkar 1952 SCR 284.
5. Seervai (n 10) 441.
6. 1950 SCR 869.
7. (1959) SCR 279 [12].
8. Tom Ginsburg, “Written Constitutions and the Administrative State: On the Constitutional Character of Administrative Law” 117 (University of Chicago Public Law & Legal Theory Working Paper No. 331, 2010).

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In this article, Komal Kumari of Lloyd Law College, Greater Noida writes about the Press Council of India. The article focuses on the various aspects of PCI constituted in 1966 and amended in 1978. This article highlights the present situation of PCI as a safeguard to the freedom of the press.

Media is considered as the fourth pillar of democracy, it is the eyes and ears of this society and ideally perform the function of a moral watchdog of the public interests. Correspondingly, proving to be the interpreter between the public and different organs of our government. For the proper functioning of this organ, it has to be independent and should be able to withstand the outside pressure and influence i.e., political parties and various other powerful organizations. Here comes into play the press council of India with the object of preserving the freedom of the press and of maintaining and improving the standards of press in India. It is the autonomous, statutory quasi-judicial body which was first constituted on 4th July, 1966 and started functioning from November 16 of the same year (resulting in celebration of National Press Day on this date) by the Parliament on the recommendations of the First Press Commission under the chairmanship of Justice J.R Mudholkar (then a Judge of Supreme Court).

First Press Commission

When the nation was struggling for independence, majority of the National Press were contributing towards the freedom struggle against the British government but as soon as India gained independence the national press started lacking and losing its objective. The Editors and Owners of the press started thinking of it as a tool for their personal interest, an ample amount of defamatory articles were directed against communities or groups, of indecency, vulgarity and personal attacks on individuals. Moreover, some sections of the press were involved in yellow journalism. Therefore, raising a need to mark the status of the press in order to check their malpractices and to keep professional standards high. The first press commission was appointed with these objectives in 1952.

As Mahatma Gandhi said, “The sole aim of journalism should be service. The newspaper is a great power, but just as an unchained torrent of water submerges the whole countryside and devastates crops, even so, an uncontrolled pen serves but to destroy. If the control is from without, it proves more poisonous than want of control. It can be profitable only when exercised from within. If this line of reasoning is correct, how many journals of the world would stand the test? But who would stop those that are useless? and who should be the judge? The useful and the useless must, like good and evil. go on together, and man must make his choice.” 

Recommendations of the First Press Commission

The recommendation of the first press commission for the first time provided an idea of what a responsible press should be.

• For the protection of the freedom of the press and to maintain high standards of journalism, a Press Council should be established.
• For preparing the account of the press and the position of every year, there should be an appointment of the Registrar of Newspaper for India (RNI).
• For protecting the small newspapers from the fierce competition there’s a need for the introduction of a price-page schedule.
• Press Consultative Committee should be constituted for maintaining a cordial relationship between the government and the Press.
• Implementation of the Working Journalists Act.
• Establishment of a fact-finding Committee for evaluating the financial position of the newspapers and news agencies.
• Newspaper Financial Corporation should be constituted for protecting the main principles of the freedom of the press and to help the newspapers against monopolistic tendencies.
• Conversion of the Press Trust of India into a public corporation.
• Indigenization of both capital and the staff especially at the higher levels and it was highly desirable that proprietarily interests in the publication should vest predominantly in Indian hands.

Achievements of the First Press Commission 

The first Press Commission has some commendable achievements to its credit. The report provided various important measures regarding regulating the newspaper industry.

• Press Council of India was established in the year 1966 for regulating the press.
• Appointment of Registrar for Newspaper of India on July 1956 to prepare an account of the publications and titles.
• The price-page was scheduled in 1956 but was shot down in court.
• Press Consultative Committee was constituted in 1962.
• Working Journalists Act came into existence in 1955, the working journalists and other newspaper employees (conditions of services) and Miscellaneous Provisions Act were set up.
• Fact Finding Committee was set up on the financial position of the newspapers and news agencies which submitted its report on 14th January 1975.
• Newspaper Financial Corporation was accepted in principle and on 4th December 1970, a Bill was also presented in the Lok Sabha, which lapsed.

Composition of the Press Council of India

The 1965 Act provided for 25 members in the council which was changed to 28 members as per the act of 1978. The term of the Chairman and the members of the Council is 3 years.

Accordingly, it is a 28 member committee with the Chairman. The 28 members are as per the following diagram:

Chairmans of press council of India

Functions of the press council of India

The main functions of the Press Council of India as per the objectives of the Press Council Act, 1965, are as follows:

• Helping newspapers in maintaining their independence;
• Building up a code of conduct for journalists and newspapers according to the high professional standards;
• Ensuring that the newspapers and journalists maintain high standards of public taste and foster a due sense of both the rights and responsibilities of citizenship;
• Encouraging the growth of a sense of responsibility and public service among all those engaged in the profession of journalism;
• Reviewing any development which is likely to restrict the supply and dissemination of news of public interest and importance;
• Reviewing such cases where assistance has been received by any newspaper or news agency in India from foreign sources, as are referred to it by the Central Government;
• Promoting the establishment of such common service for the supply and dissemination of news to newspapers as may, from time to time, appear to it to be desirable;
• Providing facilities for the proper education and training of persons in the profession of journalism;
• Promoting the proper functional relationship among all classes of persons engaged in the production or publication of newspapers;
• Studying developments that may lead towards monopoly or concentration of ownership of newspapers, including a study of the ownership or financial structure of newspapers, and if necessary, to suggest remedies. 
• Promoting technical or other research.
• Doing such other acts as may be incidental or conducive to the discharge of the above functions.

Hence, the main function of the Press Council of India is to check the media practice and to keep an eye on freedom of the press. 

Powers of the Press Council of India 

Powers of the Press Council is given in section 14 and 15 of the Press Council Act, 1965. Powers to censure are given in section 14 and some general powers are described in section15.

Power to censure : Section 14 

This section provides that if a complaint is made to the council, the council would give the newspaper, news agency, editor or journalist concerned an opportunity of being heard and hold an inquiry as provided under the regulations of this act. The council would not entertain a complaint if in the opinion of Chairman there is no sufficient ground for holding an inquiry. But this section does not empower the council to hold an inquiry into any matter in respect of which any proceeding is pending in the court of law.

The decision of the council shall be final and shall not be questioned in any court of law.

General powers of the Council: Section 15

This section provides that for performing its function or for the purpose of inquiry, the council shall have the same powers throughout India as are vested in a Civil court while trying a suit under the Code of Civil Procedure, 1908. But, this cannot compel any newspaper, news agency, editor or journalist to reveal the source of any news or information published. Furthermore, every inquiry held by the council shall be deemed to be a judicial proceeding under sections 193 and 228 of the Indian Penal Code.

Press Council of India Complaint Procedure

U/S 14 of PCI:Complaint against newspaper, editor or journalist: A complaint with the Press Council can be filed by any person, if there is a breach of the recognized ethical standards of journalism by the publication or non-publication of a news-statement or article, cartoon, advertisement, etc which is published in a newspaper. The complainant firstly has to write to the editor of the newspaper drawing his attention towards what the complainant finds objectionable. This gives the editor the opportunity to deal with the matter and take the necessary steps as in many cases the facts are usually misinterpreted by the complainant, or there is an error which the editor is ready to admit and correct. If the Complainant is satisfied the matter ends here, but if he is not satisfied then he can take further steps which is to refer to the Press Council. The complaint should contain the name and address of the editor, journalist or newspaper against whom the complaint has been drawn along with this he has to state in what manner the particular news-article, statement, cartoon, advertisement, etc is objectionable within the meaning of Press Council Act,1978 and has to provide all the relevant particulars(copies of correspondence with the editor and a declaration that no proceedings are pending in any court of law).

As per the Press Council (Procedure for Inquiry) Regulations, 1979, the complaint has to be filed within two months in the case of dailies, news agencies, and weeklies. In all the other cases it has to be filed within four months.

U/S 13 of PCI

Complaint by a newspaper, editor or journalist regarding abuse to freedom of press: a complaint can be produced against the Government, Organization or any other individual encroaching on the freedom of the press. The complaint should contain all the details of the respondent as well as the alleged infringement and if the cause of action is a reprisal measure of any article, all the details need to be produced before the council.

As per the Press Council (Procedure for Inquiry) Regulations, 1979, the complaint has to be filed within four months from the date of cause of action, the Chairman can condone the delay if satisfied that a sufficient reason existed for such condonation. 

Press Council of India reconstituted

The PCI was reconstituted for its thirteenth term on 16 March 2018 for three year term but the names under the category of medium newspapers were not announced as the matter is sub-judice. 

Why is the category of medium newspaper sub-judice?

• The decision of PCI to reject the nomination of Hormusji N Cama (owner of Mumbai Samachar weekly and member of INS) and Kalyan Barooah in the category of medium newspaper as ineligible led to a huge outcry by the working journalists, editors and various media houses that the Chairman of PCI has done a biased selection while reconstituting the 13th term of PCI, he has simply overlooked the precedents and has adopted such a measure through which he can keep out certain candidates and media houses. They considered the act as a violation of the freedom of the press and had raised doubts regarding the neutrality of this institution.
• The Indian Newspapers Society moved the Delhi High Court regarding the decision of PCI on the rejection of the nomination of Cama. The HC has stayed the decision of PCI and has sought the response of PCI and the Ministry of I&B against the rejection of the mentioned nomination and also sought the response of Cama on this plea.

The Press Council Act, 1978 

The new legislation providing for the establishment of the Press Council was enacted in the year 1978 with the same objective of preserving the freedom of the press, maintaining and improving the standards of Press in India. The new Act brought a few structural changes:

• the body would now consist of 28 members,
• furthermore, it provided a new process for the selection of the Chairman, which is by a Committee consisting of the chairman of the Rajya Sabha, the Speaker of Lok Sabha and an individual elected by the members of the council from among themselves.

The best feature of this council is the procedure of nominating the Chairman and other members, based on the research and experience of the working of the Council. It has totally been a non-subjective procedure that does not allow the interference or influence of the Government, any agency or any individual, however eminent or highly placed he/she may be.

The objects of this Council are almost the same with that of the Act of 1965, two new functions that were added are: (i) Undertaking studies of foreign newspapers, including those brought out by any embassy or any other representative in India of a foreign state, their circulation and impact; and (ii) undertaking studies as may be entrusted to the Council and to give its opinion in regard to any matter referred to it by the Central Government. Whereas, some of the few functions which were a part of the previous Act were not included in this new Act as they were thought to be herculean for the Council to perform i.e., (i)Promoting the establishment of such common service for the supply and dissemination of news to newspapers as may, from time to time, appear to it to be desirable; (ii)Providing facilities for the proper education and training of persons in the profession of journalism; (iii) Promoting technical or other research.

The other functions remained the same as in the Act of 1965.

Press Council of India as a Safeguard of Press Freedom

“Freedom of the press is a precious privilege that no country can forgo” – M. K. Gandhi

Safeguarding the freedom of press was the first objective of the Council but it has failed to protect the same. There have been various threats to the freedom of press, in the form of pressurizing or intimidating them for the views expressed in paper, coercing newspapers from publishing facts, group raids on newspaper offices by unruly mobs, filing of motivated cases against a journalist for the sole purpose of harassing & victimization, browbeating by police and ministers,being slapped with hefty defamation suits, etc. This situation has gradually developed as a culture in India. The simple motto being used for infringing the freedom of the press is by ‘it won’t be possible for you to kill the story, but storyteller can be silenced or suppressed’.

According to the report of the Committee to Protect Journalism on ‘The global impunity index’, India has been ranked 14th on the list with 18 murders of journalists with impunity from 2008 to 2018. 

Reporters Without Borders (RSF) has listed India at 138th on its World Press Freedom Index in 2018, enumerating the fear that journalists are being the targets of online smear campaigns who not only vilify them but also threaten them with physical violence. These are the few cases of ruthless murders indicating the problem of silencing the journalists:

• The shooting of Gauri Lankesh: veteran journalist and editor, renowned for her criticism of right-wing extremism and communal violence was killed because of her Anti-Hindutva Stand.
• Navin Nischal of Dainik Bhaskar for reporting on child marriage.
• Sandeep Sharma for publishing stories on illegal sand mining and police corruption.
• Shujaat Bukhari for his reporting on the situation in Kashmir.

In order to protect the Democracy there a need to protect the independence of the press and furthermore serious actions are required to be taken in such cases.

References

1. https://www.mkgandhi.org/mass_media.htm
2. http://presscouncil.nic.in/
3. https://thediplomat.com/2018/11/journalism-in-india-a-dangerous-pursuit/

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This article is written by Sonali Chauhan, a student of Lloyd Law College, Greater Noida. The author, in this article, has discussed the concept of Torts to Domestic Relations. 

Domestic Relations is an evolving area of Tort Law dealing with the internal functions of a family. The evolution of Domestic Relations Tort has not only influenced the manner in which family members can collect as a result of tortious behavior for damages or interference with the family unit itself; it has influenced the manner in which husbands, wives, kids, and legal guardians are seen as legal entities.

Children and wives were originally regarded as chattels under common law and worked under the proprietary rights of a man. Several advances in family law in the 1900s provided for women and children’s legal rights to act as separate legal entities from their husbands/fathers.

Husband and Wife

In the case of husband and wife, the issue of personal liability can be dealt with two scenarios. First, the husband’s liability for wife’s torts and Second, the action between the husband and wife.

i) Husband’s Liability for Wife’s Torts

Under common law, a married woman could not sue any person for any tort in the earlier phase of development of tort, unless and until her husband joined her as a party to the plaintiff. In addition, a wife could not be sued without making her husband a defendant’s party.

These anomalies were removed by the legislative acts, i.e., The Married Women’s Property Act, 1882, and the Law Reform (Married Women and Tortfeasors) Act, 1935. After these acts, a wife may sue or be charged without making her husband a joint party to the suit.

However, if the husband and wife are joint tortfeasors, then they can be made jointly liable.

• Drinkwater v. Kimber, (1952) 2 Q.B. 281

This case, explains the point. There a lady was injured because of the combined negligence from her husband and a third party. She recovered the full amount of compensation from the third party. The third-party could not recover any contribution from the husband as the husband could not be made liable towards his wife for personal injuries. 

Regarding the contribution between the wrongdoers, the original rule in England was known as the rule in Merryweather v. Nixon. It stated that in the case of joint tortfeasors, the one tort-feasor who paid the full amount of damages for the wrongdoing could not claim contribution from the others.

The Law Reform (Married Women and Tortfeasors) Act, 1953 abolished this disability and enabled the joint tortfeasors to recover their contribution. The Law Reform (Husband and Wife) Act, 1962 has changed further and in this regard, the law has changed to the effect that when a spouse sues a third person, the latter can claim contribution from the other spouse who was a joint tort-feasor.

ii) Action between Spouses

At common law, there could be no action between husband and wife for tort. If the other spouse committed a tort, neither the wife could sue her husband nor the husband could sue his wife. The change has been brought up by the Married Women’s Property Act,1882 and permitted the married woman to sue her husband in tort for protection and security of her property. The property includes chose in action which is given in Section 24 of Married Women’s Property Act, 1882. 

As a wife could sue her husband only for the protection and security of her property, she could not sue her husband if he caused her personal injuries. Thus, if the husband damages her watch, she could sue for the same but if negligently fractured her legs, she could not bring any action for the same. The husband has no right for an action for any kind of harm caused by his wife to him.

• Curtis v. Wilcox [1948] 2 K.B. 474 (C.A.)

The defendant by his negligent driving injured the plaintiff, a passenger in his car. After the issue of her writ, claiming, inter alia, damages for pain and suffering, but before the hearing of the action, the plaintiff married the defendant. The defendant, in substance the husband’s insurance company, pleaded that the claim for general damages was barred by the marriage.

Oliver J. held that he was bound by the judgment of McCardie J. in Gottliffe v. Edelston [1930] 2 K.B. 378, and disallowed the claim for general damages. The Courts of Appeal (Scott, Wrottesely L.JJ., Wynn-Parry J.) in a considered judgment per Wynn-Parry J., allowed the appeal and overruled Gottliffe v. Edelston. They agreed with Mccardie J.’s view that a thing in action includes a right of action in tort, but they dissented from his decision that ‘thing in action’ as used to define separate property in the Married Women’s Property Act, 1882, Section 24, was used in a limited sense. Accordingly, a wife is now entitled to sue her husband for a purely personal antenuptial tort.

• Broom v. Morgan (1953) 1 Q.B. 597

In this case, it was held that if a husband committed a tort against his wife in the course of his employment of his master, the master was liable for the same. DENNING L.J. observed: “If the servant is immune from an action at the suit of the injured party owing to some positive rule of law, nevertheless the master is not thereby absolved. The master’s liability is his own liability and remains on him, notwithstanding the immunity of the servant. The rule prohibiting action between spouses has been abolished by the Law Reform (Husband and Wife) Act, 1962. Now, the husband and wife can sue each other as if they are unmarried. The Act, however, places a restriction on the action during the marriage by one spouse against another and the court has been given a power to stay the action if it appears that no substantial benefit will accrue to either party from the proceedings, or the case can be more conveniently disposed of under Section 17 of the Married Women’s Property Act, 1882. Under Indian law, personal capacity to sue and be sued in tort between husband and wife is governed by their personal laws, be they Hindus, Sikhs, Jains or Muslims. For Christians, the Married Women’s Property Act, 1874, removed various anomalies.

Furthermore, the Indian Constitution removes all anomalies of marital status and personal capacity present in common law. Article 14 embodies a guarantee against arbitrariness and unreasonableness, taking into account the case of Ajay Hasia v. Khalid Mujib (1983).

Parental and Quasi-parental Authority

Parents and persons in loco parentis have a right to administer punishment on a child to prevent him from doing mischief to himself and others. The law is that a parent, teacher, or other person having lawful control or charge of a child or young person is allowed to administer the punishment on him. Parents are presumed to delegate their authority to the teacher when a child is sent to the school.

Such an authority warrants the use of reasonable and moderate punishment only and, therefore, if there is excessive use of force, the defendant may be liable for assault, battery or false imprisonment, as the case may be.

In England, as per Section 1 (7), Child and Young Person’s Act, 1933 a parent, a teacher, or other person having lawful control or charge of a child or young person is allowed to administer the punishment on him.

• Cleary v. Booth, (1893) 1 Q.B. 465

Facts:

Booth (Defendant), a school headmaster, administered corporal punishment on two boys after learning that they had fought on the way to school. The defendant was charged with assault and battery and convicted for it. He appealed.

Held:

The authority of a teacher to correct his students is not limited only to the wrongs which the student may commit upon the school premises but may also extend to the wrongs done by him outside the school, for “there is not much opportunity for a boy to exhibit his moral conduct while in school under the eye of the master, the opportunity is while he is at play or outside the school”.

There is no question that, while at home, a child is under a parent’s authority. It is also clear that while at school, a child is under the head master’s authority. The question is under what authority the child is when he was on his way from home to school. Likely, the child may be said to be under the headmaster’s authority through the parent’s delegated duty. In that case, if necessary, the headmaster has the right to inflict punishment on the child in order to correctly raise the child. The authority of the headmaster extends not only to acts performed by children while they are at school but also on the way going to and fro from school to home. Here, the two boys were on their way to school when they are engaged in fighting. The defendant was well within his right to punish the boys.

• Eisel v. Board of Education (1991)

The Maryland High Court ruled that school counselors were negligent in not revealing their knowledge of a student’s threatened suicide to the child’s parents. The counselor’s negligence was not for failure to physically prevent the student’s suicide, but rather for not communicating information regarding the child’s intent.

Torts in the Family

In early family law, tort law acknowledged a comparable right to sue, comparable to secondary liability, where a superior can act on behalf of his/her inferior/subordinate. This application of property rights to family law cases enabled husbands and fathers to recover damages from tortfeasors for injury to family members.  A loss of “services” from his wife or child included the grounds on which a husband or father could recover for his family. Usually, the “services” included household duties such as cleaning, childcare, companionship, and other “marital responsibilities” that the wife or child no longer had.

Vicarious Liability

Despite the parties ‘ distinct legal identities, the court system retained the family unit as a collective identity. The family unit’s interests and relations are deemed to be proprietary to a certain extent and “by right.”  Any interference or action that alters, changes, infringes or threatens the family unit is therefore possibly a tortious interference in family law. Importantly, interference with family relationships between members of the respective family unit may occur.  For example, a husband may be liable for family-related interference with his wife and child’s relationships.

Interference with Family Relations

A particularly challenging subject of tort law is family torts in domestic relations. The reason for this is that the family structure itself and its functionalities are often at the core of the complainant’s and the defendant’s arguments.  Family torts may be associated with tortious action between husband and wife, or between parent and child. Tort in the family may also include vicarious liability and negligence on behalf of the parent or legal guardian for tortious actions committed by a minor under an adult’s legal guardianship.

Injuries to Family Members

Vicarious Liability is a secondary liability that accounts for the actions of its subordinate parties. Thus, torts raised against legal subordinates are vicariously transferred for litigation purposes to the superior party.  This usually means that in Domestic Relations tort, parents are responsible for tortious offenses committed by their kids. This Vicarious Liability also extends to legal guardians, who are vicariously liable for their juvenile wards ‘ tortious actions.

Immunity

Torts between parent and child now tend to revolve around the “parental discretion” concept that is left to review by the court. Usually, a jury is not justified to second guess the right of a parent to act for their own child in their judgment.  The idea of “parental discretion” is not absolute, however, a court may find a parent guilty of tortious behavior towards his or her child as a separate legal entity and may, therefore, find the parent liable. The same principle works for family torts for husband/wife, which warrants a certain amount of cause to infringe marriage confidentiality and pass judgment.

Conclusion

In the law, a tort is a civil wrong in which one person has infringed a duty owed to another person, where the duty arose because of the mere existence of the relationship. In a simple sense, torts are often the civil wrongs associated with a criminal wrong.

It can be duly established that marriage does not affect the rights and liabilities of any of the spouses in regard to any tort done by any of them by a third party.

The post Before you forget: brush your knowledge on Torts to Domestic Relations appeared first on iPleaders.

AIBE: Constitutional Law carries 5 marks as per the latest bar exam syllabus. Find and know about the intricacies of Constitutional Law for AIBE.

Part I – General features of the Indian Constitution, Fundamental Rights and Directive Principles 

AIBE: Constitutional law The Making of our Constitution 

• The Constitution was drafted by the Constituent Assembly, which was elected by the elected members of the provincial assemblies. 
• The Assembly met, in sessions open to the public, for 166 days, spread over a period of 2 years, 11 months and 18 days before adopting the Constitution. 
• The chairman of the drafting commission of the constituent assembly was Dr. B.R. Ambedkar and Dr. Rajendra Prasad was the chairman of the Constituent Assembly. 
• The Constitution, in its current form, consists of a preamble, 22 parts containing 448 articles, 12 schedules, 5 appendices – it is the longest written constitution of the world. 

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The Preamble and its features

The Preamble sets the goal and objectives that the constitution maker seeks to achieve. However, the preamble is not directly enforceable in the court of law, but has been relied on by the courts to interpret the provisions of the Constitution. The framers of the Indian constitution sought to achieve a sovereign, socialist, secular, democratic, republic. The word socialist and secular were added by the 42nd amendment to the constitution. 

• The preamble provides for three kinds of justice – social, economic and political. 
• Liberty of thought, expression, belief, faith and worship. 
• Equality of status and opportunity 
• It strives to promote fraternity assuring the dignity of the individual and the unity and integrity of the nation. 

The constitution was adopted on 26th November, 1949 as given in preamble but it came into force on 26th January 1950. 

Fundamental Rights (‘FRS’) 

 The fundamental rights are charter of rights that guarantees certain basic civil rights and freedom to all. However, these rights are not absolute. 

• A person can go to the court of law for enforcement of fundamental rights in case of its violation.
• During emergency, operation of all fundamental rights other than Article 19 is suspended.
• However, after 44th amendment, the right to move to the court for the enforcement of the fundamental rights given under Article 20 and 21 cannot be suspended.
• The fundamental rights are enforceable against the state and not against private individual.
• Article 12 of the constitution defines state as consisting of-  The Government and Parliament of India- Government means any department or institution of department. Parliament shall consist of the President, the House of People and Council of States, The Government and Legislature of each State, State Legislatures of each State consist of the Governor, Legislative Council and Legislative Assembly or any of them, Local Authorities within the territory of India  Authority means Power to make rules, bye- laws, regulations, notifications and statutory orders and power to enforce them. Local Authority means Municipal Boards, Panchayats, Body of Port Commissioners and others legally entitled to or entrusted by the government, municipal or local fund and Other Authorities

Classification of Fundamental Rights

Article 14 – Equality before law. 

• The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. 
• The state is under an obligation to take necessary steps so that every individual is given equal respect and concern which he is entitled to as a human being. 

Article 15 

• Article 15 prohibits discrimination on the grounds of religion, race, caste, sex or place of birth. 
• However, nothing in this article prohibits the state from making special provisions for women and children, socially and educationally backward classes or for the scheduled castes and scheduled tribes. 

Article 16 

• There shall be equality of opportunity for all citizens in matter relating to employment or appointment to any office under the state. 
• Nothing in this article shall prevent the state from reserving the seats in favour of any backward class, scheduled tribes and scheduled castes. 

Article 17 

• This article abolishes Untouchabilty and forbids its practice in any form. 
• This fundamental right can be implemented against individuals 

Article 18 

• Article 18 states that, no title, not being a military or academic distinction, shall be conferred by the state and no person from India shall accept any title from any foreign state. 
• No person who is not a citizen of India shall while he holds any office of profit or trust under the state, accept without the consent of the president any title from any foreign state. 

Right to Freedom: (Articles 19 to 22) 

• Article 19 provides- freedom of speech and expression, to assemble peacefully without arms ,to form associations and unions d) to move freely throughout the territory of India ,To reside and settle in any part of the territory of India. , To practice any profession or to carry on any occupation, trade or business. Originally, Article 19 guaranteed seven freedoms. The freedom to hold and acquire property was repealed in 1978. 

Article 20

Under Article 20, 

• No person shall be convicted of any offence except for violation of law in force at the time of the commission of the act charged as an offence. 
• No person shall be prosecuted and punished for the same offence twice- Principle of Double Jeopardy 
• No person accused of any offence shall be compelled to be a witness against himself- the prohibition against self-incrimination 

Article 21 

Article 21 provides that no person shall be deprived of his life or personal liberty according to the procedure established by law. 

• The scope of Article 21 has widened with time and it has been given multi dimensional interpretation. Article 21 includes many rights such as right to go abroad, right to privacy, right against solitary confinement, right against hand cuffing, right against delayed execution, right to shelter, right against custodial death, right against public hanging etc. 
• Right to life and liberty given under Article 21 is available both to citizens and non-citizens 
• Article 21-A was introduced by 86th amendment, 2002 and it provides for the free and compulsory education to children from 6 to 14yrs of age. So, right to be educated is now a fundamental right. 

Article 22 

• It provides that no person who is arrested shall be detained in custody without being informed as soon as possible the grounds for such arrest. 
• The arrested person shall not be denied the right to consult, or to be defended by a legal practitioner of his choice. 
• Under clause 2 of Article 22, every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of 24hrs of such arrest. 

Article 24 

– Under this Article employment of children below the age of 14 year in any factory, mine or other hazardous occupation is prohibited. 

Articles 25 to 28 – Right to Freedom of religion 

• Right to freedom of religion, covered in Articles 25, 26, 27 and 28, confers rights relating to freedom of religion on all persons of India. 
• Article 25-28 also protects religion and religious practices from state interference. India has no preferred or state religion and all religions are treated alike and enjoy equal constitutional protection. 

Cultural and Educational Rights: (Articles 29 and 30) 

• Articles 29 and 30 protect the rights of minorities. Any community which has a language and a script of its own has the right to conserve and develop it. 

Right to Constitutional Remedies(Article 32) 

• Any person whose fundamentals right is infringed can move to the Supreme Court for the enforcement of his fundamental right. 
• The Supreme Court is bound to issue appropriate writs for the enforcement of these rights. 
• The basic function of the writs is to protect the fundamental rights as guaranteed under Part III of the Constitution.
• The Supreme Court can issue 5 kinds of writs under Article 32.

Writ of Habeas Corpus

• The writ of Habeas Corpus means “produce the body” 
• It is a process by which a person who is confined without legal justification may secure a release from his confinement. 

Writ of Mandamus

• Mandamus is a judicial remedy which is in the form of an order from a superior court to any government, court, corporation or public authority to do or to forbear from doing some specific act which that body is obliged under law to do or refrain from doing, as the case may be, and which is in the nature of public duty and in certain cases of statutory duty 

Writ of Quo Warranto

• The object of the writ is to prevent a person who has wrongfully usurped an office from continuing in that office. 
• The writ calls upon the holder of the office to show to the court under what authority he holds the office. If the court determines that the incumbent is holding the office in question illegally, it would pass the order of ouster which must be obeyed by him. 

Writ of Prohibition

1. A writ of prohibition commands the court or tribunal to whom it is issued to refrain from doing something which it is about to do. It prevents a tribunal possessing judicial or quasi- judicial powers from assuming or threatening to assume jurisdiction which it does not possess. 2. The writ lies both for excess of jurisdiction and absence of jurisdiction. 

Writ of Certiorari

1. The writ of Certiorari is an order of the court issued to inferior courts, tribunals or authorities to transmit to it the record of proceeding pending with them for scrutiny and, if necessary, for quashing the same. 2. The writ of certiorari can be issued to a judicial or quasi-judicial body on the following grounds- want or excess of jurisdiction, violation of procedure or disregard of principles of natural justice, error of law apparent on the face of the record. 

The writs can be issued by Supreme Court under Article 32 and the High Court under Article 226. Article 32 is remedial and not substantive in nature. Dr. B.R. Ambedkar described it as the heart and soul of the constitution. 

Directive Principles and Fundamental Duties 

The Directive Principles of State Policy provide the guidelines for the framing of laws by the government. These principles are not enforceable by any court of law, but they are fundamental for the governance of the country. The government is duty bound to apply these principles while making laws. There are 20 Directive Principles laid down in our Constitution. 

List of directive principles 

Article 38- State to secure a social order for the promotion of the welfare of the people. 

Article 39- The state shall direct its policies towards securing adequate mean of livelihood to men and women equally, equal pay for equal work, prevention of concentration of wealth etc. 

Article 39A- The state shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or scheme. This provision of equal justice and free legal aid was introduced into the constitution by 42nd Amendment Act, 1976 

Article 40- It provides for organization of Village Panchayats. This directive principle was implemented via 73rd Amendment Act of the constitution which introduced Panchayats in Part IX of the Constitution. 

Article 41- Right to work, to education and to public assistance in certain cases. The state shall within the limits of its economic capacity and development, make effective provision for ensuring employment, education and public assistance in cases of unemployment, old age, sickness and disablement. 

Article 42- The state shall make provision for securing just and humane condition of work and for maternity relief. 

Article 43- This article requires the state to strive to secure to the worker work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities. 

Article 43-A- The state shall take steps to ensure by suitable legislation or in any other way, the participation of workers in the management of undertakings, establishments or other organizations engaged in any industry. This provision was introduced into the Constitution by the 42nd Amendment Act, 1976. 

Article 44- Uniform Civil Code. The state shall endeavor to secure for the citizens a uniform civil code throughout the territory of India. 

Article 45- The state shall endeavor to provide early childhood care and education for all children until they complete the age of 14 yrs. The right to education has now become a fundamental right under Article 21-A 

Article 46- The state shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the scheduled castes and tribes, and shall protect them from social injustice and all form of exploitations. 

Article 47- The state shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duty. 

Article 48- The state shall endeavor to organize agriculture and animal husbandry. 

Article 49- It shall be the obligation of the state to protect every monument or place or object of artistic or historic interest that is of national importance, from spoliation, disfigurement, destruction, removal, disposal or experts, as the case may be. 

Article 50- The state shall take steps to separate the judiciary from the executive in the public services of the state. 

Article 51- The state shall endeavor to promote international peace and security, maintain just and honorable relations between nations, foster respect for international law and treaty obligations, encourage settlement of international disputes by arbitration. 

Fundamental Rights vs. Directive Principles

Fundamental rights are guaranteed under the constitution and can be enforced by the court of law in case of its violation, i.e. they are justiciable. Directive principles only have persuasive value and are guidelines provided to the State and are not enforceable by court. 

List of Fundamental Duties

Part IV-A of the constitution introduced by 42nd Amendment Act, 1976 provides for the Fundamental duties given is section 51-A of the constitution. 

There are 11 fundamental duties. 

• To abide by the constitution and respect its ideals and institutions, the national flag and the national anthem.
• To cherish and follow the noble ideas which inspired our national struggle for freedom – To uphold and protect the sovereignty, unity and integrity of India.
• To defend the country and render national service when called upon to do so.
• To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;
• To value and preserve the rich heritage of our composite culture;
• To protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures.
• To develop the scientific temper, humanism and the spirit of inquiry and reform. – To safeguard public property and to abjure violence;
• To strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavor and achievements.
• Who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen yrs. This clause (k) was introduced by the 86th Amendment Act, 2002 of the constitution. 

The Judiciary

What is the role of the Judiciary in our country? How does it function? What are the levels in the Indian judicial system? Let’s start with the hierarchy of courts, beginning with the Supreme Court at the highest level. 

Supreme Court 

The Supreme Court of India is the highest court of the land as established by Part V, Chapter IV of the Constitution of India. According to the Constitution of India, the role of the Supreme Court is that of a federal court, guardian of the Constitution and the highest court of appeal. Article 124 provides for the establishment and constitution of the Supreme Court. 

Composition

• The Supreme Court of India comprises of the Chief Justice of India and not more than 30 other Judges appointed by the President of India. However, the President must appoint judges in consultation with the Supreme Court and appointments are generally made on the basis of seniority. Supreme Court Judges retire upon attaining the age of 65 years.
• In order to be appointed as a Judge of the Supreme Court, a person must be a citizen of India and must have been, for at least five years, a Judge of a High Court or of two or more such Courts in succession, or an Advocate of a High Court or of two or more such Courts in succession for at least 10 years, or the person must be, in the opinion of the President, a distinguished jurist. 

Jurisdiction

The Supreme Court has original, appellate and advisory jurisdiction. 

Original jurisdiction

Article 131 provides for the original jurisdiction in any dispute between the Government of India and one or more states, between the Government of India and any state or states on one side and one or more states on the other, and between two or more states. 

• Appellate jurisdiction- An appeal shall lie to the Supreme Court from any judgment, decree or final order of a high court in the territory of India, whether in a civil, criminal, or other proceedings, if the High Court certifies that the case involves a substantial question of law as to the interpretation of this constitution. 
• Advisory Jurisdiction- Under Article 143, if at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that court for consideration and the court may, after such hearing give its opinion to the president 

However the Supreme Court headed by Chief Justice of India is not bound to give opinion nor is the President bound to follow the advice given by the Supreme Court. 

Special leave to appeal by the Supreme Court

Under Article 136 the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. Article 136 confers a wide discretion on the Supreme Court to entertain appeals in the suitable cases not otherwise provided for by the constitution. 

Judicial Independence

What is judicial independence? How has the Constitution ensured independence of the Supreme Court judges? 

1. a) The function of the Judiciary is to protect the rights of Individual, solve the disputes between centre and state and interpret the constitution, making its Independence, a necessity. 
2. b) The provision for appointment, allowances and salary are provided in the constitution to ensure that legislation does not hamper the independence of Judiciary 

Power to punish contempt

Under Article 129 and Article 142 of the Constitution, the Supreme Court has been vested with power to punish anyone for contempt of any law court in India including itself. The Supreme Court is the highest court and it is necessary that everyone should abide by the orders of Supreme Court. To ensure that, constitution has made the provision to punish anyone for contempt of court 

Impeachment /removal of the judge

• Under Article 124, clause 4, a judge may resign from his office by writing under his hand addressed to the president.
• A judge of the Supreme Court can be impeached by an order of the president on the grounds of proven misbehavior and incapacity. But the president’s power is exercisable only after an address by both house of parliament, supported by a majority of total membership and majority of not less than two-third of the members present and voting. 

High Courts 

• Article 214 provides for the high court for the states. Article 215 provides that High courts will be a court of record.
• The constitution of High court- consists of a chief justice and such other judges as president from time to time appoint.
• Process of removal is similar to the process of removal of Supreme Court judges.
• A person to be eligible to be appointed as the High court judge should be citizen of India and- has for at least 10yrs held a judicial office in India or had for at least 10yrs been an advocate of High court
• Power of Superintendence- Article 227 provides that High court shall have superintendence over all courts and tribunals throughout the territories that come under that high court’s jurisdiction. 

Subordinate courts

• The control over the subordinate judiciary, including the power to transfer, maintain discipline and keep control over the judicial officials, is vested in the high court.
• The district judges are appointed by the governor in consultation with the high court (Article 233) 

The Union and the State Government 

Components of the Union Executive 

The Union executive comprises of the President, the Council of States (Rajya Sabha), and the House of People (Lok sabha) 

President

Article 52 provides that there shall be a President of India. The power conferred upon him shall be exercised either directly or through the offices subordinate to him. 

Qualifications for election as the President

• The candidate must be a citizen of India and less than 35 yrs of age. He must be qualified to be a member of Lok Sabha and he must not hold any office of profit. 

Who shall elect the President?

• President is elected by an electoral college consisting of elected members of both the houses of parliament and of the state legislative assemblies. 

Term of office of the President/ Removal

The term of the president is 5yrs and he is eligible to be re-elected. The president addresses his letter of resignation to the vice president. In case of the resignation, absence or death of the president, the vice president officiates his post. 

Powers and functions

• He appoints prime minister and on his advice, the council of ministers.
• He must be informed of all decisions of council of ministers
• He summons, prorogues and addresses the parliament.
• No bill can become a law without president’s assent. Except the money bill, president can return the other bill without signing for reconsideration.
• When two houses do not agree on the provision of the bill, he may summon them for a joint session.
• He may promulgate ordinance, when parliament is not in session.
• When the security of India is threatened he can proclaim emergency, he also promulgates the President’s rule as well as the financial emergency
• He appoints- Judges of Supreme Court, High Courts, Governors of States, Comptroller and Auditor General, Chief Election Commissioner, members of UPSC, Finance Commission, Inter State Council, Ambassadors and diplomatic representatives of India in abroad, etc.
• He is the supreme commander of the Indian Defense Force
• President has the special power to grant pardons, reprieve, respite or remission of punishment, or to suspend, remit or commute the sentence of any person convicted of any offence in all cases where the punishment or offence is by a court martial, where the punishment or sentence is for an offence against a law relating to a matter to which the union’s executive power extends and in cases of death sentence. 

Procedure for impeachment of the President

• President can be impeached for the violation of the constitution ( Article 61) 
• A resolution for his impeachment can be moved in either house of the parliament after a notice of 14 days that is signed by at least one- fourth of the total member of the house 
• Then the resolution has to be passed by two- third majority of the total membership of the house. 
• After that, the other house investigates the charge and if it adopts the resolution with two- third majority of the total membership, then the president stands impeached. 

Vice President 

• Vice president is the ex- officio chairman of the Rajya Sabha and he acts as the President in the absence of president and when the office of president lies vacant 
• During the period when he is performing the function of president, he ceases to be ex- officio chairman of Rajya Sabha. 
• He is elected by an electoral college consisting of members of both the houses of parliament. 
• He is elected for the term of 5 yrs and can be re- elected. 
• He can be impeached by a resolution adopted by a majority of members of Rajya Sabha and approval of this resolution by a majority of members of Lok Sabha. 

The matter relating to the election of President and Vice President shall be inquired into and decided by the Supreme Court whose decision shall be final. 

Prime Minister and Council of Ministers 

• The Prime Minister of India, in practice, is the most powerful person in the government of India. 
• Prime minister is appointed by the president. He is the leader of the majority party in the Lok Sabha and is the head of the council of ministers. 
• He is responsible for the appointment of council of ministers and allocation of work among them. 
• Council of ministers is collectively responsible to the lok sabha. 
• Prime minister is the chairman and spokes person of the cabinet. 
• His resignation would automatically amount to the resignation of the council of ministers 
• He co-ordinates government policy and acts as a channel of communication between the council of ministers and the president. 

Relationship between the Council of Ministers (headed by the Prime Minister) and the President 

• The council of the Minster headed by the prime minister shall aid and advice the president who shall in the exercise of his functions, act in accordance with such advice. 
• It shall be the duty of the prime minister to communicate all the decisions of council of ministers and to furnish such information as relating to the administration to the president. 

Lok Sabha 

• Lok Sabha consists of not more than 550 members elected directly by the people on the basis of universal adult suffrage. 
• 530 members are elected from state and 20 from the union territories by the system of direct election from territorial constituencies. 
• Council of ministers is responsible to Lok Sabha

Rajya Sabha 

• Rajya Sabha is the upper house of Parliament.
• The maximum strength of Rajya Sabha has been fixed at 250 members. Of these, 238 are elected representatives of states and union territories and 12members are nominated by the president from the field of literature, science, art and social services. 
• The seats are allotted among the various states and the union territories on the basis of population. d) The representatives of a state in Rajya sabha are elected by the elected members of the state legislature assembly. 

Functioning of the Lok Sabha and Rajya Sabha

• Speaker and deputy speaker are appointed for the functioning of the lok sabha. 
• Vice president is the ex- officio chairman of Rajya Sabha and carries out its functioning and in his absence, functioning of Rajya Sabha is carried out by Deputy Chairman. 
• No member of parliament shall be liable to any proceeding in any court in respect of anything said or any vote given by him in parliament; the members of parliament are immune from arrest in civil cases while the parliament is in session and for 40 days before and after. In criminal cases they cannot be arrested while house is in session. 
• Introduction of bills- Ordinary bill can be introduced both in Lok Sabha and Rajya Sabha, however a money bill cannot be introduced in Rajya Sabha and it has no power to amend or reject it. When the money bill is passed by the lok sabha, it is sent to Raja Sabha, if the Rajya Sabha fails to recommend it within 14 days, then the bill is considered to be passed by both the houses. 
• Rajya Sabha has two special powers, firstly it empowers parliament to make legislations with respect to matter given in the state list and it empowers parliament to create new All India Services. 
• Quorum- Minimum number of members required to be present for the functioning of the house of parliament, one-tenth of the total strength of the house is required for starting the session of the house of parliament. 

Introduction of bills in the Parliament 

• A bill to be passed as law can be introduced in either house of the parliament. However a money bill cannot be introduced in the council of the state. 
• The money bill deals with borrowings of the government of India, custody and maintenance of consolidated fund, contingent fund or public accounts of India. 

• A bill (except money bill) can be introduced in either house of the parliament and passes through various stages to become a law i.e. first reading, second reading, committee stage, report stage and third reading. After it is passed by one house of the parliament, it is sent to the other house and after it is passed from both the houses, it is sent to president for his assent and after president’s assent, it becomes the law. 

Dissolution of the house 

• The council of states (Rajya sabha) is not subjected to dissolution but one-third of its member retires every second year. 
• The house of the people unless sooner dissolved shall continue for 5 yrs from the date appointed for its first meeting. 
• During emergency, the term of the lok sabha can be extended by a year. 

Qualification for membership of Parliament 

• A person should be citizen of India to be elected as the member of either house of parliament. 
• He should not be less than 30yrs of age in case of Rajya Sabha and not less than 25 yrs of age in case of lok sabha. 

Disqualification of the Member of Parliament (Article 101) 

• Where a person is member of two houses of legislature. 
• A member is subject to disqualification( under Section 102) – if he holds any office of profit, if he is of unsound mind, if he is an undischarged insolvent, if he is not a citizen of India, if he is so disqualified by or under any law made by the parliament. 
• If a member of the house absents himself for 60 days without permission of the house. 

Attorney General of India

• Article 76 provides that president shall appoint a person who is qualified to be appointed as a judge of the Supreme Court to be Attorney- General of India. 
• The function of the Attorney General is to give legal advice to the Government of India on such matters as may be referred to him by the president, to perform such other duties of legal character conferred upon him by the President. 
• The Attorney General shall have right of audience in all courts in the territory of India. 
• The Attorney General shall hold office during the pleasure of the President. 

The State Executive 

• The state executive consists of governor and legislative assembly but States where there are two houses; the executive consists of governor, legislative council and legislative assembly. 
• The state legislature in Bihar, Maharashtra, Madhya Pradesh, Karnataka and Uttar Pradesh is bicameral. It consists of two houses i.e. legislative council and legislative assembly. In all other states, the state legislature is unicameral 

The Legislate Assembly

• The legislative assembly consists of members who are directly elected by the people from the territorial constituencies of the state on the basis of universal adult franchisee, once in 5 years. 
• In emergency, its life may be extended by a period of one year. 
• The minimum number of members in legislative assembly may be 60 at the minimum and 500 at the maximum. 

Functions of the legislative assembly 

• The state legislature performs similar function for the state as does parliament for the whole of India. 
• It makes laws, levies taxes, sanctions funds for the public expenditure. 

The Legislative Council

• The state can have a second chamber called the legislative councils. 
• The total membership of the legislative council cannot be less than 40 members or more than one- third of the total membership of the legislative assembly. 
• The members of legislative council are elected by- electorates consisting of members of municipalities, district boards; electorates consisting of graduates, teachers; members of the state legislative assembly; the remainder of the members are nominated by the governor from the field of literature, science, co- operative movement and social service. 
• The parliament may abolish the legislative council if a resolution to that effect with the majority of the total membership and majority of not less than two-third present and voting is passed by the concerned legislative assembly. 

Powers and Function of Governor 

• The governor is the chief executive of state. 
• The same person can be appointed as governor by the president for 2 or more states. 
• Power and function of governor are similar to that of the president.
• His function includes, appointment of chief minister and on his advice, council of ministers; promulgation of ordinance etc. All executive action of a state is taken in the name of the governor. 

Power and Function of Chief Minister 

• Chief Minister is the head of council of minister and is appointed by the Governor. 
• It is his duty to communicate to the governor of the state all decision of council of ministers and to furnish such information relating to the administration of the affairs of the state and proposals for legislation as the governor may call for. 

Advocate General of the State

• Advocate General of the state is the state counterpart of the Attorney General of India and is appointed by the Governor of the state. 
• It shall be the duty of the Advocate- General to give advice to the Government of the State upon such legal matter and to perform such other duties of legal character as may from time to time be conferred upon him by the governor. 

Distribution of power between Centre and State in Indian Federalism 

• In a federation, there is a division of power between the centre and the state governments. The distribution of legislative powers between the centre and the regions is the most important characteristic of federalism. 
• The Indian constitution shows a centralised tendency that is why it is known as Quasi Federal. 
• The Indian Constitution contains a very elaborate scheme of distribution of powers. The Indian Constitution provides with Union List, State List and Concurrent List, allocating an area of function to Union and State. 
• The parliament has an exclusive power to make laws with respect to matter given in Union List. The union list has 99 entries 
• The state has an exclusive power to make laws with respect to matters enumerated in State list. The state list has 66 entries. 
• Concurrent list deals with subject on which both Centre and State can make laws. The concurrent list has 52 entries. 
• Residuary powers- Central government has the power to form laws with respect to subjects which are not mentioned in any of the three lists. 
• Article 370 gives special status to the state of Jammu and Kashmir. 
• In Jammu and Kashmir, laws with respect to matter given in union list and concurrent list can only be made by the president by order in consultation with the state government. 

Comptroller and Auditor- General of India. 

• Article 148 provides for the Comptroller and Auditor general of India who shall be appointed by the President under his hand and seal. 
• He can be removed from office in like manner and on the like grounds as a judge of the Supreme Court. 
• The Comptroller and Auditor General (CAG) shall perform such duties and exercise such powers in relation to the accounts of the Union and the States and of any other authority or body as may be prescribed by or under any law made by the parliament. 

Constitutional Provisions for Amendment of the Constitution

Article 368 specifies the power of the Parliament to amend the Constitution and the procedure for the same.

Procedure for the Amendment of the Constitution

For the purpose of amendment the provisions of the Constitution fall under 3 categories. 

• Firstly, those that can be affected by a simple majority, required for the passing of an ordinary law. 
• Secondly, those that can be effected by a special majority of the total membership of each house of parliament as well as by the majority of not less than two-third present and voting as laid down in Article 368(2) 
• Thirdly, those that require, in addition to the special majority as described above, ratification by resolution passed by not less than one-half of the state legislature. 

Basic structure doctrine 

• The power of the parliament to amend the constitution is subject to the basic structure doctrine. 
• The notion of the basic feature of the constitution was given in the Keshavnanda Bharati v. State of Kerela case. 
• Features like supremacy of the constitution; republican and democratic form of the government; secular character of the constitution; separation of power between the legislature, executive and judiciary; federal character of the constitution; Sovereignty and territorial integrity of India, rule of law; Supreme Court’s power of judicial review, etc. forms the basic structure of the constitution. 

Emergency Provisions

Part XVIII of the constitution provides for the emergency provisions. 

There are three kinds of emergency: 

National Emergency (Article 352):

• If the president is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion, he may by proclamation, make a declaration to that effect in respect of the whole of India or of such part of the territory thereof as may be specified in the proclamation. 
• The word “armed rebellion” was added to the constitution via 44th Amendment Act, 1978 by replacing “Internal disturbance” as ground for emergency.
• While the proclamation of the emergency is in operation then the executive power of the Union extends to the giving of directions to any state as to the manner in which executive power thereof is to be exercised. 

During the period of Emergency, the legislature may make laws that are inconsistent with the rights guaranteed under Article 19; however, their validity cannot be challenged. Nonetheless, as soon as the proclamation of emergency ceases to operate, the legislative enactments which are in conflicts with the rights given under Article 19 becomes inoperative. During the operation of proclamation of emergency, enforcement through courts of all or any of the fundamental rights except those in Article 20 and 21 may be suspended by the president. 

Duration of emergency

The emergency provisions are intended to be resorted to in periods of grave national peril and must not be continued for any period beyond what is necessary. 

• Such a proclamation of emergency shall be laid before both houses of Parliament and shall cease to operate at the expiration of that period unless approved by resolution of both houses of Parliament.
• When the proclamation of emergency is laid before a house of parliament, it can- approve the proclamation by passing a resolution, take no action, reject or disapprove it.
• In case where both the houses pass the resolution, the proclamation shall remain in force for 6 months from the date of such resolution and may be extended by passing similar resolution at the expiry of every 6 months till it is revoked by the president either of his own or on a resolution of the House of the People disapproving the proclamation. – Where only one house approves of the proclamation, it shall cease to operate at the expiration of one month.
• If either house takes no action the proclamation shall expire after one month. If the proclamation has been disapproved by the house of people, the president must revoke it immediately. 

Breakdown of Constitutional Machinery (Article 356)

• Known as “president’s rule” – If the president, on receipt of report from the governor or otherwise, is satisfied that a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of the constitution, the president may by proclamation assume to himself all or any of the functions of the government of the state.
• Every proclamation issued under this article shall be laid before each house of parliament and shall cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolution of both houses of parliament. – the proclamation of emergency cannot continue for the period of more than one year from the date of issue of such proclamation unless certain special circumstances exists.
• Proclamation of emergency is in operation in the whole of India, or territory thereof or election commission certifies that the continuance of emergency is necessary on account of difficulties in holding general election to the legislative assembly of the state concerned. 

Financial Emergency (Article 360)

• If the president is satisfied that a situation has arisen whereby the financial stability or credit of India or any part of the territory thereof is threatened, he may by a proclamation make a declaration to that effect. 
• A proclamation issued may be revoked or varied by a subsequent proclamation, shall cease to operate at the expiration of two months, unless before the expiration of that period it has been approved by resolutions of both houses of parliament. – Financial emergency cannot be imposed in the state of Jammu and Kashmir because of its special status under Article 370. 

Elections 

• Article 324 provides for the election commission. 
• The elections to the house of parliament and to the legislature of every state and to the post of President and Vice-President are conducted by the election commission. 
• The election commission consist of chief election commissioner and such number of election commissioner as president from time to time appoints. 

Functions of election commission

• – Superintendence, direction and control of the preparation of electoral rolls
• – Conducting elections to parliament, state legislature, and to the office of president and vice president
• – Advising the president on the question of disqualification of any member of the parliament and advising the governor on the question of disqualification of any member of state legislature. 

Introduction to Panchayats and Municipalities Panchayats

• Provisions of Panchayats introduced by 73rd amendment to the constitution. 
• Part IX of the constitution provides for Panchayats. 
• Panchayats shall be constituted at the village, intermediate and district level. 
• Elections of Panchayats- conducted by state election commission. 
• Reservation of seats in Panchayats- the scheduled castes, scheduled tribes, women. 
• Power, authority and responsibilities of Panchayats- preparation of plans for economic development and their implementation.

Municipalities

• Part IX-A of the constitution provides for municipalities. 
• Constitution of municipalities- Nagar Panchayats for a transitional area, Municipal Council for smaller urban area, Municipal Corporation for a larger urban area. 
• Reservation of the seats- scheduled castes, scheduled tribes, and women. 
• Power, authority and responsibility of Panchayats – preparation and implementation of plans for economic development and social justice. 

Quiz on Constitutional Law- Emergency Provisions 

1.) What are the grounds for declaring a national emergency? 

A.) War, external aggression or armed rebellion 

B.) Natural disaster 

C.) Natural disaster 

D.) None of the above 

2.) Which constitutional article lays down the duty of the Union to protect States against external aggression and internal disturbances? 

A.) Article 355 

B.) Article 352 

C.) Article 359 

D.) Article 225 

3.) Which constitutional article deals with the failure of constitutional machinery (known as State Emergency) in States ? 

A.) 356 

B.) 258 

C.) 259 

D.) 260 

4.) Which constitutional amendment laid down that Fundamental Rights under Articles 20 and 21 of the Constitution are enforceable despite the operation of an emergency? 

A.) 44th Amendment Act 

B.) 46th Amendment Act 

C.) 45th Amendment Act 

D.) 48th Amendment Act 

5.) Whose assent is necessary for the extension of emergency in case of threat to the security of India? 

A.) Prime Minister 

B.) Home Minister 

C.) President of India 

D.) Vice-President of India 

6.) Who has the power to declare a financial emergency? 

A.) President 

B.) Prime Minister 

C.) Finance Minister 

D.) None of the above 

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Glance and go through the concepts of types of AIBE: Intellectual Property Protection viz. Copyright, Geographical Indicator, Patents, Trademark and Industrial Design with an extensive quiz.

Copyrights

• Copyright is a branch of intellectual property regime, that protects original works of an author. It is a natural right, and not a statutory right only. This means that a work is protected by copyright as soon as it is created. It need not be granted registration by the State to enjoy copyright protection. 
• The governing legislation is Copyright Act, 1957 

What constitutes a work for purposes of copyright 

Following works are protected under the Copyright Act- (Section 13) 

• artistic work including a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving, a photograph, a work of architecture or artistic craftsmanship, dramatic work,
• literary work (including computer programmes, tables, compilations and computer databases), o musical work (including music as well as graphical notation),
• sound recording, and o cinematograph film.

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Who is an author? 

• In relation to a literary or dramatic work, the author of the work; 
• In relation to a musical work, the composer; 
• In relation to an artistic work other than a photograph, the artist; 
• Relation to a photograph, the person taking the photograph; 
• In relation to a cinematograph film or sound recording, the producer; and 
• Section 17 holds that author is generally the first owner of copyright, subject to certain exceptions such as in case where the work is produced in the course of employment. Other exceptions are also listed in Section 17. 

Rights granted under copyright and Term of copyright protection 

• Section 14 lists out the basket of rights that a copyright holder enjoys, inter alia, reproduction, issue copies, translate, perform the work in public, communicate to public and assign. Under Section 14, basket of different rights are granted for different works. 
• The owner of the copyright in an existing work or the prospective owner of the copyright in a future work may assign to any person the copyright either wholly or partially and either generally or subject to limitations and either for the whole term of the copyright or any part thereof. (Section 18) 
• Section 22 provides that copyright shall subsist in any literary, dramatic, musical or artistic work published within the lifetime of the author until sixty years from the beginning of the calendar year next following the year in which the author dies. 
• The author is also granted a moral right in her work under Section 38B. This right subsists with the author even if the copyright is assigned to someone else. It is a right related to copyright, and not a part of thereof. 

Offences and Fair use 

• Section 51 gives the definition of infringement of copyright. It is infringement if a person does anything, the exclusive right to do which is by the Act conferred upon the owner of the copyright. 
• Section 52 gives a long list of activities which will not constitute infringement. These activities fall within the scope of ‘fair use’ 

Remedies 

• The Act provides both civil and criminal remedies to infringement. Chapter XII lays down the rules regarding civil remedies. These include injunction, damages, account of profits etc. If the defendant proves that at the date of the infringement he was not aware and had no reasonable ground for believing that copyright subsisted in the work, the plaintiff shall not be entitled to any remedy other than an injunction in respect of the infringement and a decree for the whole or part of the profits made by the defendant by the sale of the infringing copies as the court may in the circumstances deem reasonable. 
• Chapter XIII talks of the criminal offences. It is the criminal offence if a person knowingly infringes or abets the infringement of a copyright or any related right provided for under the Act. Such infringement is punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees. (Section 63) 
• Section 63A provides for enhanced penalty for second and subsequent convictions. 
• Other offences and their relative penalties are also listed in this chapter. 
• Section 71 allows for an appeal against the order of the court who tries the suit/complaint about infringement to the court to which appeals from the court making the order ordinarily lie, and such appellate court may direct that execution of the order stay pending disposal of the appeal. 

Quiz on Copyrights

1.) Which of the following terms is not defined under the Copyright Act, 1957? 

A.) dramatic work 

B.) originality 

C.) work of sculpture 

D.) reprography 

2.) What Section of the Copyright Act, 1957 allows for setting up the Copyright Office? 

A.) Section 6 

B.) Section 8 

C.) Section 9 

D.) Section 12 

3.) In which of the following works does copyright not subsist? 

A.) cinematographic film 

B.) sound recording, that is part of a cinematographic film 

C.) sound recording made as a part of a dramatic work 

D.) process of construction in case of work of architecture 

4.) Assignment of copyright must compulsorily be in writing 

A.) true 

B.) True only in case of literary work 

C.) Law is unclear 

5.) How long does copyright subsists in anonymous and pseudonymous works? 

A.) sixty years from the beginning of the calendar year next following the year in which the work is first published 

B.) forty years from the beginning of the calendar year next following the year in which the work is first published 

C.) twenty years from the beginning of the calendar year next following the year in which the work is first published 

D.) None of the above 

6.) When can a person apply to the Copyright Board for a licence to produce and publish a translation of a literary or dramatic work in any language? 

A.) Anytime 

B.) after a period of five years from the first publication of the work 

C.) after a period of seven years from the first publication of the work 

D.) Never 

7.) What Section of the Copyright Act, 1957 mandates registration of Copyright societies? 

A.) Section 20 

B.) Section 25 

C.) Section 28 

D.) Section 33 

8.) Broadcasters have been accorded a special right for what period of time under the Copyright Act? 

A.) 20 years 

B.) 25 years 

C.) 30 years 

D.) 60 years 

9.) Performers are granted “performer’s right” under the Copyright Act for what term period? 

A.) 30 years 

B.) 40 years 

C.) 50 years 

D.) 60 years 

10.) What Chapter of the Copyright Act provides the procedure and provisions regarding appeals? 

A.) Chapter XIII 

B.) XIV 

C.) XV 

D.) XVI 

Geographical Indications

What is the governing legislation 

• Many goods and services are advertised with the USP that they originate or belong to a certain geographical location. For instance, Tequila is tequila only if it comes from Mexico. 
• Such goods, along with their indications are protected within the Intellectual Property Regime via Geographical Indications. The law in India is regulated by Geographical Indications of Goods (Registration and Protection) Act, 1999. 
• Definition clause (Section 2) defines “geographical indication”, in relation to goods, as an indication which identifies such goods as agricultural goods, natural goods or manufactured goods as originating, or manufactured in the territory of a country, or a region or locality in that territory, where a given quality, reputation or another characteristic of such goods is essentially attributable to its geographical origin and in case where such goods are manufactured goods one of the activities of either the production or of processing or preparation of the goods concerned takes place in such territory, region or locality, as the case may be. 
• The governing authority for GIs is same is that of Trademarks. 

Who can apply? 

• Any association of persons or producers or any organization or authority established by or under any law for the time being in force representing the interest of the producers of the concerned goods, who are desirous of registering a geographical indication in relation to such goods shall apply in writing to the Registrar in such form and in such manner and accompanied by such fees as may be prescribed for the registration of the geographical indication. (Section 11) 
• Section 11 also lays down the application procedure. Section 16 holds that once the procedure specified under Sections 11 to 15 is followed and completed, the Registrar shall, unless the Central Government otherwise directs, register the said geographical indication. 
• For an already registered GI, a producer may apply to be registered as an authorised user of the GI (Section 17) 

Rights granted under GI 

• The registration of a geographical indication shall be for a period of ten years, which can be renewed from time to time (Section 18) 
• Like under trademark law, though there is no compulsion to register a GI; registration allows a person to institute any proceeding to prevent, or to recover damages for, the infringement of GI. However, nothing bars a claim of passing off. 
• Section 21 confers following rights on a GI holder-
• Right to obtain relief in respect of the infringement of the Geographical Indication.
• Exclusive right to the use of the Geographical Indication in relation to the goods in respect of which Geographical Indication is registered. o Two or more authorised users of a registered Geographical Indication shall have co-equal rights. 
• The GI law prohibits assignment, transmission, licensing, pledge, mortgage or any such other agreement in respect of a GI. (Section 24) 
• A GI cannot be registered as a trademark. 

Offences 

• Infringement takes place when a person other than the authorised user uses such GI by any means in the designations or presentation of goods that indicates or suggests that such goods originate in a geographical area other than the true place of origin of such goods in a manner which misleads the persons as to the geographical origin of such goods; or uses any GI in such manner which constitutes an act of unfair competition. 
• Chapter VIII gives other offences related to GIs and the respective penalties prescribed. 

Remedies 

• Both civil and criminal remedies are available under the Act. Chapter VIII deals with the latter. A court not inferior to Metropolitan Magistrate or Judicial Magistrate of the first class shall try an offence under this Act. (Section 50) 
• Civil remedies in a suit of infringement or passing off include injunction (subject to such terms, if any, as the court thinks fit) and at the option of the plaintiff, either damages or account of profits, together with or without any order for the delivery-up of the infringing labels and indications for destruction or erasure. (Section 67) 
• Criminal penalties are prescribed under Chapter VIII. 
• Section 26 imposes a limitation of five years on any action in connection with the use or registration of a trade mark from the date on which such use or registration infringes any geographical indication registered under this Act has become known to the registered proprietor or authorised user registered in respect of such geographical indication under this Act. 
• Any person aggrieved by an order or decision of the Registrar may prefer an appeal to the Appellate Board within three months from the date on which the order or decision sought to be appealed against is communicated to such person preferring the appeal. (Section 31) 

Industrial Design

Meaning and governing legislation 

• Industrial Design protection is provided for a shape, configuration, surface pattern, colour, or line (or a combination of these), which, when applied to a functional article, produces or increases aesthetics, and improves the visual appearance of the design, be it a two-dimensional or a three-dimensional article. 
• The governing legislation in India is Designs Act, 2000. 
• The Act defines “design” to mean only the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction or anything which is in substance a mere mechanical device, and does not include any trade mark as defined in clause (v) of sub-section (1) of section 2 of the Trade and Merchandise Marks Act, 1958 or property mark as defined in section 479 of the Indian Penal Code or any artistic work as defined in clause (c) of section 2 of the Copyright Act, 1957. 
• Section 4 prohibits registration of a design that is not original, has been disclosed public anywhere, is similar to an existing design or contains obscene matter. 

Who can apply? 

• Section 5 entails that a proprietor must apply for registration of a new design. As per Section 2 (j), a proprietor means- (i) where the author of the design, for good consideration, executes the work for 

some other person, means the person for whom the design is so executed; (ii) where any person acquires the design or the right to apply the design to any article, either exclusively of any other person or otherwise, means, in the respect and to the extent in and to which the design or right has been so acquired, the person by whom the design or right is so acquired; and (iii) in any other case, means the author of the design; and where the property in or the right to apply, the design has devolved from the original proprietor upon any other person, includes that other person. 

Design and Copyright 

• Section 15(1) of the Copyright Act explicitly prohibits copyright protection if a design is registered under the Design Act. Further, Section 15 (2) states that, if a design is capable of being registered under the Designs Act but the same has not been registered, such design will cease to have copyright protection as soon as an article to which such design is applied is reproduced more than 50 times by an industrial process. 
• Section 2(d) of The Designs Act excludes any artistic work as defined in Section 2(c) of the Copyright Act from the definition of ‘design’ under the Designs Act. 
• Hence, if a work is an artistic work under the copyright law, it cannot have any protection under the Designs Act, and if a work is eligible of being registered under the Designs Act, then that work will cease to have copyright protection as soon as an article with such work is produced more than 50 times. 

Rights granted 

• When a design is registered, the registered proprietor of the design shall have protection in the design for ten years from the date of registration, which may be extended for five more years on expiration. (Section 11) 
• The protection under Design Act is granted in the form of copyright over the design. Section 2 defines copyright as an exclusive right to apply a design to any article in any class in which the design is registered. 
• The proprietor of a registered design will have the same rights against the government as a patent holder. (Section 20) 
• The provisions of the Patents Act, 1970 with regard to certificates of the validity of a patent, and to the remedy in case of groundless threats of legal proceedings by a patentee shall apply in the case of registered designs in like manner as they apply in the case of patents. (Section 23). 

Offences and Remedies 

• Chapter V of the Act talks of legal proceedings. One such proceeding is for piracy of copyright in the design, which as defined by Section 22 includes applying design to any article for the purpose of sale, or importation of the article by any person other than the proprietor, or knowingly publish a fraudulent imitation of the design. 
• Reliefs include a fine of up to Rs. 25,000, damages and injunction. The total sum of recoverable cannot exceed Rs.50,000. 

Quiz on Industrial design

1.) A design that has been published in any other country can be registered under Designs Act, 2000- 

A.) true 

B.) True only for well-known designs 

C.) Can’t say 

D) No

2.) Who decides a question that arises with respect to what class an article would fall under (as under Designs Act, 2000)? 

A.) Controller 

B.) Registrar of Trademarks 

C.) Registrar of Patents 

D.) Intellectual Property Appellate Board 

3.) The period of protection under Design Act can be extended by how many years after the expiration of the original period? 

A.) Two years 

B.) Five years 

C.) Seven years 

D.) Ten years 

4.) What section of the Designs Act, 2000 allows a person to request information as to existence of copyright in an article? 

A.) Section 14 

B.) Section 15 

C.) Section 18 

D.) Section 25 

5.) Where does an appeal against the decision of Controller to cancel the registration of a design under Design Act, lie? 

A.) District Court 

B.) High Court 

C.) Intellectual Property Appellate Board 

D.) None of the above 

6.) In what court can a proceeding under Section 22 be instituted? 

A.) a court not below District Court 

B.) a court not below High Court 

C.) Intellectual Property Appellate Board 

D.) None of the above 

7.) What section lays down grounds for cancellation of registration of a design under the Design Act, 2000? 

A.) Section 15 

B.) Section 17 

C.) Section 19 

D.) Section 22 

8.) Where can the Controller apply in any case of doubt or difficulty arising in the administration of any of the provisions of the Designs Act, 2000? 

A.) Intellectual Property Appellate Board 

B.) Registrar of Trademarks 

C.) Central Government 

D.) None of the above 

9.) What is the maximum number of classes a design may be registered under (under the Designs Act, 2000)? 

A.) 1 

B.) 2 

C.) 3 

D.) 4 

10.) What section of the Designs Act, 2000 entails provisions regarding piracy of a registered design? 

A.) Section 15 

B.) Section 17 

C.) Section 19 

D.) Section 22 

Patents

• Patents is a system of intellectual property protection that seeks to protect an invention. The governing legislation in India is Patent Act, 1970, which was amended significantly in 2005. 
• The Act is divided into 23 chapters, and has 163 sections. Chapter I and II give the basic provisions as to patentability of inventions. 

What is an invention? 

• The Act lays down the pre-requisites of an invention under the definitional clause, Section 2 (j)- invention means a new product or process involving an inventive step and capable of industrial application. Thus, three requirements are set out here- new product, inventive step and industrial application. The three pre-requisites are defined under Section 2. 
• The Act, instead of listing out an inclusive lists for inventions that qualify as an invention; has a negative list under Section 3. Section 3 lays down all that is not patentable. The list includes, but is not limited to, computer software, plant and seeds variety, traditional knowledge, method of agriculture and anything contrary to established natural laws. 

Who may apply? 

• Section 6 provides that the inventor may make an application, either alone or jointly with another, or his/their assignee or legal representative of any deceased inventor or his assignee. 
• Chapter III and IV lay down the procedural requirements- the form of application, its contents and relevant dates, powers of Controller and the procedure to be followed while deciding an application. 

Rights granted under Patent law and Term of Patent Law 

• Section 48 grants exclusive rights a patentee to prevent others from making, using, offering for sale, selling or importing for those purposes that product in India; or in case the subject matter of the patent is a process, the exclusive right to prevent third parties, who do not have his consent, from the act of using that process, offering for sale, selling or importing for those purposes the product obtained directly by that process in India. 
• Section 117A provides for appeals to the Appellate Board. Sub-section (1) of section 117A makes it clear that no appeal will lie from any orders apart from those mentioned under sub-section (2) of section 117A. 
• Section 53 provides that the term of a patent shall be twenty years from the date of filing of the application for the patent. 

Offences Related to Patents 

• Chapter XX of the Act deals with various offences related to patent. These include, but are not limited to contravention of secrecy provisions laid down Section 35, falsification of entries in the register, unauthorized claim over patents, and infringing any right of the patentee. A suit for infringement cannot be instituted until the patent application is published (Section 45). Chapter XX lists out the penalties for the various offences. 

Compulsory licensing 

• Section 84 to 94 relate to compulsory licensing of patented products. A person may apply for a compulsory license three years after the grant of a patent if the reasonable requirements of the patent to the public have not been met, or the invention is not available at a reasonable price, or if the invention has not worked in India. Compulsory license may also be granted on notification by Central Government on exceptional circumstances related to public interest namely national emergency, extreme urgency example scarcity of petroleum products, earthquake etc, and public non-commercial use. 

Quiz on Patents

1.) Which of the following invention is patentable? 

A.) inventions relating to atomic energy 

B.) topography of integrated circuits 

C.) computer programme 

D.) micro-organisms 

2.) What section of the Patents Act entails provisions for publication of patent applications? 

A.) Section 11 

B.) Section 11A 

C.) Section 12 

D.) Section 14 

3.) Which of the following ground is not a valid ground for opposing a patent application under the Patents Act? 

A.) that the applicant for the patent or the person under or through whom he claims, wrongfully obtained the invention or any part thereof from him or from a person under or through whom he claims 

B.) that the subject of any claim of the complete specification is not an invention within the meaning of this Act, or is not patentable under this Act 

C.) that the complete specification does not disclose or wrongly mentions the source or geographical origin of biological material used for the invention 

D.) that the applicant is not a scientist of reputable standing 

4.) At what intervals will secrecy directions for inventions relevant for defence purposes be undertaken under the Patents Act? 

A.) Six months 

B.) Eight months 

C.) Twelve months 

D.) Twenty months 

5.) Which of the following is a not pre-requisite for applying for patents outside India under the Patents Act? 

A.) Written permit required from Controller 

B.) Invention should not be relevant to defence purposes or atomic energy 

C.) Invention should not be relevant to cause of poverty in India 

D.) an application for a patent for the same invention should have been made in India, not less than six weeks before the application outside India 

6.) What is the consequence of applying a patent outside India without fulfilling the requirements under Section 39 of the Patents Act? 

A.) Imprisonment of upto one year 

B.) Fine of upto 1 lakh rupees 

C.) Revocation of patent 

D.) Both (1) and (2) 

7.) What date is provided to the patent, once it is granted? 

A.) Date the patent is granted 

B.) date on which the application for patent was filed 

C.) Date the application was published 

D.) Date the application was made aware of the grant of patent 

8.) What section of the Patents Act lays down the rights granted to patentees? 

A.) Section 30 

B.) Section 35 

C.) Section 40 

D.) Section 48 

9.) How are rights divided between co-owners of a patent? 

A.) Both have an equal undivided share 

B.) The person who played a larger role in the invention will get a larger share 

C.) The poorer person gets the larger share 

D.) The person 

10.) Commission received by a Director from a company is salary, to be chargeable under the head ‘Income from Salaries’ under the Income Tax Act- 

A.) True, only if the director is an employee of the Company 

B.) True, only if the salary is above 40 lakhs 

Trademarks

• Trademarks law governs and protects distinguishing marks which can distinguish goods and services of one trader from those of another. Indian law of trademarks is governed by Trademarks Act, 1999. 
• As per Section 2 (zb), “trade mark” means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours. 
• “mark” is defined to include a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof. (Section 2(m)) 
• Section 7 of the Act lays down provisions regarding Classification of Goods and Services and provides that the Registrar shall classify goods and services in accordance to the International Classification of Goods and Services for the purpose of registration of trademark. Hence, the Trademark Registry has classified the goods and services in accordance with 10th edition of Nice Classification of Goods and Services. 

Grant of Trademark 

• Any person claiming to be the proprietor of a trade mark used or proposed to be used by him, who is desirous of registering it, may apply for its registration by an application in writing to the Registrar. (Section 18) 
• Section 9 entails provisions for an absolute refusal of registration of trademarks. Thus, trademarks that are devoid of any distinctive character, that is to say, not capable of distinguishing the goods or services of one person from those of another person or which consist exclusively of marks or indications which may serve in trade to designate the kind, quality, quantity, intended purpose, values, geographical origin or the time of production of the goods or rendering of the service or other characteristics of the goods or service, are not registrable. 
• In contrast to above, Section 11 lays down relative grounds for refusal of registration of trademarks. These include factors such as if the applied for trademark resembles an existing one, or if its use is limited because of an existing copyright, if another sign is a well-known trademark. 
• Once the application is made and the procedure completed as prescribed under Chapter III of the Act, the Registrar will register the trademark unless Central Government directs otherwise. (Section 23) 

Rights granted 

• A trademark once registered, enjoys protection for ten years, which can be renewed upon expiration. (Section 25) 
• Registration of trademark allows a person to institute proceedings to recover damages for infringement of trademark. Without registration, only a suit for passing off can be instituted. 

Offences and Remedies 

• A registered trademark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which is identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark. (Section 29) 
• The Act contains provisions for setting up the Intellectual Property Appellate Board. Any person aggrieved by an order or decision of the Registrar under this Act, or the rules made thereunder may prefer an appeal to the Appellate Board within three months from the date on which the order or decision sought to be appealed against is communicated to such person preferring the appeal. (Section 91) 
• Chapter XII lists out the penalties for various offences related to trademarks. 

Quiz on Trademarks

1.) How long does trademark protection last? 

A.) 20 

B.) 60 

C.) Perpetuity 

D.) 10 years and renewal upon expiration 

2.) What must a plaintiff prove in a successful trademark infringement case? 

A.) Defendant infringed plaintiff’s mark 

B.) Defendant used the mark in an unauthorized manner 

C.) The use of the mark is likely to cause confusion or deception of the public as to the origin 

D.) All of the above 

3.) What does Trademark law seek to protect? 

A.) Words, symbols, devices that differentiate goods or services from one another 

B.) Only brand names 

C.) Names of specific people and processes 

D.) Inventions that posit some kind of utility function 

4.) St. Ives Laboratories produces beauty products under the mark, “St. Ives”. Another cosmetic company starts to produce similar products with the mark, “Mt. Ives” attached to it. As a judge, what should be the outcome of this dispute, as decided with reference to the Trademark law in India? 

A.) It should be allowed since the first words of the marks are distinctly different 

B.) It should be disallowed due to the phonetic and conceptual similarity between the two marks 

C.) It should be allowed because the consumer may be able to spot the difference 

D.) None of the above 

5.) Under Indian legal framework, a trademark can be claimed by- 

A.) The person who uses a trademark through the TM symbol 

B.) The person who first registers a trademark with the Trademark Office 

C.) The person who first uses a trademark 

D.) None of the above 

6.) Trademark must be registered in order to be protected 

A.) true 

B.) True, but only for international trademarks 

C.) The position is unclear under the law 

7.) A permitted user of the trademark, as defined under (2) (1) (r) (ii) of the Trademarks Act has no right to institute proceedings for infringement of trademark- 

A.) True, if he is also the registered user 

B.) True, if the permitted user has violated any condition of use of the trademark 

https://www.lawsikho.com/mock_tests/14261/question_paper 1/8 

11/6/2017 LawSikho 

C.) True. This is what the Trademarks Act explicitly provides for 

8.) As per the Trademarks Act, 1999, the Chairman of the Intellectual Property Appellate Board must possess what qualifications? 

A.) She is, or has been Judge of a High Court 

B.) She has, for two years, held the office of Vice-Chairman 

C.) Either (1) or (2) 

D.) None of the above 

9.) What is the prescribed period of imprisonment provided under Trademarks Act, 1999 for falsely representing a trademark as registered? 

A.) Maximum 2 years 

B.) Maximum 3 years 

C.) Maximum 4 years 

D.) None of the above 

10.) What is the prescribed period of imprisonment provided under Trademarks Act, 1999 for falsification of entries in the Register? 

A.) Maximum 2 years 

B.) Maximum 3 years 

C.) Maximum 4 years 

D.) None of the above 

11.) Which of the following is not a kind of work protected by the copyright regime in India? 

A.) A software 

B.) Name of a company 

C.) Notes in a symphony 

D.) a work of architechture 

12.) Which of these is a condition required to be satisfied by a work in order to be copyrightable in India? 

A.) usefulness 

B.) originality 

C.) literary worth 

D.) profitability 

13.) As per The Copyright Act, 1957, a copyright cannot subsist in any work which is registered under – 

A.) The Patents Act, 1970 

B.) The Designs Act, 2000 

C.) The Trademarks Act, 1999 

D.) Different IPRs cannot co-exist for the same subject-matter in India 

14.) What is the duration of a copyright protection in the Indian system? 

A.) Lifetime of the author + 20 years 

B.) 20 years 

C.) Lifetime of the author + 60 years 

D.) 60 years 

15.) Which of the following does not qualify as a ‘fair use’ of the copyrighted work as per Section 52 of The Copyright Act, 1957? 

A.) reproduction in a magazine of an article on a current political topic whose author has author has expressly reserved the right of reproduction to himself 

https://www.lawsikho.com/mock_tests/14261/question_paper 2/8 

11/6/2017 LawSikho 

B.) performance of a dramatic work by an amateur club for the benefit of a religious institution 

C.) causing a sound recording to be played in public for the non-profitable activities of a club 

D.) None of the above 

16.) Which of the following categories of work does not require any fulfilment of the requirement of ‘originality’ to be copyrightable as per The Copyright Act, 1957?A.) artistic work 

B.) dramatic work 

C.) cinematographic films 

D.) musical work 

17.) Does The Copyright Act, 1957 prescribe any remedy for the author who has already wholly assigned his copyright in a work if that work is later mutilated by the assignee herself? 

A.) Yes, for all works 

B.) Yes, but only for artistic work 

C.) Yes, but only for literary work 

D.) No 

18.) Would making an exact drawing of a 3-D copyrighted work would be considered copyright infringement? 

A.) Yes, but only if the author has registered his copyright 

B.) Yes, but only if the work benefits public 

C.) Yes, in all situations 

D.) No 

19.) Author is the always the first owner of copyright 

A.) True, in all circumstances 

B.) True, unless the author is dead 

C.) True, subject to the exceptions provided under the Copyright Act 

20.) What section of the Copyright Act, 1957 lays down the list of criminal offences related to copyright? 

A.) Section 60 

B.) Section 63 

C.) Section 64 

D.) None of the above 

21.) Which of the following would not come under the definition of industrial design? 

A.) Sketch of a new garment by a fashion designer 

B.) Exhaust Pipes of cars based on a specific model 

C.) Special buttons for a specific line of designer wear 

D.) Posters made for sale in a chain of pop culture stores 

22.) Which among the following is an essential for registering an industrial design? 

A.) Originality of idea 

B.) Design can be similar to another design from the same author, as long as there is a small perceptible difference in the two 

C.) Novelty 

D.) Both (1) and (3) 

23.) Protection under the Designs Act is given for a duration of 

A.) 10 years from the date of registration extendable for another term of 5 years 

B.) 15 years from the date of registration extendable for another term of 7 years 

C.) 10 years from the date of registration extendable for another term of 10 years 

D.) 20 years from the date of registration extendable for another term of 5 years 

24.) An industrial design is concerned only with the ornamental or aesthetic aspects of a product and not its function or performance 

A.) true 

B.) True, in case of international products 

C.) Law is unclear on the topic 

25.) Securing an IMark from the India Design Council is a prerequisite to registration of a design under the Designs Act 2000 

A.) true 

B.) True, in case of specified products 

C.) Law is unclear on the topic 

26.) What provision of the Design Act, 2000 defines a ‘design’? 

A.) Section 2(b) 

B.) Section 2 (d) 

C.) Section 3 

D.) Section 4 

27.) Which of the following are not permitted to apply for registration of a design under the Design Act, 2000? 

A.) A person who has acquired the design 

B.) a person for whom the design has been developed by the author 

C.) a person on whom the design has devolved 

D.) A person who inspired the design 

28.) It is mandatory to have a prototype before applying for registration of the design under the Design Act, 2000 

A.) Yes, in all cases 

B.) Yes, but only in case of a design which benefits public 

C.) No 

D.) Law is unclear on the topic 

29.) What is the maximum period allowed for removal of objections after filing of application for registration of design under Design Act? 

A.) Six months 

B.) Six months, that can be extended for a further period not exceeding three months provided a request in Form-18 is filed before the expiry of initial six months 

C.) Eight months 

D.) Eight months, that can be extended for a further period not exceeding three months provided a request in Form-18 is filed before the expiry of initial six months 

30.) Who grants the registration of design under Design Act? 

A.) Office for Industrial Designs 

B.) Patent Office 

C.) Intellectual Property Board 

D.) None of the above 

31.) Which of the following may have GIs? 

A.) Agricultural products, food stuffs, wine and spirit drinks 

B.) Handicrafts 

C.) Industrial products 

D.) All of the above 

32.) The rights arising from a GI are- 

A.) The rights-holder can prevent the use of the GI by a third party whose product doesn’t conform to the applicable standards. 

B.) The rights-holder can prevent a third party from using the same techniques as those set out in the standards for that indication. 

C.) Both 

D.) Neither 

33.) In India, registration of GIs for protection is- 

A.) Mandatory 

B.) Not mandatory because an unregistered GI can also be enforced by initiating an action of passing off against the infringing party. 

C.) No such provision exists since there is no sui generis system of protection. 

D.) None of the above 

34.) The sale of tea under the brand name ‘Darjeeling Lounge Specials’ may constitute an infringement under the Geographical Indications of Goods (Registration and Protection) Act, 1999 

A.) true 

B.) True, only if the brand symbol is similar to an existing one 

C.) The position is unclear under the law 

35.) Can an action be instituted to recover damages for infringement of an unregistered GI under Geographical Indications of Goods (Registration and Protection) Act, 1999? 

A.) Yes, but only if it is a registered trademark 

B.) Yes, but only if the action is bona fide 

C.) No 

D.) The position is unclear under the law 

36.) A registered trademark in the usual course can be simultaneously registered as a geographical indication (‘GI’) 

A.) true 

B.) True, if the trademark benefits the public 

C.) Can’t say 

37.) It is infringement of GI if another mark is used in a manner that constitutes an act of unfair competition including passing off in respect of registered geographical indication. 

A.) No, it would be an offence only under Competition Act 

B.) No, it would be an offence only under Trademarks Act 

C.) Yes 

D.) Can’t say 

38.) A right in a registered GI cannot be- 

A.) assigned 

B.) licensed 

C.) mortgaged 

D.) All of the above 

39.) What happens to the rights in a registered GI on death of its auhorised user? 

A.) The GI is dissolved. No one owns the GI 

B.) The right goes to the State 

C.) The right shall devolve upon the successor of the authorised user 

D.) It will be decided by the Trademarks Office 

40.) What is the maximum period within which an aggrieved person can file an appeal against the decision of the Registrar under the Geographical Indications of Goods (Registration and Protection) Act, 1999? 

A.) Three months 

B.) Three months, unless sufficient cause to extend this 

C.) Four months 

D.) Four months, unless sufficient cause to extend this 

41.) Which of the following qualifies as non-patentable subject-matter in India? 

A.) inventions relating to atomic energy 

B.) methods of agriculture or horticulture 

C.) mere scheme or rule or method of playing games 

D.) all of these 

42.) Which of the following constitutes one of the ingredients of “invention” as per The Patents Act, 1970? 

A.) literary advancement 

B.) furtherance of public interest 

C.) industrial application 

D.) both (b) and (c) 

43.) Which of these is not a condition required to be satisfied by an invention in order to be patentable? 

A.) novelty 

B.) non-obviousness 

C.) profitability 

D.) usefulness 

44.) Which of the following has not been expressly categorised as non-patentable by The Patents Act, 1970? 

A.) mathematical or business method or a computer program per se algorithms 

B.) any process for medicinal or surgical treatment of human beings to render them free of disease 

C.) any process of manufacturing of any pharmaceutical products for human beings 

D.) a literary, dramatic, musical or artistic work including cinematographic works and television productions 

45.) What is the duration of a patent in the Indian system? 

A.) 60 years 

B.) 10 years 

C.) 25 years 

D.) 20 years 

46.) According to the semantics used in The Patents Act, 1970, a patent protects – 

A.) an idea 

B.) an expression 

C.) an invention 

D.) a discovery (of naturally-occurring substances) 

47.) Does The Patents Act, 1970 contain any provision to facilitate access to medicines that are protected by a patent? 

A.) Yes, only after patent is atleast 5 years old 

B.) Yes, only after the patent holder has made profits of at least 50 lakhs on account of the patent 

C.) Yes, government can acquire any patent for public purposes 

D.) No 

48.) Which of the following is patentable under the Indian laws? 

A.) A new drug that removes one side effect of the older one 

B.) A terminator gene technology 

C.) Method of learning a language 

D.) A vaccine 

49.) What court has the jurisdiction to make a declaration as to non-infringement of a patent? 

A.) A court not inferior to a district court having the jurisdiction 

B.) A court not inferior to a High Court having the jurisdiction 

C.) Intellectual Property Appellate Board 

D.) None of the above 

50.) What is maximum prescribed period of imprisonment for falsification of entries in the Register under the Patents Act, 1970? 

A.) 2 months 

B.) 3 months 

C.) 4 months 

D.) 5 months 

Answer Key of Quiz to Trademarks

1.) D 2.) D 3.) A 4.) B 5.) B 6.) 7.) C 8.) C 9.) B 10.) A 11.) B 12.) B 13.) B 14.) C 15.) A 16.) C 17.) A 18.) C 19.) C 20.) B 21.) A 22.) D 23.) A 24.) A 25.) 26.) B 27.) D 28.) C 29.) B 30.) B 31.) D 32.) A 33.) B 34.) A 35.) C 36.) 37.) C 38.) D 39.) C 40.) B 41.) D 42.) C 43.) C 44.) C 45.) D 46.) C 47.) C 48.) D 49.) A 50.) A 

Find the ultimate guide to constitutional provisions for All India Bar Exam here.

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This article is written by Sonali Chauhan, a student of Lloyd Law College, Greater Noida. The author in this article, has discussed the concept of Sources of Tort.

Introduction

Tort law is a body of law that addresses and provides remedies for non-contractual acts of civil wrongdoings. A person suffering legal damage may be able to use tort law to receive compensation for those injuries from someone who is legally responsible or liable. In general, tort law defines what constitutes a legal injury and sets out the circumstances under which one person may be held liable for the injury of another. Tort law spans acts that are intentional and negligent. The three purposes of the tort law. The first is compensating the victim, the second is punishing the wrongdoer and the third is deterring harmful activities.

What is a Tort?

The tort is a French word, meaning “wrong”[Latin tortus: “twisted”].

In the criminal law system, nearly every tort is mirrored, though separate terminology is deployed. The difference between these two law branches is that criminal cases are perceived as a crime against the whole of society. Subsequently, a governing body, as in England, the Crown, or some level of the court system in America, decides on a defendant’s guilt and sentence.

Thus, in the form of one of these entities, a criminal defendant is sued by the state; if found guilty of the charged crime, he will be sentenced to whatever penalty is deemed justified.

On the other hand, civil laws, known as torts, will allow one person to sue another. If the plaintiff prevails, a court order will be issued to the defendant (tortfeasor) to do or refrain from doing whatever act brought this case to court. If deemed appropriate, the defendant may also be compelled to pay the plaintiff monetary damages, similar to a fine ordered in a criminal court.

Different Verdict by these Separate Courts

The famous criminal case of 1995 showed this sort of divergence, usually dubbed People vs O.J. Simpson. Here, a criminal jury acquitted the sports icon Orenthal James Simpson, accused of murdering his former spouse Nicole Brown-Simpson, and waiter Ron Goldman.

The Brown and Goldman families, however, brought a civil suit against O.J. in 1996. Simpson. The jury found him liable here for causing the wrongful deaths of these two victims and awarded $33.5 million to the plaintiffs.

Furthermore, while a criminal court requires a belief in guilt beyond a reasonable doubt as a standard of proof that the civil burden of proof is less stringent, based on clear and convincing evidence, or a high probability. Just as tort law changes ‘murder’ to wrongful death’, ‘ liability’ to  ‘guilt’.

Origin of Tort Law

Prior to 1066, the French William the Conqueror’s of Norman conquest of England, the legal system was somewhat haphazard, carried out on  case-by-case basis more or less. After 1066, in order to absorb those village laws that had developed over two centuries, eminent judges were delegated to travel about a given region. These judges, benefiting from this information, noted and implemented precepts that they considered most fair-minded in their own court findings. In time, these cases became what is now called legal precedents when referred to often enough.

The law of Tort came to India, through England. After the Norman Conquest, French became the spoken language in England’s judiciary and thus many of the English law’s technical terms owe their origin to French and tort is one of them. The term ‘tort’ is based on the concept that there are certain rights for everyone in society. The purpose of this tort law to enforce rights and duties.

Sessions during which these judges conducted trials were dubbed ‘assizes’ or, in modern terms, ‘sittings’. The place from which a judge makes verdicts and sentences is called ‘ the bench ‘ even now. Once these precedents were established, they were intended to apply equally to every member of society, from a lord to a serf, resulting in the term common law.

In the 14th century, the word ‘negligenter’ appeared in writs of trespass to denote neglectful conduct.

•  Cok v Durant [1377], Calendar of Plea and Memoranda Rolls 1364-81, 235:               No reference to an undertaking, but London’s custom required everyone to keep his fire safe so that his neighbor was not injured. Note the use of the word “neighbor”: in the tort of negligence has a particular resonance.
• Beaulieu v Finglam [1401], Baker & Milsom, Sources of English Legal History, 557: First reference to “real custom.” Note the use of the term “custom”: ideas of custom, tradition, and precedent are all essential to common law ideology and practice.

Negligence: the most significant tort of 20th and 21st centuries; “negligent” behavior also describes behaviors that attracts liability in other torts.

Case Laws

The tort is essentially a common-law area developed in court by judges (although the statute is relevant), often in response to social, economic conditions and social values.

• Lord Steyn in Chester v Afshar [2004] UKHL 41 : “The result is in accord with one of the most basic aspirations of the law, namely to right wrongs. Moreover, the decision…reflects the reasonable expectations of the public in contemporary society”.

• MacDonald J., in Nova-Mink v Trans-Canada Airlines [1951] 2 DLR 241: “There is always a large element of judicial policy and social expediency involved in the determination of the duty problem, however it may be obscured by the traditional formulae”.

2 quotations from Lord Mansfield (Chief Justice of the King’s Bench, 1756-88), which illustrate the importance of judges in “making” law:

“The reason and spirit of cases make law; not the letter of particular precedent” : Fisher v Prince [1762] 3 Burr 1364;

“Matters of practice are not to be known from books. What passes at a judge’s chambers is matter of tradition: it rests in memory” : R v Wilkes [1770] 4 Burr 2566.   

Policy. Are decisions taken on the basis of formal conceptualism (often referred to as “black letter law”) or is there a political reason behind the decision?

How far does fear of the open “floodgates” influence judicial decision-making?

“Whenever the courts draw a line to mark out the bounds of duty, they do it as a matter of policy so as to limit the responsibility of the defendant” : Spartan Steel v Martin & Co [1973] QB 27, per Lord Denning, M.R.

Categories of Tort

The two basic categories of Tort are:

• Intentional Torts: It is one of the categories of torts that describes a civil wrong resulting from the tortfeasor’s intentional act.
• Negligent Torts: Negligence is a failure to exercise the  due care that, in similar circumstances, a reasonably prudent person would exercise. The area of law of tort known as negligence involves harm caused by carelessness, not intentional harm.

Wrongs

These are of two types:

• Public wrong – These are acts that are tried in criminal courts, punishable under criminal law, and are called crimes. 
• Private wrong – These are acts against an individual or an individual in a community and are tried in civil courts and are called torts.

Differences between Tort and Crime

In criminal and civil actions standard of proof varies: “beyond a reasonable doubt” and “on a balance of probabilities”.

The interweaving of Act and Content

The main dividing line between past laws and current laws is the separation of what a defendant might have done and his motives to do so. Only acts were considered originally. According to Chief Justice Brian, “The thought of man shall not be tried, for the devil himself knoweth not the thought of man.” (In many early cases, the names of the parties and judges were either not recorded or have been  lost).

Nevertheless, the perception of the results of an act, rather than whatever intention might have sparked it, was expressed in a case of 1146 in which a judge held that, if anyone commits an act, however acceptable in itself, which may have an impact on others, he has a duty to perform this act, to the utmost degree of his ability, in a manner that does not cause any personal injury or damage to another.

To put differently his judicial opinion, referring to himself in a hypothetical sense, the judge explained that if I drop a piece of that timber in the process of lifting timber to build a building, causing damage to my neighbor’s home, he would have a valid claim against me. It won’t matter if my construction was completely lawful, or if I didn’t intend the outcome to happen.

Inferentially, therefore, the defendant owes the complainant the monetary compensation needed to repair the damage, as well as the labor costs involved.

A Modern View of Intent

With regard to both criminal and tort systems, the intent is pivotal to almost every court decision. Where it can be shown that the timber drop was intentional or due to extreme negligence, punitive as well as compensatory damage is likely to result. As their words suggest, compensatory damage is meant to force the defendant to pay for the actual damage, possibly replacing a roof and/or a number of broken windows.

Punitive damages, on the other hand, are intended to punish where a judge or jury can find intent or negligence reaching the edge of intent. In Modern terms, most cases of tort are resolved by a judge, unless the matter is of such a serious nature as to require a jury.

Returning to our historical tapestry, as centuries went by, the significance of intent was recognized with a lingering sense of uncertainty, although at first in a tentative manner. Thus, in a 1681 case, a judge ruled: “The law shows less concern with the actor’s intent than with the loss and damage of the suffering party”. This indicates that intent had begun to be seen as a force which, if not yet central, could no longer be dismissed as lacking the slightest significance.

Underpinnings of Tort Law

The source of tort law in its most basic terms is to shield society from chaos and pandemonium by setting up a court in which one person can bring a claim against another, without resorting to private revenge.

Unlike litigation branches such as contracts and real property, the law of torts considers such concerns as the loss of dignity experienced by a party bringing a personal injury claim. Often, the real source of a claim is the sense of humiliation of being exploited or tricked.

Violations of dignity can be seen as the western equivalent of other cultures’ concepts of losing face. This system allows for consideration of pain and suffering, as well as other types of emotional distress, when reaching a verdict in a civil court.

Conclusion

There is some similarity between crime and tort, since in the past centuries tort, a private action, used to be used more than criminal laws. An assault, for example, is both a crime and a tort (a form of trespass against the individual). A tort allows an individual, the victim, to obtain a remedy that serves their own purposes (e.g. by paying damages to a person injured in a car accident or by obtaining injunctive relief to stop a person from interfering in their business). On the other hand, criminal actions are pursued not to obtain remedies to assist a person – although criminal courts often have the authority to grant such remedies – but to remove their freedom on behalf of the state. This explains why incarceration is usually available as a punishment for serious crimes, but usually not for tort.

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This article is written by Shubhangi Sharma, 5th year student of BA LLB in Lloyd Law College, Greater Noida. The articles discuss the vicarious liability of partners in a law firm.

Principle of Vicarious liability

Generally, a person is liable for his own wrongdoing and one does not bear any obligation for the work done by others. The general rule of vicarious liability is that liability of one person for the act done by another person, may arise. The law refers to this as vicarious liability. For Example, the liability of A for the act done by B can arise, it is necessary that there must be a certain kind of relationship between A and B, and the wrongful act should be, in a certain way, connected with that relationship. The common example of such liability is:

1. Liability of principal for the tort of his agent.
2. Liability of partners of each other tort.
3. The company and its directors.
4. Owner and Independent Contractor.
5. Liability of the master for the tort of his servant.

Vicarious liability is based on two legal maxims:

Quit facit per alium facit per se

This maxim also applies in the case of principal and agent. When a person authorizes another person to perform a particular task, he becomes the chief and the doer becomes the agent. In this case, the principal becomes liable for the act of the agent. So, this legal maxim of vicarious liability is Quit facit per alium facit per se. It also implies that the employer (or senior) is responsible for the work of the employee.

Respondeat Superior 

This legal maxim means “Let the Superior be Liable”. If we have to understand this maxim then we can take a daily life example i.e. we often see seniors sending juniors to seek adjournments or file applications. If the junior is not able to understand the task well, or tries to show his or her legal skills by making some commitment even if not specifically instructed by the senior person, then in that case, the superior is responsible to answer judge and also to clients.

Reasons of Vicarious liability

Several reasons have been advanced as to the justification for imposing vicarious liability:

1. The master has the ‘deepest pocket’. The defendant’s funds, or the fact that he has access to resources through insurance, have in some cases had an unconscious effect on the development of legal principles.
2. A vicarious obligation encourages accident prevention by giving an employer a financial interest in encouraging their employees to care for the safety of others.
3. As an employer makes a profit from the activities of its employees, it must also bear the losses that give rise to those activities.

In Bartanshill coal co. v. McGuire, in this case, the words of Lord Chelmsford, “it has been established by law that a master is liable to third persons for any injury or damage done through the negligence or unskillfulness of a servant acting under his master’s instructions. In such instances, the principle will be liable for the act done by his agent.

Liabilities of a partner to third parties

 A partner’s liabilities to third parties are as follows:

1. Liability of a partner for the functions of the firm

Each partner is jointly and severally liable. All partners jointly or individually can be sued by the creditors of the firm.

2. The firm’s liability for the wrongdoing of a partner

If a third party has caused a loss or injury or damage or has been fined due to the partner’s wrongdoing or omission, the firm is equally liable to the partner. However, the partner must act in the ordinary course of business of the firm or with the authority of its partners.

Vicarious liability in employment

The employer may be held liable for actions or omissions during the employee’s job. In the “during employment” act, the employer must authorize or direct the act, or otherwise be associated with the act. An employer is not liable for work done by his employee which is not within the scope of his employment. There are three elements that need to be present for vicarious liability.

1. Employment – The person who has committed the tort must be an employee.
2. Tort must be committed by one of the partners of the firm.
3. Tort must be committed during employment.

The above mentioned elements is needed for vicarious liability can only be established if the person doing the wrong was an employee, and he / she commits the wrongdoing (result in damage and harm to someone), and the wrongdoing was committed during his work when he/she was under the scope of their employer. For example, a water purifier installation engineer comes into your home, but is the installation so bad that the exterior and interior walls need to be repaired. In this instance, the employer has not actually done anything wrong, but would still be liable under vicarious liability. And the above example also includes the 3 elements also i.e. employment, during employment, commitment of tort that must exist for obligation.

Similarly, a wrongful act is done by one partner in the ordinary course of business of the firm; all the other partners are vicariously liable for the same. All the partners of the firm i.e. guilty partner and the others are considered to be the joint tortfeasor. This liability is joint and several.

Joint and several liabilities

When two or more parties are jointly and severally liable for vicarious acts, each party is independently liable to the full extent of the injuries. Thus, if a plaintiff collectively wins a money judgment against the parties, the plaintiff can collect the full value of the judgment from both. That party can then seek damage as contributions from other wrongdoers. This concept of choosing the defendant (s) from which to collect damages is called the law of Indivisible Injury.

Illustration: Suppose that A, B, and C negligently injure V. V successfully sues A, B, and C, for 20,000 rupees. If the court used a joint and several liability system, V could demand that A pay V the full 20,000 rupees. A could demand contribution from B and C. However, if B or C could not pay, A would be stuck paying the full amount which is demanded by V.

Who are partners in a firm?

A partnership firm is a type of business in which a group of people, also known as partners, come together. They establish their own firm and provide services and products through it. However, a partnership firm is not considered as a separate legal entity. The partners share all profits and losses among each other. All partners are given unlimited liability. To become a partner in a partnership firm one must attain some requirements which are mentioned below. One can enter into a partnership by the following law:

1. A person
2. A firm (recognized by law as a separate legal entity.
3. A company
4. A trustee
5. Chief member of a Hindu undivided family (Karta)

Partners relationship

The relationship which partners share with each other is the same as in principle and agent. For the tort committed by any of the partner of the company, all partners will be held liable for the damages. The liability of each partner is joint and several.

Under the Indian Partnership Act, 1932, the most important sections are:

Section 4 deals with the definition of partner.

Section 6 deals with mode of determining the existence of partnership.

Section 13 defines mutual right and liabilities.

In a Partnership firm each partner acts on behalf of other partner or on behalf of partnership. Hence, a partnership can be held vicariously liable for negligence committed by a partner. Consequently, the partnership may be held liable for the loss or injury of client.

Case laws

In the case of Northampton Regional Livestock Centre Company Ltd. v. Cowling is a reminder of the potential liability of partners of a general partnership. In this case, a partner (Partner A) jointly or severally liable for his partner’s (Partners B) breach of fiduciary duty pursuant to section 10 of the partnership acts, 1890. The court of appeal, overturning the first instance decision, was clear that although partner’s A conduct was reasonable and he had neither acted negligently nor authorized partner B’s breach of duty, the principle of joint and severally applied.

In the case of, Redman v. Walter, The plaintiff, Redman, employed the law firm, MacDonald, Brunsell & Walters, to prosecute a lawsuit. His suit was filed with “MacDonald, Brunsell & Walters” as attorneys of record.22 The suit was later dismissed, however, for failure to come to trial within five years, as required under the California Code of Civil Procedure. Walters, one of the members of the firm employed by the plaintiff, had severed his relationship with the firm ten months from the date of initial retainer.24 Nevertheless, Redman instituted a negligence action against the partnership, MacDonald, Brunsell & Walters, and each attorney individually. the court stated that “generally, all partners are bound by the acts of any one, within the legitimate scope of the business of the partnership, until the dissolution of the partnership.

In case of Smt. Vunna Visali v. State of A.P., It was held that In fact, every partner is liable for an ‘act of the firm’. ‘Act of a firm’ has been defined to mean ‘any act or omission by all the partners or by any partner or agent of the firm which gives rise to a right enforceable by or against the firm’. This is the civil liability of the firm and its partners.

Partners and Partnership

Each firm partner is the agent of the other for partnership purposes business. The act of one partner is called the act of all. “First and foremost issue, is that in a malpractice suit, alleging vicarious liability of a law partnership, is whether there was an existence of partnership at the time the alleged liability arose. Therefore, all other partners are held liable for the wrongdoing of one partner of a business firm to the same extent as the guilty partner. In the case of Hamlin v. Houston & Co., one of the partners of the partnership firm bribed the plaintiff’s clerk to give secret information about the plaintiff’s business. It was held that both partners of the firm could be held liable for preventing breach of contract, which is a wrongful act, although the act was committed by one of them. 

Conclusion

Vicarious Liability deals with cases where one person is liable for the acts of others. In the field of Torts it is considered to be an exception to the general rule that a person is liable for his own acts only. The principle of vicarious liability is based on the principle of qui facit per se per alium facit per se, which means, “He who does an act through another is deemed in law to do it himself.” Hence, in the case of vicarious liability, both the persons on whose instructions the act is carried out, as well as the person implementing the act, are liable. Thus, employers are strictly responsible for the act of their employees committed during employment. In the order that A’s liability for actions done by B may arise, it is necessary that there must be some kind of relationship between A and B, and wrongly, in a certain way, related with that relationship. So, a master is liable for the acts of his servant if the act is done in the course of employment. But where one appoints an independent contractor to do the work on his own behalf, he is not responsible in any general way for any act committed by the contractor during the execution of the work except in some exceptional cases. The vicarious liability of a law partnership is essentially analyzed in two stages: first, whether the partnership is in existence or real; And second, wrongdoing / work done within the partner in simple course of business, in the existence of law partnership.

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This article is written by Shubhangi Sharma, a 5th-year student of BA LLB in Lloyd Law College, Greater Noida. The articles discuss vicarious liability in the case of guardian-ward relationship.

Meaning of vicarious liability

Vicarious liability is a condition in which one party is partly or wholly held responsible for the unlawful actions of a third party. The third party is also part of the obligation. Vicarious liability may arise in situations where one party is held responsible (and the third party has control) and is negligent in performing that responsibility and exercising that control. In the case of vicarious liability is that liability where one person is liable for the act of another person. In order that the liability of A for the act done by B can arise, it is necessary that a certain kind of relationship between A and B, and the wrongful act should be, in a certain way, connected with that relationship. The common example of such liability is:

1. Liability of principal for the tort of his agent.
2. Liability of partners of each other tort.
3. The company and its directors.
4. Owner and Independent Contractor.
5. Parent’s liability for the tort of their ward.
6. Liability of the master for the tort of his servant.

In the case of the Exxon Valdez oil spill, the Exxon shipping company came under vicarious liability for a series of events that caused 10.8 million gallons of crude oil to spill into the sea and affect the coast. Among other factors, the company was blamed for the lack of supervision on the side of captain, fatigue among crew members riding in the oil tanker, as well as the status of radar equipment that could help prevent the ship from moving. Although the employer is not the one who commits an unlawful act, the employer is held liable because it is held responsible for the actions of its employees when they are on the job and is considered capable of preventing and/or limiting any harmful act done by its employees. Employers may be able to avoid vicarious liability by using reasonable care to prevent illegal behavior.

In addition, there is no existing law for minors in India with reference to tort. But we have a provision in criminal law that a child under 7 years of age cannot be held liable for a crime. Now, if we have any provision in criminal law, why has not an act been passed yet which takes tort and minor in consideration, knowing the fact that children make civil mistakes most of the time instead of committing crimes.

Vicarious liability is based on two legal maxims

Quit facit per alium facit per se

This maxim also applies in the case of principal and agent. When a person authorizes another person to perform a particular task, he becomes the chief and the doer becomes the agent. In this case, the principal becomes liable for the act of the agent. So, this legal maxim of vicarious liability is Quit facit per alium facit per se. It also implies that the employer (or senior) is responsible for the work of the employee.

Respondeat Superior 

This legal maxim means “Let the Superior be Liable”. If we have to understand this maxim then we can take a daily life example i.e. we often see seniors sending juniors to seek adjournments or file applications. If the junior is not able to understand the task well or tries to show his or her legal skills by making some commitment even if not specifically instructed by the senior person, then in that case, the superior is responsible to answer judge and also to clients.

Liability of parents in Children’s tort

Speaking of parents, they can be held liable if they owed a direct duty of care towards their child while he or she is liable for the tort. Some parents who have faced the suits under parental responsibility laws have argued that laws interfere with parental rights, as in the course of defining poor parental supervision, the law must define what “good” parent means? While parents have the fundamental right to care for their children, as the Supreme Court has recognized, this right comes with a duty to supervise the child’s activity and have control over them. Courts have regularly held that states have a compelling interest in promoting the public welfare by holding parents accountable when they fail to fulfill that duty. This is the basis on which courts abide by parental responsibility laws. As a general rule, a parent or guardian cannot be held liable for the tort of a child. There are two exceptions in this rule:

When the child is the father’s servant or agent, the father is vicariously liable for the act of a child. It must be taken into consideration that, in such a case, the father is liable for son’s tort, not as his father, but in the capacity of an employer or principle.

In the case of, Hagerty v Powers (1885), In Haggerty, an eleven-year-old boy shot and injured another child. The plaintiff pleaded that the father “let his minor child suffer the loss of a pistol” by negligence and carelessness to handle the pistol. Despite those words, the court still found that the parents were not financially responsible for their son’s actions.

When a father himself, by his own negligence afford his child an opportunity to commit a tort, he is liable.

In the case of Bebee v. Sales, the father supplied an airgun to his son who was 15 years of age. Even after so much of complaints of mischief caused by the gun, he allowed the gun to remain with the boy, who accidentally wounded the plaintiff. For that the father held liable. 

Historically, under English and American common law, parents were not liable for their children’s acts of a tort only on the basis of their parent/child relationship. It was necessary to make parents liable for wrongful participation by parents in civil. Involvement may include encouraging or focusing on the child’s misconduct or misbehavior, enabling the child to engage in wrongful conduct or tracking the child’s manifestly dangerous conduct.

A teenager who recklessly and negligently smashed his car into someone’s vehicle committed a tort under common law, but his parents would not have been held liable if they had no reason to know he would be driving negligently. But that left the injured people without a source of compensation for their losses. Now, all 50 states of the US have laws of some sort that hold parents liable for damages from their children’s misconduct. Under many of these laws, a parent’s lack of knowledge about the child’s conduct is irrelevant, and the parent is liable for the harm caused by the child’s negligence or wrongdoing. This is a form known as “vicarious obligation”.

Unlike criminal law, personal liability can be enforced in cases of civil wrongdoing committed by a person without wrong intentions or proof in case of wrongdoing by a citizen. The justification of this theory is that society benefits by transferring the burden of harm or injury to the person who is able to bear it. In the case of a parent’s liability for the harmful acts of their children, the parents themselves are in a better position to deal with the loss than the children which are made by the conduct of their children, who usually can compensate for someone whom he has injured.

Parent’s civil liability towards their child

Each state in the US has its own law regarding the civil liability of parents for the acts of their children. Parents can be held responsible for the harmful actions of their children in the same way that employers are responsible for the harmful actions of their employees. This concept of law is commonly known as vicarious liability. So, the parents are indirectly or vicariously liable for the damages done by their child. There are various parents’ civil liability and the ways in which parents can be forced to pay damages for their children’s acts.

Liability for compensating the victim

Various states declare parents financially liable for damages caused by their children. When a child attains the age of 18 years (no longer a minor) then the parents will not be liable for paying damages for their civil wrongs. After attaining the age of majority, there is a termination of rights of parents over a minor, the parent will no longer be held liable for the act of child because the legal relationship of child and parent has ended up. In some states of the US, the government put some limit on the amount of which parents will be liable. The civil liabilities vary from state to state. Some are the acts which include the responsibility of parents. They are:

1. Vandalism with government or school property.
2. Destruction of national and state flags, cemetery headstones, public monuments or historical remark.
3. Property destroyed in hate crimes based on race or religion.

Personal damage done in relation to these acts will lead to parent’s liability to pay for damages.

Negligent supervision

A parent is liable for the child’s negligent act if the parent clearly knows or had reason to know about the civil wrong which is necessary to control the child and parents played a negligent role in their part by not taking some reasonable actions to stop him from doing so. In the case of Robertson v. Wentz, the Court stated that “the ability to control the child, rather than the relationship as such, is the basis for a finding of liability on the part of a parent. The absence of such ability is fatal to a claim of legal responsibility. The ability to control is inferred from the relationship of parent to minor child, as it is from the relationship of a custodian to charge; yet it may be disproved by the circumstances surrounding the particular situation”.

In other words, the evidence must show that the parents had a duty to stop the child as a reasonable person from doing some civil wrong; to a certain extent which means that some kind of physical control must exist and notice that the child has a tendency to act in a certain way, that is, whether it was foreseeable or not. This kind of fact involves an in-depth investigation that is usually not easily answerable. The key to reaching this point is a lot of evidence to show that parents knew or should have known about the kind of acts their child had committed that has caused damage or injured that person. The liability of negligence is not limited to parents only. If any child is in custody of grandparents, guardians or anyone else who has the control of him will be held liable for the act done by him.

Cases

In the case of Newton v. Edgerly, the father was held liable when he supplied his 12-year-old son (who was young for his years) with a 710 rifle without proper instructions and an accident occurred.

In Emery v. Emery, the California court decided holding that a parent is subject to an action in tort for wilful misconduct (complaint alleging that a minor child was driving an automobile under the direction of his father, was unskilled, had not slept for twenty-four hours, and that speed was excessive-facts known to parent). In this case, the parents will be held liable.

Conclusion

In particular, we recognize various situations in which a minor can be prosecuted. As discussed, the minor must be treated on the basis of reasonability out of his or her age. A parent, guardian or others who have the custody of the child will be held liable for the civil wrong done by him and also for the damages and injury caused by him. A parent may be liable to pay penalties or compensation for the damages. If the child is minor i.e. below 18 years of age then parents will be held liable for their civil wrongs. If the child has attained the age of majority then parents will not be liable for compensating the damages done by him in tort.

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This article is written by Sonali Chauhan, a student of Lloyd Law College, Greater Noida. The author,  in this article, has discussed the concept of Waiver of Tort Claim.

Introduction

Waiver of Tort enables a complainant to recover the gain/benefit from his/her wrongdoings acquired by the defendant. There’s nothing more, nothing less. Waiver of Tort does not attempt to remedy a loss by restoring the corresponding gain from the defendant to the plaintiff. It’s not yet trying to punish a defendant for wrongdoing. Rather, the waiver of tort seeks to prevent a defendant from taking advantage of his or her wrongdoing by compelling the disgorgement of the resulting gain. Thus, the amount legitimately claimed in the waiver of tort is the amount of the defendant’s benefit or gain, net of any reasonable expenses incurred by the defendant in order to obtain that gain.

History and General Principles

General Principles

The doctrine called “waiver of tort” is often regarded as an offshoot of the civil law of restitution. The principle underlying the doctrine is that a complainant who has been wronged may elect not to claim a remedy for tort and may instead claim a remedy for restitution. The plaintiff is thus told to “waive the tort” – somewhat inappropriate. This description is inappropriate because it connotes inaccurately that the complainant has set aside the claim for tort. In fact, in order to access alternative and sometimes more lucrative remedies available from the restitution law, the plaintiff has put aside only the tort law remedies for the claim.

The Law of Restitution, 6th edition, Goff and Jones explain the concept in the following way: 

A person upon whom a tort has been committed and who brings an action for the benefits received by the tortfeasor is sometimes said to “waive the tort”. Waiver of tort is a misnomer. A party only waives a tort in the sense that he elects to sue in restitution to recover; he has a choice of alternative remedies. But the tort is not extinguished. Indeed, it is said that it is the sine qua non of both remedies that he should establish the tort has been committed. (Emphasis added.) 

Similarly, in The Law of Restitution, Maddaugh and McCamus note that waiver of tort:

 […] seems to have engendered an undue and needless complexity . . . In essence, the concept is really quite simple: in certain situations, where a tort has been committed, it may be to the plaintiff’s advantage to seek recovery of an unjust enrichment accruing to the defendant rather than normal tort damages.

It is essential to explain further what is meant by “waiver of tort” as this area of law is often clouded with imprecise terminology that has confused the principles of doctrine.

The problem is apparently the use of the term ‘unjust enrichment’.  In describing cases where the complainant’s remedy is measured by the wrongful gain of the defendant, jurists have often commented that the remedy is for “unjust enrichment” or for “restitution”.These references, however, do not refer to the cause of unjust enrichment, which requires evidence of a tripartite cause of action, namely: (1) the defendant’s enrichment; (2) the complainant’s corresponding deprivation; and (3) the absence of a juristic reason for the enrichment. Therefore, on a conceptual basis, it is more helpful to refer to situations where disgorgement of the profits of the defendant is granted as instances of “wrongful enrichment,” “restitution for wrongs,” “unjust enrichment by wrongdoing” or “disgorgement”.

When we consider the distinction between the cause of action for unjust enrichment and disgorgement remedy, the distinction is attenuated. In the former case, the defendant is required to “give back” the property acquired from the complainant, which is the “corresponding deprivation.” The defendant is required to “give up” property acquired from any source as a result of the wrongs committed against the plaintiff in the case of the disgorgement remedy.

Waiver of Tort and Assumpsit Indebitatus

There is a long and complex history of waiver of tort. The doctrine emerged in the common law courts as a response to the limitations of the ancient forms of tort pleading.  In the face of the limitations of the old forms of pleading and the growing influence of the Court of Chancery, the common law courts resorted to the use of assumpsit indebitatus in order to provide a remedy where the action failed as a claim of tort. Accordingly, the doctrine was based on the common law courts ‘ desire to provide a remedy that would do justice among the parties in circumstances where tort law was deemed inadequate to do so and was based on the principles of good conscience, fairness, and justice.

Historically, assumpsit actions have been used to bring claims that would now clearly be pleaded in negligence as claims. Early cases of an express assumpsit (which were essentially contract-based claims) were brought with regard to negligent performance of a contractual undertaking. In these cases, the complainant sought to recover damages caused by the defendant’s failure to perform a contractual undertaking due to physical injury to a person or property.

In Moses v. Macferlan,(1760), 2 Burr 1005, which is widely regarded as the origin of both the waiver of tort and the law of restitution, Lord Mansfield rejected the argument that where there was no express or implied contract, no action in assumpsit could lie. He stated: “[if] the defendant be under an obligation, from the ties of natural justice, to refund, the law implies a debt and gives this action [to recover money had and received to the plaintiff’s use] founded in the equity of the plaintiff’s case, as it were upon a contract (“quasi ex contractu,” as the Roman law expresses it).”

It is commonly assumed that the waiver of tort originated with cases of usurpation of public office, especially where the usurper had sold improperly collected goods in connection with the office. Such activities have been used as a grounds for recovering money from a public office usurper. The use of indebitatus assumpsit also had procedural advantages, enabling complainants to avoid the issues associated with the strict requirements of the old form of pleadings.

In  United Australia Ltd. v. Barclays Bank Ltd., the House of Lords noted that historically, waiver of tort was seen as nothing more than a choice between possible remedies at a time when combining remedies or pursuing them in the alternative was not permitted. The House of Lords argued that the presumed remedy exclusivity was wrong. Waiver of torture does not require that a complainant make an irrevocable choice about the nature of his claim. Rather, the House of Lords concluded, waiver of tort was to be viewed as a choice of remedies available until judgment was satisfied.

What is the Waiver of Tort?

There has been a waiver of tort since the 17th century. It originated as a somewhat desperate effort to find a contractual basis for what was essentially a restitution claim before recognizing the concept of restitution.

The origin of the doctrine lies in the phrase “waiver of tort and suit in assumpsit.” Assumpsit was the historical background of many “quasi-contract” restitution claims of the modern common law. When the waiver of tort first came into being, the idea was that the plaintiff really had to’ waive’ the tort in order to bring an assumpsit claim. By waiving the tort, the plaintiff would in fact ratify the conduct of the defendant, thus creating a quasi-contractual relationship that would allow the claim to be assumpsit. The court could then argue that on behalf of the plaintiff, the defendant had acquired the benefits.

All this was an elaborate fiction of Course. In United Australia, Ltd. v. Barclay Bank, [1940] 4 All E.R. 20, The House of Lords recognized that the so-called’ waiver of tort ‘ does not require the complainant to waive a claim of tort or ratify the tortious conduct of the defendant. 

Waiver of tort is, therefore, a misleading name for a doctrine that allows the tortious behavior victim to obtain disgorgement of benefits rather than compensatory damages. As Professor McCamus explains, “the basic idea of a claim for waiver of tort is simple. In tort, the damage at the time of conversion is the value of the property. However, if the defendant has sold at a price exceeding the value, a disgorgement or waiver of the tort claim would allow the plaintiff to recover the defendant’s windfall and claim the full proceeds from the defendant’s sale”. Thus, the plaintiff does not have to’ waive’ the tort; instead, he/she pursues the tort claim and then elects to’ waive’ the remedy of damages, instead claiming the defendant’s wrongfully obtained benefits.

Canada’s law on waiver of tort is far from being settled. There remains disagreement as to whether the waiver of tort is merely an alternative remedy to the damages or whether it is an independent cause of action. This is important because if the waiver of tort is no more than a remedy, the complainant will always have to prove complete tort (duty of care, causation, damage) to get disgorgement. If the waiver of tort is an independent cause of action, disgorgement of obtaining wrongful benefits could be available even in situations where wrongful conduct has not caused the complainant any actual harm, see: Serhan Estate v. Johnson & Johnson, 269 DLR (4th) 279 (Div Ct).

Damages in Waiver of Tort

Waiver of torture allows a complainant to claim disgorgement of the wrongfully obtained benefit from the defendant. It is essential to know how in unjust enrichment these’ disgorgement damages’ vary from compensatory damages, punitive damages, and restitution damages.

Tort law aims to compensate a complainant for the harm caused by the tortious conduct of the defendant. Thus, compensatory damages are the usual remedy in tort-i.e. damages that compensate the complainant for the loss he/she suffered as a result of the wrongful conduct of the defendant. The focus is entirely on the loss of the complainant; the gain of the defendant (if any) is irrelevant to that calculus.

Tort law will also award punitive or aggravated damages in cases of egregious conduct over and above the loss of the complainant. These are an add-on to the main claim for compensation, intended to punish the offensive actions of the wrongdoer in particular. Since the underlying purpose of tort law is to compensate for a loss and not to punish for wrongdoing, awards for punitive damages are relatively rare.

Meanwhile, unjust enrichment seeks to restore a benefit to a plaintiff that the defendant has unjustly obtained from the plaintiff. A claim may lie in unjust enrichment without any misconduct on the part of the defendant, but it can not lie without a loss or detriment to the plaintiff. The loss and the gain must correspond. So, while unjust enrichment provides a gain-based remedy, that remedy is linked to the loss of the complainant. The complainant does not necessarily recover all the defendant has earned; he/she recovers what he/she has lost. In essence, restitution damages are a refund.

Waiver of tort shifts the focus from loss of the complainant to gain of the defendant. The idea behind the waiver of tort is that allowing a defendant to take advantage of his/her tortious conduct would be unfair. How much the complainant lost in waiver of tort is irrelevant to the measure of damage; the question is how much the defendant has earned. Thus, unlike restitutionary damages in unjust enrichment, damage to disgorgement in waiver of tort may exceed the amount of the loss of the complainant.

In brief, restitution damages are limited to those benefits wrongly acquired from the complainant, whereas disgorgement damages include any gain received by the defendant as a result of committing a mistake against the complainant. So, while restitution damages are only capable of stripping gains acquired from the plaintiff by the defendant, disgorgement acquired from the plaintiff, disgorgement damages are capable of stripping gains acquired from the plaintiff by the defendant, disgorgement damages are capable of stripping gains acquired from any source, including but not limited to the plaintiff.

Conclusion

It puts the focus where it should be – on the defendant’s wrongfully – obtained benefit rather than the plaintiff’s loss and strips that benefit without veering into the punitive by taking away more than was earned. Although there is no directly on point jurisprudence confirming that this is the correct approach, and although real-life situations will doubtless add layers of complexity to the question, we believe that this is a logical and defensible starting point for counsel attempting to navigate the murky waters of waiver of tort. 

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This article is written by Sonali Chauhan, a student of Lloyd Law College, Greater Noida. The author, in this article, has discussed the Role of Motive, Intention, and Malice in Torts.

“ It is the act and not the motive for the act that must be regarded. If the act, apart from the motive, gives rise merely to damage with legal injury, the motive, however, reprehensible it may be, will not supplement that element”– Salmond

An act, otherwise lawful, can not generally be brought into action by an averment that it was done with evil motive. An evil motive in itself does not amount to injury or legal error. If a person has the right to do something, then his motive is irrelevant.

Motive

A motive is a person’s state of mind that inspires him to do an act. It usually means the purpose of the act’s commission. Motive is generally irrelevant in tort law, just like intention. Motive leads to intention formation, which is the ultimate cause. Motive is the ultimate object with which an act is done, while the immediate purpose is the intention. 

The cause that moves individuals to induce a certain action is a motive, in law, especially criminal law. Typically, the legal system allows motive to be proven to make plausible reasons for committing a crime for the accused. However, motive is not essential for a tort action to be maintained. It is not just because the motive is good that a wrongful act becomes legal. Similarly, due to an improper, evil motive or malice, a lawful act does not become wrongful. 

The decisions of Lord Halsbury and Lord Watson in Bradford Corporation v. Pickles and Allen V. Flood may be treated as one of the earliest decisions that settled that motive is irrelevant in tort.

• Bradford Corporation v. Pickles [1895] AC 587

Facts:

The plaintiffs owned land below which were water springs used to supply water to Bradford town for more than 40 years. The defendant owned land over the plaintiffs on a higher level. There was a natural reservoir under the defendant’s land and water flowed from that reservoir down to the springs of the plaintiffs. The defendant, however, sank a shaft into his land to alter water flow. This significantly reduced the amount of water flowing into the springs of the plaintiffs. There was sufficient proof to suggest that the defendant was following this course of action, not to give himself any immediate advantage, but merely to deprive the plaintiffs of water. The plaintiffs insisted that this was malicious and that they had the right to an injunction to stop the defendant from acting in this way.

Held:

Lord Halsbury L.C.: It’s not a case where the state of mind of the person doing the act can affect the right to do it. If it was a lawful act, however ill the motive might be, he had a right to do it. Motives and intentions in such a question as is now before your lordships seem to me to be absolutely irrelevant.

Lord Watson: No use of property, which would be legal if due to a proper motive, can become illegal because it is prompted by a motive that is improper or even malicious.

• Allen v. Flood [1898] AC 1

Facts:

Flood and Walter was a shipwright who was employed on a ship, liable at any time to be discharged. As they had worked for a rival employer, fellow workers objected to their employment. Allen was a trade union representative on the vessel for the other employees and approached the employers, telling them that the other staff would strike if they did not discharge Flood and Walter. Consequently, the employers discharged Flood and Walter and refused to re-employ them where they would otherwise. Flood and Walter brought the action to induce a contract breach in a malicious way.

Held:

The decision was reversed, finding that Allen had not infringed any Flood and Walter’s legal rights. There was no legal right for them to be employed by the employer and Allen did not perform an unlawful act and did not use any unlawful means to obtain the dismissal of the employee. Allen was found to have represented what would happen to the employers if they continued to work with Flood and Walter. He relied on what he believed was going to happen, and he was believed by the employers. This was not regarded as an obstruction or disturbance of any right: it was not the procurement of any infringement of rights. The conduct of Allen was not actionable, although his motive might be malicious or bad.

Indian courts have also spoken about motive non-relevance as well as malice in tort. In Vishnu Basudeo V. T.H.S Pearse[ AIR 1949 NAG 364] and Town Area Committee V. Prabhu Dayal[ AIR 1975 All 132], the courts held that it is to be seen if the act is lawful, then the motive for the act is of little significance.

To conclude, we could say that a good motive is not to justify otherwise illegal acts, and a bad motive does not make an otherwise legal act wrong.

Exceptions to Rule

There are certain categories of tort where the motive may be an essential element and thus relevant to the determination of liability:

In the case of deceit, malicious prosecution, injurious falsehood and defamation, where the defense of fair comment or privilege is available. The defense of qualified privilege shall be accessible only if it has been published in good faith. 

In case of conspiracy, interference with the trade or contractual relations.

In cases of nuisance, causing personal discomfort by an unlawful motive may turn an otherwise lawful act into nuisance (held in the case of Palmer v. Loder (1962) CLY 2333).

Intention

A tortious liability may arise if a person causes any injury related to the life, property, reputation, etc. of the victim. According to tort law, the liability may be incurred irrespective of whether the injury was intentionally or accidentally inflicted.

Depending on the intention, a tort can be divided into two broad categories namely:

1. Intentional Tort
2. Unintentional Tort

a) Intentional Tort

Some action must be taken with a purpose to commit an intentional tort, i.e. an intention is must to commit an act. It is essential that there is a mental element.

Garratt v. Dailey, 46 Wash. 2d 197, 279 P.2d 1091 (Wash. 1955)

In 1955, a young boy whose name was Brian pulled a chair from underneath Ruth Garratt as she went to sit down. Ruth fell and broke her hip because of Brian’s chair-pulling. Ruth filed a lawsuit against the family of Brian claiming to have acted intentionally, causing her personal injury. Although Brian did not intend to cause injury, the court found that the act resulted in the hip being broken and awarded Ruth $11,000 in damages. Brian’s family appealed on the grounds that children 5 years of age could not be held liable for an intentional tort. The court ruled that children can be held liable and that the intent element is in place if the person knew with certainty that the act carries a risk of injury.

Intentional tort includes:

Battery

When physically applying some force to another person’s body in an offensive manner that causes some harm is called battery.

Assault

When one person’s act creates an apprehension in another person’s mind that such act is likely or intended to cause such harm.

The difference between battery and assault is, in battery, physical contact is mandatory while in assault, physical contact is not mandatory as the purpose is to threaten not to harm. 

False Imprisonment

It is the person’s unlawful confinement without his will. It is not necessary to place a person behind bars, a mere impossibility of escape from a certain area against the person’s will is sufficient to constitute false imprisonment wrong. It includes the use of physical force (actual expression of force is not always required), a physical barrier such as a locked room, invalid use of legal authority. False arrest is the part of false imprisonment that includes police detention of the person without legal authority. Malicious prosecution falls under the category of false imprisonment.

Trespass

It is the intentional, unreasonable invasion of property, land, person or goods. The unreasonable interference can harass or harm the other person, however slight it may be. The owner of the property’s legal right is infringed because the misappropriation or exploitation of his right deprives him of his right to enjoy the benefit of the property.

b) Unintentional Tort

The defendant causes injury to the plaintiff in the case of unintentional torture, but without any mala fide intention. It could be called an unexpected accident. This was inadvertently done by the person who caused the injury because he/she was not being careful. Such an individual may be described as negligent or reckless. In the case of unintentional tort, it may be noted that the injury is caused by the omission of the “duty of care” that a reasonable and prudent man should have considered.

Wilkinson v. Downton (1897) 2 QB 57

The defendant joked that her husband had encountered an accident and had been admitted to a hospital. She was shocked by this news and fell seriously ill. She subsequently sued the defendant for damages under tort. The defendant claimed he never wanted to harm the plaintiff, but only cut a joke. The court dismissed his claim, holding him liable. Here, the court observed that mere intention was not an essential factor in tort. The defendant was aware of the natural and probable consequences of his act which caused the plaintiff to suffer damage. He was therefore liable, whether he intended to do so or not.

The distinction between Motive and Intention

The motive has been described as “the ulterior intent.” These two words are often used in popular and even legal usage interchangeably. The ultimate object with which an act is done is the motive, whereas the intention is the immediate purpose. For example, A, steals a loaf of bread from B’s bakery shop. A is liable for theft as well as for illegal trespass, though A’s motive was to feed his starving child, not to cause loss to B.

Malice

Malice means spite or ill-will in the popular sense. When an act is done with bad intention, called Malice. An act or statement becomes malicious if used for purposes other than those sanctioned by the law authority. 

It is possible to discuss the term malice in both legal and popular sense. In the legal sense, it means’ intentional wrongdoing, without a just cause or excuse or a lack of a reasonable or probable cause’ and it is known as ‘malice in law’ . In the popular sense, it means’ an improper or evil motive’ and it is known as ‘malice in fact’.

It emphasizes here that this wonderful act does not become lawful merely because the motive is good. Similarly, a lawful act does not become wrongful because of an improper, bad or evil motive or malice.

In the case of Town Area Committee v. Prabhu Dayal AIR 1975 All 132, the court observed that “mere malice cannot disentitle a person from taking recourse of law for getting the wrong undone. It is, therefore, not necessary to investigate whether the action is motivated by malice or not.”

Exceptions to the Rule

In the following cases, malice becomes relevant in determining tortious liability:

• When the act is otherwise unlawful and wrongful intention can be gathered from the circumstances of the case. 

In Balak Glass Emporium v. United India Insurance Co. Ltd., in a multi-storeyed building, the water from the upper story, under the control of the defendant escaped to the lower floor, occupied by the plaintiff. There was evidence of ill will between the plaintiff and the defendant. It was evidence of ill will between the plaintiff and the defendant. It was found that not only the tap of the upper floor was left fully open, but the outlet of the tank was also closed. There was only one inference that the said act was done by the defendant, with the wrongful intention, and hence, the plaintiff was held entitled to get damages for the same.

• Malice with respect to the litigant to be demonstrated in torts of deceit, malicious prosecution.
• The presence of malice in cases of defamation negatives good faith and the defendant cannot avoid liability by the defense of qualified privilege in such a case.
• Causing personal discomfort by an unlawful motive may turn a qualified lawful act into a nuisance.
• Malice which results in aggravation of damages.

Conclusion

By “mental elements”, we mean a person’s ‘intention’ to harm another person by infringing his or her legal rights. Intention means a state of mind where the wrongdoer is fully aware of his actions and their consequences. In addition, he has a desire to achieve these consequences. In criminal law, an essential ingredient of crime is the mental element. Here the mere act of the wrongdoer is not enough to hold him liable for an offense. Another requirement is the presence of a guilty mind.

The underlying principle is that a wrongdoer can not escape liability under the law of tort, simply because he has no intention of causing harm. However, in some cases, an offender may not be held liable (e.g., qualified privileges).

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Find out the AIBE XVIII question Paper solutions. Map and Mark your practise for coming AIBE papers by solving past year papers. 

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Civil Procedure Code(CPC) carries 10 marks as per the latest Bar Exam syllabus. 

Initiation of civil proceedings (includes jurisdiction and pleadings) 

The Code of Civil Procedure (CPC) lays down the detailed procedure for determination of disputes by courts of law. In general, the Code of Civil Procedure is applicable to all civil disputes (that is, private disputes, which are not criminal). The only instances where it does not apply are: 

Where the parties agree to privately resolve the dispute through contract, such as by arbitration. 

Where an independent tribunal has been established and the jurisdiction of civil courts is excluded. For example matters pertaining to the terms of service of government servants, income tax or regulatory matters are decided by dedicated tribunals established under other legislations (such as the Income Tax Act Appellate Tribunal under the Income Tax Act). 

Where a particular legislation provides jurisdiction to another forum. E.g. the jurisdiction for winding up of a company’s affairs usually vests in the High Court. The CPC is an extremely detailed statute and commentaries on the CPC run into several thousands of pages – that kind of study, however, is not important from the perspective of the All India Bar Exam. 

Our scope is limited in this chapter – to help you gain familiarity with the various concepts and procedural details used in the bare act. For this purpose, you should remember that the CPC is different from other legislations, in the sense that in addition to the statutory provisions under various ‘sections’, it also contains ‘orders’ explaining details of specific aspects. For those who wish to gain familiarity with the subject, the trick is to initially develop an ability to correlate the various sections with corresponding orders in the bare act to gain a holistic understanding of the relevant concept. 

In this chapter on CPC, we will take you through the various stages of a civil case – after the audio visual lectures for each stage, you will then have to attempt various practice questions. This should help you in understanding the concepts you learn and familiarize you with the provisions of the bare act which pertain to those concepts.

You will also be able to build confidence in using the bare act to look up the answers to a variety of questions. For further practice, you may also practice questions in separate exercises and practice tests which we will upload on the platform from time to time. Let’s begin with the first step you can take, when a dispute of a civil nature comes into existence. 

Click Here

Step 1 – Filing a case in a court 

A civil case (called a suit) may be filed in case of a dispute between two parties – say, when there is a 

dispute over performance of a contract, or for payment of money. It is commenced by filing a plaint. 

The specific event which entitles you to file a suit is known as a ‘cause of action’ – e.g. the time from which one party alleges that some action was to be performed by another party (but was not performed) or the time from when payment was due (but not paid). The time period within which a case may be filed should be within the Limitation Act (discussed separately). 

In which court should you file a suit? 

Every suit that you file will have a monetary value. How is the monetary value of a suit determined? 

The monetary value of a suit is determined as per the principles mentioned under the Suits Valuation Act, 1887 (not relevant to be discussed in more detail). 

Courts have jurisdiction depending on the monetary value of a suit. For example, the District Court in a particular district may only accept cases above INR 1 lakh. Suits having a lower monetary value may have to be filed in courts of civil judges (junior division) or courts of Small Causes. This monetary limit specifies the ‘pecuniary jurisdiction’ of a court. Pecuniary jurisdiction based on monetary value differs from state to state. The pecuniary limits of courts in Maharashtra may be different from limits in West Bengal.

A suit must be filed in the lowest court that is competent to try it. For example, if a suit of value lower than Rupees 1,00,000 can be tried in a court of civil judge (junior division), then it cannot be filed before the district court or the high court. 

Where should the Court be located? (Sections 16 – 20) 

There should be some relation between the court where the suit is filed and the place where the dispute arose. This concept is understood as the territorial jurisdiction of a court. 

Step 2: Completion of pleadings 

A suit is commenced by filing a plaint. A plaint should be filed in the appropriate civil court as per the principles discussed above. The defendant files a response to the plaint in the form of a ‘written statement’. The plaint and the written statement are referred to as the pleadings. Section 26 and Orders VI-VIII deal with pleadings. 

Part 2 

Interim Relief, Hearing and Attendance of Parties 

Understanding Interim Relief 

The final determination of a suit by the civil court can take a long while, often a few years. Therefore, filing of a suit is often accompanied by applications for interim relief, which claim temporary remedies or they request the court to order one of the parties to preserve the status quo. For example, imagine a situation where a particular piece of land is to be sold, the ownership of which is disputed between A and B.

The court may pass an interim order preventing sale of the land pending final determination of the suit, or it could order that sale proceeds be received in an independent account operated under directions of the court (which is not within the reach of either A or B). Interim injunctions are governed by Order 39 of the CPC and Sections 36-42 of the Specific Relief Act, 1963. Ordinarily, an injunction is issued after hearing the defendant – however, the court has powers to issue injunctions without granting a hearing in exceptional cases. An order of injunction passed without hearing the defendant is known as an ex parte ad interim injunction. 

Part 3 

Step 2: Hearing and attendance of parties 

Part A: Attendance of parties and witnesses (Sections 27-32, CPC) 

When a plaint is filed, the court issues an instrument called a ‘summons’ to the defendant informing him to be present before it on a particular date. A summons may also be issued to witnesses to present themselves before the court. [See Order 16 for details of summons for attendance of witnesses] 

The defendant has a right to be heard by the court. Hearing the defendant will also help the court to decide the issues in dispute more effectively. In many cases, defendants abuse this right and remain outside the court’s jurisdiction to delay or frustrate legal proceedings, which can cause additional difficulties in the determination of the suit. 

If the court is of the opinion that the defendant may travel outside its jurisdiction to avoid or obstruct legal proceedings, it may issue a warrant of arrest to produce him before the court and explain why he should not be required to furnish security for the claim against him, pending determination of the suit by the court. If the court is not satisfied by his explanation, the defendant will be required to furnish security before being released.

Similarly, if the court suspects that any property in dispute may be transferred by the defendant to defeat or frustrate legal proceedings, it may order the defendant to explain why he should not furnish security for the value of the claim. If it is not satisfied, it may ask the defendant to furnish adequate security, or it may even order attachment of the defendant’s property. [See Order 38 of the CPC for details of powers of a court relating to arrest and attachment prior to judgment] 

Part B: Framing of issues at the first hearing 

Once the filing of the pleadings is complete, the parties must appear before the court on the date of hearing. It is important for the parties to appear before the court (in person or through authorized representatives) on the date of hearing, absence can have serious consequences – the suit may be dismissed if the plaintiff himself is absent, or it may be decided on its merits without hearing the defendant (i.e. ex parte) if the defendant is absent. In case of dismissal or ex parte decision there are limited remedies available to the aggrieved party. [See Order 9 for more details] 

As the case proceeds, the court may grant additional time upon request to a party (called an adjournment. An adjournment is available for under exceptional circumstances and only a limited number of times as per the CPC, although in reality this provision is not strictly followed by the courts. See Order 17 for more details] 

Part C: Taking evidence to determine the issues 

At the first hearing, the court frames ‘issues’ on the points on which, according to the court, differences exist between the parties. The court may frame both ‘issues of fact’ and ‘issues of law’. For details on how issues must be framed see Order 2 of the CPC. Facts which are relevant to decide the issues may be established through several ways: 

By providing evidence 

For example, the court may orally examine the parties present before it [See Order 10 of the CPC for more details on examination of parties]. In the event a party or a witness cannot be personally examined inside the courtroom, the court can issue an ‘interrogatory’, essentially containing questions to which answers can be given in writing.

The party to which the interrogatory is issued is not required to be personally present before the court to provide answers. [See Order 11 of the CPC for more details]. Where one of the parties relies on a particular document which has not been furnished to the other party, the court may issue notice for its inspection by the other party. [See Order 11 of the CPC for more details] (Discussed in greater detail under the chapter on Evidence Act). 

By admissions – An admission is made when a party acknowledges that a particular fact alleged by the other party is true. It may be made by specifically accepting or by not rebutting.

 For example, if a defendant does not specifically deny a particular allegation made in a plaint in his written statement, he is considered to have admitted its truth. This is an example of where an admission is implied by law. The form in which admissions should be made in civil cases is also provided in Order 12 of CPC. (Discussed in greater detail under the chapter on Evidence Act) 

By affidavit. For more details on the matters and procedure for proving matters through affidavits, see Order 19 of CPC. The court has wide powers to enable it to understand and determine the points that are disputed. In certain cases, the court may be required to make a technical finding – e.g. determining the exact boundary of a particular piece of land, making a partition, examination of accounts, etc. In such cases, it can issue a commission for the determination of such technical matters. [See Section 75 and Order 11 of the CPC for more details] 

Part 4 

Step 3 – Decisions/ reliefs that can be ordered by a court – decrees and orders 

The final determination of a suit is usually in the form of a ‘decree’. A decree may be preliminary or final. For certain suits, the court may pass a preliminary decree. E.g. a preliminary decree is always passed in a suit for foreclosure of a mortgage (foreclosure is discussed in Transfer of Property). 

The suit is disposed of after a final decree. E.g. In a suit filed by A against B for breach of contract to construct a building, if the court finds that there has been a breach by B, it may issue a decree stating that B is liable to pay compensation to A of, say Rs,. 10,000 for the breach. A decree may be accompanied by various other ‘orders’ – which typically contain other reliefs for parties. For example, if B was found to be interfering with other potential contractors to whom A was considering transferring the work (due to the breach), the Court could issue an order restraining B from meddling or interfering with any such discussions by A. 

Let’s take the example of a suit filed by Deep against Shekhar pertaining to the declaration of title (i.e. ownership) over a piece of land in New Delhi. If the court determines that Deep is the owner of the property, it may issue a decree to such effect, accompanied with an order of ‘permanent injunction’ against Shekhar.

This order of permanent injunction will restrain Shekhar from interfering with Deep’s rights of ownership over the land. An order may also be passed with respect to an interim application – for example, before the court decided the suit between Deep and Shekhar, it could have passed an order of temporary injunction (of course, if an application to that effect had been filed by a party) to preserve status quo. If Deep was then in possession of the property, it could have ordered that Deep continues to hold the property final determination of the suit. This order may be ‘vacated’, that is, revoked subsequently, if the court determines that Shekhar is the owner of the property, or it could be made ‘permanent’, if the court finds that Deep is the owner. 

Step 4 – Actions that can be taken against various decisions of a court 

A party has various options available against a decision of the court, as explained below: (there could be a button which plays this commentary on foreclosure – ‘Foreclosure’ is a term related to mortgage of  property. Assume that a person obtains a loan from a bank after mortgaging his property in favour of the bank, as a security. If he defaults on the loan, the bank will have the right to sell his property and recover the amount of the loan. In  case he defaults, before the bank can sell the property, it will have to apply to a court for an order preventing the homeowner from repaying the loan and reclaiming his property – this is known as ‘foreclosure’. More details are covered in the Transfer of Property Act.) 

Certain orders of the court are appealable. These are listed in Order 43 of the CPC. In such cases, the party can directly file an appeal before the higher court against the order, even though the suit has not been disposed of finally by the lower court. For orders that are not expressly listed down as appealable under Order 43, a petition for revision may be filed in the superior court. However, it is on the discretion of the superior court to entertain a revision petition. On the other hand, decrees are by definition appealable, that is, a party has a statutory right to appeal before a higher court against a decree of a lower court. 

A review petition can also be filed (in which case the same court which issued the decision will look into it, instead of a higher court). However, the scope of a review petition is severely restricted – it can be entertained only to correct extremely obvious mistakes or errors, or new material which could not have been discovered earlier by the parties even by exercising due diligence (See Order 47 of the CPC for the scope). 

New Part 

Step 5 – Enforcing decisions of a court 

A decision of a court may be declaratory, i.e. that it may, for example declare X to be the owner of a piece of property. It may command a person to pay something monetary – e.g. in the form of compensation, damages, to return someone else’s money which was retained, to pay a fair amount for services received, etc. or it may require the person to restrain himself from performing certain actions. It could require him to vacate a particular piece of land and not to interfere with its use by the person who occupies the land lawfully. In certain cases, it may direct a person to specifically perform a particular action. These reliefs flow from the CPC and another statute called the Specific Relief Act (which will be discussed later). 

In case a party does not obey the directions of the court – the decree and orders of the court will have to be ‘enforced’. Enforcement of court orders is known as ‘execution’ – it is probably the single topic that has the largest number of provisions devoted to it – Sections 36 – 74 and Order 21 of the CPC deal with execution. Depending on the type of decree, execution is may involve attachment of property (which includes immovable property such as land, or movable property such as jewellery and other possessions, shares, money in bank accounts, etc.). Let’s take a few practice questions to understand the execution in greater detail. 

Tentative Topics- Attachment, sale (possible only on notice), arrest (when arrest not permissible), mode of attachment of immovable, movable property, execution outside India, limitation for execution, time from which execution proceeding can be filed, minimum time limit (in case of government) where no execution is permitted, court before which execution application can be filed, etc. 

CPC (Advanced) – Topics on which conceptual practice questions (1-4 max. per topic) should be framed 

• Relationship between sections and orders 
• Rules made by High Courts 
• Res judicata, stay 
• Costs 
• Interest 
• Summons 
• Summoning and attendance of witnesses 
• Suits against minors 
• Suits against corporations and firms 
• Suits against government or public officers 
• Suits against naval or military men 
• Suits against minors, persons of unsound mind and indigent persons 
• Interpleader suit 
• Summary suit 
• Receiver 
• Frame question on exemption from personal appearance 
• Question on Letter of Request (s. 76) 
• Question on Section 81 – personal attendance and attachment not necessary for public servant 
• Frame questions on ‘definitions’, the day the CPC came into force 
• Caveat 
• 1 question on enlargement of time 
• 1 question on Inherent powers 
• Appointment of receivers 
• Appeals from original decrees 
• Public nuisance 
• 1-2 questions on costs 
• Alternative dispute resolution 
• Specific performance 
• Basics of limitation 

Quiz 1 

1.) If A resides in Mumbai and B resides in Pune, and B wants to file a suit disputing ownership of A over a house located in Mumbai (immovable property), where should it be filed? Where would you file if the house was located in Bhopal? 

A.) Pune, Pune 

B.) Mumbai, Mumbai 

C.) Mumbai, Bhopal 

D.) Pune, Bhopal 

2.) If A resides in Mumbai and B resides in Pune, where should B file a suit if the subject matter relates to movable property, e.g. antique furniture or jewellery? 

A.) Pune 

B.) Mumbai 

C.) Pune or Mumbai, at the option of A 

D.) Pune or Mumbai, at the option of B 

3.) If A resides in Mumbai and B resides in Pune, where should B file the suit if the dispute relates to payment for the performance of certain services (that is, neither immovable nor movable property)? 

A.) Pune 

B.) Mumbai 

C.) Pune or Mumbai, at the option of A 

D.) Pune or Mumbai, at the option of B 

4.) If A owns a plot of land on a highway which spans across two districts, and hence falls within the jurisdiction of two courts, where should a suit with respect to a dispute pertaining to the plot of land be filed? 

A.) District where A resides 

B.) District where B resides 

C.) Courts of the district where the suit is filed first 

D.) Courts of any of the two districts in which the property lies

Quiz 2 

1.) In a plaint, the facts should be proved by? 

A.) Affidavit 

B.) Oral Evidence 

C.) Documentary Evidence 

D.) Witnesses 

2.)Within how many days must a written statement be filed? 

A.) 30 

B.) 90 

C.) 60 

D.) 120 

3.) The court can extend the time to file a written statement up to a maximum of: 

A.) 90 days from the date of service of summons on the defendant 

B.) 30 month from the date of service of summons on the defendant 

C.) 60 days from the date of service of summons on the defendant 

D.) 120 days from the date of service of summons on the defendant 

4.) The instrument issued by a court upon filing of a plaint, requiring the defendant to appear in the court to answer the claim is called? 

A.) Notice

 B.) Summons 

C.) Instruction 

D.) 

Warrant 

5.)Summons can be issued to: 

A.) Defendant 

B.) Plaintiff 

C.) Both 

D.) Defendant and witnesses 

6.) Which of these are processes to ensure appearance in a court? 

1. Summons II. Warrant III. Interrogatory IV. Commission V. Affidavit 

A.) I and II only 

B.) I, II, III and IV 

C.) I, II and V 

D.) All of the above 

7.) The format in which pleadings must be drafted are mentioned in: 

A.) Annexure A of the Code of Civil Procedure (CPC) 

B.) Order VI of the CPC 

C.) Order VII of the CPC 

D.) Order VIII of the CPC 

8.) In a written statement, what among the following is true regarding denial of facts alleged in the plain by the other party? 

A.) The defendant may general deny the alleged facts 

B.) The defendant must specifically deny each and every alleged fact 

C.) The defendant may not deny any allegation in the written statement but later in the hearings 

D.) The defendant must provide an evidence supporting every denial made in the written statement 

9.)A owes a sum of Rs. 5000 to a partnership firm of B & C. B pays all his liabilities and retires as a partner. A sues C for recovery of Rs. 8000 due in his personal character. Which of these are claims are available to C in the written statement? 

A.) He is not required to mention any sum at all 

B.) He must file a separate suit for recovery of Rs. 5000 owed to the partnership and not include it in this pleading 

C.) He must make file a separate interim application to combine his claim of the debt of Rs. 5000 in this suit 

D.) He may ask the debt of Rs. 5000 to be set-off in the written statement 

10.) Who must sign a pleading for it to be valid and enforceable,? 

A.) Party alone 

B.) Party or his attorney or advocate 

C.) Party or his authorized signatory 

D.) Attorney or the advocate representing the party alone 

11.) Which of these is false about a pleading? 

A.) Must contain facts only 

B.) Must contain facts and supporting evidence 

C.) Must contain numerals in words 

D.) Must be accompanied by an affidavit 

12.) Which of these is not allowed under the CPC? 

A.) Striking out of pleadings by the Court 

B.) Striking out of pleadings by parties 

C.) Amendment of pleadings 

D.) Subsequent pleadings 

Quiz 3 

1.)An interim injunction can be issued: 

A.) To prevent wastage or damage of property which is in dispute 

B.) To prevent the defendant from transferring the property with the intention of defrauding his creditors 

C.) To prevent the defendant from dispossessing the plaintiff of the property or causing other injury to the plaintiff by dealing with the property in any manner 

D.) All of the above reasons 

2.) In the event of a breach of an order for injunction by the defendant, the court may 

A.) Order the property of the defendant to be attached 

B.) Order the detention of the defendant in a civil prison 

C.) Issue a proclamation for the defendant 

D.) Both a and b 

3.) The maximum period of detention in civil prison prescribed under the CPC for breach of an order of temporary injunction is: 

A.) 1 month 

B.) 3 months 

C.) 6 months 

D.) 1 year 

4.) The maximum period of validity of an order of attachment for breach of an order of temporary injunction is: 

A.) 1 year 

B.) 1 month 

C.) 6 months 

D.) 3 months 

5.) In case the breach by the defendant of an order of temporary injunction continues even after the maximum duration (that is permissible under law) of the attachment order has passed, the available remedy is: 

A.) Sale of the attached property 

B.) Sending to rigourous imprisonment 

C.) Judicial custody 

D.) Fine 

6.)An ad interim ex parte injunction may be granted: 

A.) As per discretion of the court 

B.) Where the court is of the opinion that the object of granting the injunction would be defeated by delay 

C.) Where both parties agree 

D.) Only in cases where the subject matter of the suit is a perishable commodity 

7.) 1. Which of the statements below are true? 

1. Temporary injunctions are governed by CPC 
2. Perpetual injunctions are governed by CPC 

III. Temporary injunctions are only governed by Specific Relief Act 

1. Perpetual injunctions are governed by Specific Relief Act 

A.) II and III 

B.) I, II, III and IV 

C.) I and IV 

D.) I, II and IV 

Quiz 4 

1.) If it suspects that disputed property may be alienated or that the defendant may escape its limits, a civil court can exercise certain powers to protect the claim. Which of these is not within the ambit of such powers? 

A.) The power to order attachment of immovable property 

B.) The power to order the defendant to furnish security 

C.) The power to order the defendant to show cause why he should not furnish security 

D.) The power to order the defendant to offer agricultural produce as security 

2.)As per the CPC, which of the following courts cannot attach immovable property pending judgment: 

A.) High Court 

B.) City Civil Court 

C.) Small Causes Court 

D.) District Court 

3.)Pending determination of a suit, if a Small Causes Court suspects the defendant to move out of its jurisdiction or to alienate disputed property: 

A.) Issue a warrant of arrest requiring the defendant to show cause why he should not furnish security 

B.) Attach all kinds of property 

C.) Attach any property except immovable property 

D.) Both a and c 

4.) The process of attachment of property (for the purpose of security) before passing a judgment: 

A.) Is identical to the process of attachment at the time of execution for decree 

B.) Largely similar, but differs in minor respects 

C.) Is entirely different from the process of attachment at the time of execution for decree 

D.) None of the above 

To know more about types of Intellectual Property Rights for the purpose of AIBE preparation, please Click Here.

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This article is written by Ehtisham Ali, Law Graduate from Teerthanker Mahaveer University Moradabad (U.P).The articles discuss Examination of Witnesses Under Indian Evidence Act, 1872.

Introduction

Examination of witnesses is an important principle in which witness take a stand of his or her words. For the protection of the integrity of the evidence. It is a very important part of a criminal and civil trial. It is not important only for law students, it is also important for practising lawyers to know the art and law related to examination of witness.

Examination of witnesses under CRPC

Section 135 of Indian Evidence Act deals with the examination of witnesses present. In the Code of Criminal Procedure Section 311 empowers the court to summon a material witness, or to examine a person present at “any stage” of “any enquiry”, or “trial”, or “any other proceedings” under Crpc, or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it. Examination of witnesses is there in the Code of Criminal Procedure in all the trials either session trial, warrant trial,or summary trial. Examination of witnesses in CrPC are as follows:

• Session trial on prosecution and defence examination (Section 225-237)
• Warrant trial on the police report (Section 238-243)
• Warrant trial on the complaint (Section 244-250)
• Criminal trial on summon cases (Section 251-259)
• Summary trial (Section 260-265)

Examination of witnesses in criminal cases 

The examination of witnesses in criminal cases are present in all the trials of Code of Criminal Procedure, in the warrant trial when police made the report, examination of witnesses are performed by the prosecution after the charges are framed and accused pleads guilty, then the court gives the chance to prosecution to prove the guilt of the accused. Here prosecution needs evidence with statements from its witnesses. This is an examination in chief. In this condition, the magistrate has the power to issue summons to any person as a witness. After examination in chief, defendant can ask the cross-questions from the prosecution witness that is called cross-examination. After the cross-examination if the prosecution has some queries then he asks the question from the witness that is called re-examination. 

The court will examine the witnesses and complainant in the examination of witnesses in warrant trial on the same day after decide any offence is made against the accused or not. Then the magistrate order an inquiry in which the matter submit a report for the same. After the investigation and examination of complainant court may reach the conclusion if the complaint is honest and the prosecution has sufficient evidence against the accused. Then Court convict the accused and if the complaint is not genuine and the court does not find sufficient material through which complainant can convict the accused then Court dismissed the complaint. 

At the end after the examination of the complaint and inquiry report, if the court thinks evidence and material are sufficient, which are produced by the complainant with the prosecution to charge the accused in this situation Court may issue a warrant or a summons. There are different stages of the criminal trial in summons cases as provided in Section 251 to 259 of the Code of Criminal Procedure. 

The procedure of examination of witnesses in the summon cases are same as warrant trial, after the plea of guilty prosecution start the examination of witnesses. The examination of witnesses in a summary trial is same as summons cases and warrant trial. 

Examination of witnesses under CPC

Examination of witnesses is there in order XVIII of rule 4 to 16 in the Code of Civil Procedure. 

Order XVIII Rule 4

1. Rule 4 of Order XVIII said that party who called the witness for the examination of witnesses in every case shall be on affidavit and copies of the affidavit shall be supplied to the opposite party.
2. The examination of witnesses whether it is an examination in chief and cross-examination or re-examination by affidavit has been furnished to the court shall be taken either by the Commissioner or by the Court.
3. The Court or the Commissioner shall record the statement of witnesses during the examination of witnesses either in writing or mechanically in the presence of the judge if there is Commissioner in a case then he shall return such evidence together with his report in writing signed by him.
4. The Commissioner may record such remarks which are very important when objection raised during the recording of evidence. Which are decided by the Court at the stage of arguments.
5. The report which is made by the Commissioner must be submitted to the Court within sixty days.
6. The High Court and the District Court Judge has the power of preparing a panel of Commissioners to record the evidence under this rule. 

Order XVIII Rule 5 

How to take the evidence in appealable cases:

(a) brought down in the language of the Court;

(i) recorded as a hard copy by, or in the nearness and under the individual bearing and superintendence of, the Judge; or

(ii) from the dictation of the Judge directly on a typewriter; or

(b) if the Judge, for reasons to be recorded, so coordinates, recorded precisely in the language of the Court within the sight of the Judge.

Order XVIII Rule 6

Where the evidence is brought down in a language not the same as that in which it is given, and the witness does not understand the language wherein it is brought down, the proof as brought down recorded as a hard copy will be converted to him in the language in which it is given.

Order XVIII Rule 7

Evidence brought down under Section 138 of Indian Evidence Act and the evidence shall be in the form which is prescribed in Rule 5 of Order XVIII, after the read and signed as the event may require, interpreted and repaired as though it wore proof brought down under that rule.

Order XVIII Rule 8

When evidence not brought by the judge in writing for his command in the open Court or recorded automatically in his presence now he shall be bound for the examination of witnesses to make an update of the substance of what each observer expel, and such remainder shall be written and signed by the Judge and will shape some portion of the record.

Order XVIII Rule 9 

Where English isn’t the language of the Court, yet every one of the gatherings to the suit who show up face to face, if an advocate and the group of people does not know the english language then evidence not produced in the Court in English language. 

(2) Where proof isn’t given in English however every one of the gatherings who show up face to face, and the pleaders of such of the gatherings as show up by pleaders, don’t item to having such proof being brought down in English, the Judge may takedown, or cause to be brought down, such proof in English.

Order XVIII Rule 10

The Court may of it if any party file an application regarding a particular question and answer or any objection to any question brought down in the Court if there appears to be any special reason for so doing then Court will accept that application.

Order XVIII Rule 11

If there is question objected by the adverse party and pleader during the examination of witnesses then judge of the Court allows the same to be put and shall be brought down the question, the answer, the objection and the name of the person making it, with the decision of the Court.

Order XVIII Rule 12

The Court may record such comments as it might suspect material respecting the behaviour of any witness while under examination.

Order XVIII Rule 13

Cases in which appeal is not allowed then there is no need to bring down and maintain a record of evidence of witnesses at length, but the judge of the Court records all the examination of witnesses proceeds in a writing and prescribe to the typewriter, or cause to be automatically recorded for the remainder of the case with the sign of the judge.

Order XVIII Rule 14

Judges can not make such reminder to record reasons for his lack of ability.

Order XVIII Rule 15

(1)Where a Judge is prevented by death, move or other reason from closing the preliminary of a suit, his successor may manage any proof or reminder brought down or made under the prior standards as though such proof or notice had been brought down or made by him or under his course under the said principles and may continue with the suit from the phase at which his predecessor left it. 

(2) The arrangements of sub-rule (1) will, so far as they are material, be esteemed to apply to proof taken in a suit moved under Section 24.

Order XVIII Rule 16

Rule 16 of Order XVIII provide the power to examine witness immediately

1.  If the witness leaves the jurisdiction of the court or any other reason which are sufficient satisfaction why his evidence should be brought immediately then Court send the application to the party or of the witness at any time after the filing of the suit. Brought the evidence of such witness immediately.
2. If the Court thinks the reason which is given by the party or evidence is not sufficient then Court fixes the date for the examination of witnesses.
3. The evidence which is submitted to the Court read in front of a witness if there is any change in the evidence then corrected by the Court and signed by the witness and read at any hearing of the suit.

Order XVIII Rule 17

Court has power to recall the witness at any stage of the suit. And ask the question to him as the Court thinks fit.

Order of production and examination of witnesses

It is a lawyer’s privilege to check the order in which he examines the witnesses. According to the experience and skill witnesses are arranged. Prosecutor has the freedom to produce his witnesses in order which he likes. Section 135 of the Indian Evidence Act gives the power to the court to command or order in which the witnesses may be produced. 

Exclusion of witnesses from the courtroom

When the party starts the examination of witnesses of the evidence then the other witnesses must be kept out of the Courtroom. When the examination of one witness is completed then the next witness is called for the examination. And witness whose examination is completed, are not allowed to remain in the courtroom. If the witness remains present in the courtroom then he should be asked to go out. If any witness present during the examination of another witness then his examination can not be refused only a note to be made by the judge that he was present in the courtroom during the examination of another witness.

Delayed examination of a witness

If the examination of prosecution witnesses delayed then defence can not put any question to the investigation officer, the accused had no right to contend that there was a delay in recording the statement of prosecution’s witness and his evidence should be viewed with suspicion. It is not a universal rule of application that the testimony of a witness becomes undependable merely because of delay in his examination.

Admission and evaluation of witness statements

Evaluation of the testimony of a witness 

After the examination of witnesses by the court, the opportunity must be given to the party or parties for making observations. The observations may be made in writing after transmission of the minutes of taking of evidence which is exceptional or either in oral proceedings following the taking of evidence. The efficient department will be decided on this matter. The parties may file requests accordingly.

Efficient department decide the matter of proceed to evaluate the evidence only when a witness’s testimony which is crucial to the decision has been challenged by a party but the department regards it as credible, or when the witness’s oral or written testimony is forgotten in its decision as being not believable credible, the department attentive must state the grounds for its view in its decision.

In assessing an observer’s oral or composed declaration, uncommon consideration is to be paid to the accompanying: 

(i) What is significant is the thing that an observer can relate concerning the focuses at issue based on his own insight or perspectives, and whether he has useful involvement in the field being referred to. Recycled statements dependent on something got notification from outsiders are generally useless all alone. It is additionally significant from the perspective of the assessment whether the observer was engaged with the occasion himself or just is aware of it as an eyewitness or audience.

(ii) In case of long interims of time (quite a long while) between the occasion being referred to and the declaration, it ought to be borne as a main priority that a great many people’s capacity of review is restricted without the help of narrative proof.

(iii) Where declaration seems to struggle, the writings of the announcements concerned are intently contrasted and each other. 

Evident logical inconsistency in the declaration of observers may here and there be settled along these lines. For instance, a nearby assessment of evidently conflicting proclamations by observers about whether a substance X was usually utilized for a specific reason may demonstrate that there is in actuality no logical inconsistency by any stretch of the imagination, in that while one observer was stating explicitly that substance X was not utilized for that specific reason, the different observer was staying close to that substances like X, or a specific class of substances to which X had a place, were ordinarily utilized for this specific reason without expecting to own any expression in regards to substance X itself.

(iv) A representative involved with the procedures can be heard as an observer. The conceivable prejudice of an observer decides how the proof is surveyed, not whether it is allowable.

Relevance of the Testimony

During the examination of a witness when the witness gives the statement under oath, the statement of the witness must be relevant to the case. At the end of the examination of witnesses, the Judge of the court decides the relevancy of the testimony of the witness and admit the statement of the witnesses.

Reliability of the Testimony

Statement of the witness which are given during the examination of witnesses must be true under oath, and at last the Judge of the court decide the reliability of the testimony of the witness and admit the statement of the witnesses.

Judge to Decide as to Admissibility of Evidence

Judges have the power under Section 136 of Indian Evidence Act for the admissibility of evidence in the examination of witnesses and also check the statement of the witnesses which is given by the witnesses during the examination of witnesses that is relevant or irrelevant. Relevant evidence decided by the judges on the basis of In assessing an observer’s oral or composed declaration, uncommon consideration is to be paid to the accompanying: 

(i) What is significant is the thing that an observer can relate concerning the focuses at issue based on his own insight or perspectives, and whether he has useful involvement in the field being referred to. Recycled statements dependent on something got notification from outsiders are generally useless all alone. It is additionally significant from the perspective of the assessment whether the observer has engaged with the occasion himself or just is aware of it as an eyewitness or audience.

(ii) In case of long interims of time (quite a long while) between the occasion being referred to and the declaration, it ought to be borne as a main priority that a great many people’s capacity of review is restricted without the help of narrative proof.

(iii) Where declaration seems to struggle, the writings of the announcements concerned are intently contrasted and each other. 

Evident logical inconsistency in the declaration of observers may here and there be settled along these lines. For instance, a nearby assessment of evidently conflicting proclamations by observers about whether a substance X was usually utilized for a specific reason may demonstrate that there is in actuality no logical inconsistency by any stretch of the imagination, in that while one observer was stating explicitly that substance X was not utilized for that specific reason, the different observer was staying close to that substances like X, or a specific class of substances to which X had a place, were ordinarily utilized for this specific reason without expecting to own any expression in regards to substance X itself. 

(iv) A representative involved with the procedures can be heard as an observer. The conceivable prejudice of an observer decides how the proof is surveyed, not whether it is allowable. 

Scope

Scope of Section 136 of the Indian evidence act is very important as the witnesses comes in the court with the relevant statement because if the witnesses come in the court with irrelevant statement then judge of the court not admitted that statement of the witnesses in the case and due to this all the facts of the cases must be clear, this is also mentioned in the Section 5 of Indian Evidence Act all the facts of case must be relevant. Their are some rules of Section 136 of the Indian Evidence Act.

Rule 1

If any fact proved in the case which is proposed by the party in the evidence then a judge may ask the party in what the alleged fact would be relevant or not. A Judge will decide the fact must be relevant. If the evidence would not be relevant then the judge would not allow the party from proving it as because it would only waste the time of the court. In such condition court may disallow evidence.

Rule 2

If the party suggested the fact of the evidence which is proved in the court and also depend on another fact of the evidence then the other fact must be proved before evidence of the first fact is given. For example dying declaration, if a person wants to prove a dying declaration then he must prove that the declarant is dead. [Illustration (a) and Illustration (b)]. Here admission of fact depends on condition. 

Rule 3

Rule 3 is the exception of rule 1 and 2. If there is a relevancy alleged fact is there which depends on the proof of another alleged fact. In this condition, the judge may allow in his discretion the first fact to be proved without proof of the second fact. But in this condition, the party must undertake to prove the second fact to the satisfaction of the court Illustration (e).

As per the above rules, the question of admission of witnesses in the witnesses is to be decided by the judge. First, he invested all the evidence with wide discretion then allow evidence to be placed on records.

Examination in Chief

Examination in chief is defined under Section 137 of the Indian Evidence Act, when the party calls a witness in the examination of witnesses that is called examination in chief. Examination in chief is the first examination of witnesses after the oath. It is the state in which party called a witness for examining him in chief for the purpose of eliciting from the witness all the material facts within his knowledge which tend to prove the party’s case. It is also known as Direct Examination.

The objective of Examination in Chief

1. It overcomes the burden of proof legally sufficient.
2. Remembered and understand.
3. Persuasive.
4. Hold the cross-examination.
5. Contradictory and anticipatory and of evidence that the opposition will present. 

There is more objective of examination in chief are as follows:

1. Major objectives

1. All the evidence must be admissible.
2. The witness needs to present as intended and capable of being believed.
3. Each and everything related to the fact of evidence of the offence must be proven beyond a reasonable doubt through the witnesses oral evidence and exhibits.

 B. Minor objectives

You also achieve some additional objectives which are less essential but still important:

1. Present a complete and logical, rational theory of the offence.
2. Witnesses present in the best possible light.
3. Mention all the facts in the evidence and attempt to explain the relation between propositions that cannot both be true at the same time.
4. Limiting the exposure of witnesses through the shut down of potential cross-examination.

Examination in chief questions

There would be general questions asked in the examination in chief which is related to the facts of the evidence no leading questions are asked in the examination in chief. Leading questions are asked only in cross examination and re examination, first of all, prosecutor ask the question in the examination in chief in the criminal trial. 

Cross Examination

After finishing the examination in chief, cross-examination will start. In the cross-examination defendant lawyer asks the cross-question which was asked by the prosecutor. Defendant lawyer may ask the questions which are related to the facts and the defendant can also ask the leading question in the cross-examination which were not allowed in the examination in chief. Cross examination is very important in the examination of witnesses, due to the cross-examination many facts get clear because in the cross-examination defendant analyse all the statements of the witnesses then asks cross question related to the statement which was given by the witnesses in the examination in chief. The Defendant can also ask the question which was not related to the examination in chief but related to the facts of evidence.

Cross Examination in civil cases in India

All the witnesses in civil cases which are produced or examined by the court on the wish of parties must be presented before the court within 15 days from the date on which issues are framed or within such other period as the court may fix. Then parties have to file a list of witnesses in the suit. After that court can ask the witnesses for examination by sending summons or parties may call the witnesses by themselves. If the court issued a summons for asking the witnesses for the examination then the expenses which arise due to the calling of witnesses by issuing summons has to be deposited by the parties. The money deposited by the parties in this condition is known as “Diet Money”. The date on which the parties wish to produce and examine the witnesses in the court that is hearing. Now the hearing will decide the court on the date of hearing. First thing is done by the plaintiff”s examination in chief in which he asked the question which was seen by the witness. After that defendant ask cross-questions which were asked by the plaintiff in the examination in chief. And after the cross-examination is over at this stage the court will fix a date for final hearing. 

Cross Examination in criminal cases in India

There are different stages of cross-examination in criminal cases in the criminal trial in a warrant case instituted on the police report After the charges are framed, and the accused pleads guilty, then the court requires the prosecution to produce evidence to prove the guilt of the accused. The prosecution is required to support their evidence with statements from its witnesses. This process is called “examination in chief”. The magistrate has the power to issue summons to any person as a witness or orders him to produce any document. After the examination in chief, the adverse party asked the cross-questions to witnesses that is called cross examination.

Re examination

The party who attend the witness for the cross-examination shall be called re-examination. If the party not subjecting to cross-examination as per the court order then it is not safe to trust on examination in chief.

Difference between examination in chief, cross examination, re examination

Section 137 of Evidence Act and Section 145 of the Negotiable Instruments Act

Section 137 to 143 0f Negotiable Instruments Act laid down the procedure for the trial of discredited cheque cases in a very simple manner with the main aim that trial of those cases should follow a course in a very simple manner as compared to summary trial. Sometimes a special procedure fails to effectively and efficiently deal with the large multitude of cases coming to the Court. The argument that the complainant or any of his witnesses whose proof is given on affidavit must be made to force out in examination-in-chief all over again seem to be a request urgently for unimportant, duplication seemingly aimed at holding the trial. 

As per Section 145(2) of the negotiable Instruments Act, the court may, at its prudence, call a person giving his proof on affidavit and examine him as to the fact controlled therein. But if an application either made by the accused or by the prosecution, the Court has the power to call the person giving his proof on affidavit again to be examined as to the facts controlled therein. 

The point and nature of examination in each case different matter to be sensibly controlled in the light of Section 145(1) and having considered the aim and purpose of the entire scheme under Sections 143 to 146, Negotiable Instrument Act. In these Sections judge’s power is not affected in any way under Section 165 of the Evidence Act. 

Section 145(2) of the Negotiable Instruments Act under which the affidavit of the person summoned which is already on record is obviously in the nature of examination in chief. Hence, on being summoned on the application made by the accused, a person who testifies or gives a deposition of the affidavit can only cause to experience or suffer or make liable to cross-examination as to the facts stated in the affidavit.

Section 138 of the Indian Evidence Act

Order of examination

First of all, witnesses shall be examined in the examination in chief afterword cross-examination by the opposite party if the opposite party desires, at last re examination by the first party if the first party calling the witnesses for the re examination. All the examinations of witnesses must relate to relevant facts, but the cross examination no need to be controlled to the facts to which the witness examine on his examination in chief. 

Direction of re examination

The explanation of matters referred to in cross examination shall be directed by the re examination, and if new matter introduced in the re examination with the permission of the court the opposite party may further cross-examine upon that matter.

Examination of a witness

Section 137 and 138 are so related to each other that it would be suitable to deal with them together. There are three stages in which witnesses are examined, these are examination in chief, cross examination, re examination under Section137 of Evidence Act.While Section 138 of Evidence Act gives an order of examination in chief, cross examination, re examination. It also gives the extent to which examination in chief, cross-examination and re-examination may go. This Section does not deal with the admissibility of proof, but simply establish that a witness shall first be examined in chief, then cross examined and lastly re examined. 

No examination in chief and cross examination

If witness on particular facts and issues not examined in the examination in chief and he has not been cross-examined on the said aspect of the matter by the defence.

Admissibility of evidence of a person with unfinished cross examination

At the point when evidence of the defendant was recorded on commission. If there was a death of defendant and cross-examination was only partly held. Now his evidence will be admissible as there was no provision under law that if the witness was not cross-examined either in full or part his evidence would be absolutely rendered inadmissible. It is further held that the provision of Section 33 will not be applicable in such a case and how much weight shall be attached should be decided considering other facts and circumstances surrounding it.

Cross examination : A wide scope

Section 138 of the Indian Evidence Act provides a wide scope for cross examination. What is spoken to in examination in chief is not to be controlled. Section 138 of the Act clearly provides that examination in chief and cross examination must relate to relevant facts in the opening part of the second half of the Section. But the facts to which the witness had stated in his examination in chief need not be controlled in cross examination. Therefore, the question must be relevant to the fact in cross examination which was necessary to be proved by that witness. If there is any difference in respect of the relevancy of the facts was acceptable only to the dependability, character and such other things concerning the witness.

That was the reason why the scope of cross examination of the witness is wider, in order to present the quality of being believable of the witness or otherwise. The defendant can not use to establish the case in which he was required to independently establish by producing relevant documentary or oral proof to discharge the burden which was cost on him with the presence of such a wider scope of cross examination which is conferred for purposes of cross examination. If by mistake any party comes to the witness-box and take an oath and deposes about a document, he becomes a witness and must be liable to be cross examined by his defendant. Cross examination of his maybe about the whole case. If cannot be controlled to only the facts declared by him in examination in chief. If any witness proving a document may be defendant can be cross examined on another point. 

All the questions are permissible which are asked to challenge the evidence in examination in chief. There is no provision regarding cross examination should be controlled and what is agreed by a witness and cannot clarify the answers to challenge in cross examination. Every accused against him a prosecution witness gives evidence is entitled to cross examine the prosecution’s lawyer. Such a statement may be made in the cross examination of another witness or in the examination in chief. An accused is entitled to put an additional question to a prosecution witness by way of cross examination in respect of what he had declared in answer to questions put to him in cross examination by the other co accused.

If the evidence relevant which is given by one defendant against a co defendant, he is entitled to cross examine the deposing defendant. The defendant may cross examine the witness which is produced by the other defendant, even if they have a common defence. If the one defendant is refused permission to cross examine the witness then the evidence produced by the other defendant not admissible.

The important part of the case to be put in cross examination

It is a rule of justice which plays an important and crucial role, that a party must put in the cross examination of a witness in a case. It is a strong rule of evidence that party should use to each of his opponent’s witnesses so much his case as care that particular witness. The courts assume that the witness’s account has been accepted if no questions are put. Witness attention must first be directed to the fact by cross examination, if it is intended to suggest that a witness was not speaking the truth upon a particular point so that he may have an opportunity of giving an explanation. 

The examination in chief cannot rely upon if a witness after being examined up to the phase of examination does not subject to cross examination in spite of the order of the court.

If the witness had testified on his examination in chief need not be controlled to facts in the cross examination of a witness, order refusing to grant permission to put questions beyond the contents of punchnama could not be sustained. 

Effect of not cross examining

When there is no cross examination on such point which fact is stated in examination in chief, that point naturally leads to making a logical judgement on the basis of circumstantial evidence and prior conclusions rather than on the basis of direct observation that the other party accepts the truth of the statement.

When the evidence given by a witness is as such unreliable and on the face of it is not acceptable his non cross examination cannot gather believability.

Failure to cross examine will not always amount to an acceptance of the witness’s testimony, when the story incredible with the romantic character which tells by the witness during the cross examination.

The specific fact that the witnesses examined by the opposite party have not been effectively cross examined, does not mean that the Court is not liable to accept their evidence. Courts are not prevented from assessing the truth of witnesses in the absence of any cross examination.

No opportunity is given to cross examine a witness.

If there is no such opportunity is given to cross examine a witness his proof must omit from consideration. The evidence of witness is not produced for cross examination but examined before the charge is framed is not admissible.

In Union of India v. T.R Verma, it was held that if in the deposition of the witnesses, there was no cross examination because there was no record made, it can be said that, in fact, the party entitled to cross examine did not cross examine and not that the opportunity to cross examine was not admitted. But there are five exceptions in this rule:

1. Where the witness had noticed early.
2. Where the story itself is of unbelievable or romantic characters.
3. Where the non cross examination is from the motive of fineness.
4. Where the counsel indicates that the witness is not cross examined to save time.
5. When some witnesses are examined on the same point, there is no need to cross examined all the witnesses.

Misleading questions

Any kind of misleading questions cannot be allowed during the cross examination of witnesses.

Effect of witnesses not presenting for cross examination.

If any witness examined in the examination in chief but does not appear in the cross examination then his evidence becomes valueless and cannot be examined further.

In Harpal Singh v. Devinder Singh, it was held by the Supreme Court that prosecution has prudence not to examine certain witness so that proliferation of proof is avoided. Opposite illation cannot be drawn from non examination of material evidence.

Tendering a witness for cross examination

Offering a witness for practice cross examination only is illegal, bad and invalid. This amounts to a failure of the prosecution to examine the particular witness at the trial.

There is no provision in that Act for permitting a witness to be offered for cross examination without his being examined in chief and this practice is against the Section 138 of the Act. The material witness should be examined and then he may be cross examined.

An offer of a witness for cross examination amounts to giving up the witness by the prosecution as it does not choose to examine him in chief. Non examination of witness in chief examination seriously affects the believability of the prosecution case.

Examination and cross examination must relate to relevant facts

It need not be troubled that the cross examination and examination in chief must relate to relevant facts. The irrelevant fact cannot be allowed to be brought on record either by cross examination or by examination in chief.

Mode of recalling and cross examining of witness

If defence thinks for recalling the witness then the defence can request for recalling of witness, after getting a sanction of Court provided the cross-examination is for challenging the honesty on strength of alleged former statement which came on record at a later stage.

Power of the Court to control the examination of a witness

An examination of witnesses which are relatively long in duration putting irrelevant questions only to increase the size of the record is to be made less hopeful. It is an action that an abuse of this kind, which hugely increases the costs of litigation without any corresponding benefit to the parties should be checked.

Cross examination is one of the most important processes for the interpretation of facts of a case and reasonable parallel should be allowed, but the judge has to act freely as far it may go or how long it may continue. A fair and reasonable exercise of this discretion by the judge will not generally be questioned by an appellate Court.

Court proceeding must always be controlled by the judge of the Court. On the one hand the right of cross examination must be carefully restrained, and it must be remembered that it may be essential as how for an advocate to approach exquisitely and with caution the point upon which he is seeking to obtain admission. It may be important that a witness whom he does not regard honest should not be put on his guard by immediate demonstration of the case set up by the opposite party. If questions are framed in too pointless a form he may easily deny them. Hence, the large latitude is attractive since the admission sought to be induced only be forthcoming when the witness, if he is revealing something thrown off his guard and there are cases in which it is essential to drop a particular issue in the course of cross examination and to unturn to it again with discretion at a later stage. Lengthy irrelevant cross examination has to be stopped on the other hand.

A Court should take a firm stand that the witness should know and comprehend the nature or meaning of the question put before an answer has to be recorded. A Court would not work in a limited time period during the cross examination. 

Re examination

The party re examine the witness who called the witness may if he likes and if it be essential. The re examination must be confined to the explanation of matters grow in cross examination. The proper intention for re examination is by asking questions as may be proper to pull forward and explanation or meaning of expression used by the witness in cross examination, if they are questionable. New matters may be introduced only by the permission of the court, and if that is done, the opposite party has a right to cross examine the witness on that point.

In re examination of witness examination in chief cannot be added to the very end by starting totally new facts for the first time. The intention of re examination is only to get the clarification of some questions created in the cross examination.

Any number of questions

There is no limitation that re examination should be limited to one or two questions and if the urgent situation requires any number of questions can be asked in re examination.

Hypothetical questions should be disallowed.

Hypothetical questions may be put to an expert as per Section 45 of the Act. But hypothetical questions cannot be put to ordinary witness during the examination of witnesses. Courts cannot allow hypothetical questions to the ordinary witness.

Section 139 of the Indian Evidence Act

Cross examination of person called to produce documents

“A person summoned to produce a document does not become a witness by the mere fact that he produces it, and cannot be cross examined unless and until he is called as a witness.”

If a person has the document in his possession then person is summoned only to produce a document, he may appear in Court and produce the documents. He may inform the Court by an application stating that he has no possession of the document if the document summoned is not in his possession. Summon has been issued to a person even if a person produces the document to that summon. Section 139 of Indian Evidence Act clearly provides that he does not become a witness by the simple fact that he produces it and he cannot cross examined unless he is called as a witness. If the person has not produced the documents then the Court cannot record the statement of such person on oath to satisfy itself regarding the whereabout of the document. 

Section 140 of Indian Evidence Act

Witnesses to character may be cross examined and re examined.

Scope

The character of a party to a civil suit cannot be relevant to decide an issue in that suit under Section 52 of Indian Evidence Act. The good character of the accused is relevant in criminal cases under Section 53 of Evidence Act. Under Section 54 in criminal cases the bad character of the accused is irrelevant but when the evidence of his good character is given, the evidence of bad character becomes relevant. Under Section 55 of the Evidence Act where the character of a person is such as to affect the amount of damages which he should receive it is relevant. The person who gives the testimony regarding the character of a person may be cross-examined and re examined, the act of causing something to move up and down with quick movements his credit. The character evidence helps the Court to estimate the value of evidence given against the accused in criminal cases.

In Haagen Swendress Holt C.J stated that a man is not born a jack, there must be time to make him so, nor is he shortly discovered after he becomes one. A man may be regarded as an able man this year, and yet be a beggar the next, it is unfortunate that happens to many men and this former reputation will signify nothing to him upon this event.

Section 141 of Indian Evidence Act

Leading questions

Any question which make a proposal to the answer which the person putting it wishes to receive, is called a leading question.

Scope

Section 141 of Indian Evidence Act defines “leading question”. Section 142 of Evidence Act lays down that leading questions must not be put in examination in chief and re examination without the permission of the Court. It also lays down that the court should permit leading questions in examination in chief or re examination only as to the matters which are begin, which are unchallenged or which are already been sufficiently proved in the opinion of the Court. Leading questions may be put in cross examination under Section 143 of Indian Evidence Act.

Leading questions 

A question is leading one when it point to witness the real or obligated fact which the examiner expects and desires to be confirmed by the answer. The circumstances in which the question arises determined whether a question is leading or not. Is the plaintiff your father? Have you not lived for 8 years with him? Is this man 55 years of age? Is not your name Hemant? Do you reside at Gwalior? Are you not in service of Hemant? Have you not lived for nine years with Hemant? Are the example of leading questions. The examiner clearly suggests the answer to these questions. In such questions the examiner putting the questions is really giving answer rather of receiving it from the witness. In leading questions while the examiner believe the lack of knowledge and is asking for information but he really gives the answer himself rather of receiving it. 

Generally, the answers of leading questions are given by yes or no. But it cannot be said that in order to stamp a question leading the answer to it must be as yes or no.

A leading question is that which signals to the witnesses the real or obligated fact which the prosecutor expects and desires to have confirmed by the answers leading to questions. 

Section 142 of Indian Evidence Act

When they must not be asked

If objected by the opposite party leading questions must not be asked in examination in chief, or in a re examination without the permission of the Court.

The Court shall permit leading questions as to matters which are begin or unchallenged or which have in its opinion been already sufficiently proved.

Scope 

Section 142 of Indian Evidence Act stated that leading questions should not be asked in examination in chief or re examination of they are objected to. 

The Court may give the permission of leading questions to pull the attention of the witness which cannot otherwise be called to matter under inquiry, trial and investigation. The witness must report for what he himself had seen.

Exceptions to this rule

Section 142 of Indian Evidence Act provides exceptions to the general rule stated above. By the order of the Court, examiner may put leading questions in examination in chief or re examination.

1. As to matters which are begin.
2. Which are unchallenged.
3. Matters in which the opinion of the Court have already been proved.

The Court can allow a party examining his own witness to put leading questions by way of cross examination. These are exceptions under Section 154 of Indian Evidence Act.

If objected to

It should be kept in mind that if the adverse party makes any objection, leading questions may not be put in examination in chief or re examination but such questions may be put in examination in chief or re examination if the Court overrules objection.

Matters of record 

Leading questions may be asked in examination in chief about the matters of record.

Permission of the Court 

There is no legal hurdle in putting leading questions during the examination in chief, if there opposite side does not object without permission of the Court. Need to receive permission of the Court to put leading questions whould arise only in the eventuality where the opposite side takes objection. Even if the opposite side objects, the Court has a broad prudence in allowing leading questions to be put. The second para of Section 142 of Indian Evidence Act shows that the Court has no prudence to not allow a leading question if it relates to unchallenged matters or introductory matter or matters already proved. The prudence to allow or not allow a leading question can be exercised by the Court only when such leading question relates to matters other than those recited above.

Section 143 of Indian Evidence Act

When they may be asked Leading questions may be asked in cross examination.

No misleading question in cross examination

A counsel cannot asked a question in cross examination forward that some facts have been proved or admitted. Imagine a witness appears for the plaintiff, the defendant tries to show that the witness is a driver of the plaintiff so he is a curious witness. The proper question to be asked by the defendant in cross examination would be “Are you a driver of the plaintiff?” A question “How long have you been in the service of the plaintiff?” is not proper as it take for granted that the fact the witness is a driver of the plaintiff has either been proved or it has been admitted by the witness.

Imagine, the case of a wife against her husband is that he misbehaves and beats her but the husband did not accept the allegation. The husband appears in court for not accepting the allegation. The cross examiner cannot asked a question “May I ask if you have left off beating your wife?”, this type of questions are misleading.

Section 144 of Indian Evidence Act

Evidence as to matters in writing

Any witness may be asked although under examination whether any contract grant or other temperament of property as to which he is giving evidence was not controlled in a document and if he says that it was or if he is about the opinion of the Court ought to be produced the opposite party may object of such evidence being given until such document is produced or facts have been proved which entitle the party who called the witness give secondary evidence of it. 

Section 145 of Indian Evidence Act 

Cross examination as to previous statements in writing 

As per previous statement made by a witness may be cross examined in writing or decreased into writing and relevant to matter in question without such writing being proved or shown to him but if it is calculated to negate him by writing his attention before the writing can be proved to be called to those parts of it which are to be used for the purpose of negate him. 

Scope 

Challenge the honesty or truth of the credit of a witness by cross examination comes under Sections 138,140,147,148 and 154 of Indian Evidence Act. The procedure by which a witness may in cross examination be contradicted by his previous statement of writing or decreased into writing provided under Section 145 of Indian Evidence Act. Whether witness made a previous statement in writing or decreased into writing relevant to the matter of issue different from his present statement without such writing being shown to him or proved he may be asked in cross examination. But if it is intentionally to contradict him by writing his attention must be tried to it.

Rarely a person makes a certain statement which is in writing. Afterward he makes a statement different to what he has previously stated in the same case of proceeding. The present statement of the witness may be contradicted by previous statement to show that he is not speaking the truth under Section 145 of Indian Evidence Act.

Use of the previous statement

Under this Section a previous statement which contradicts a witness is not be used as substantive evidence in the case of the facts contained therein. The purpose of previous statement with contradict is to prove that the statement made in the Court is not reliable. The previous statement is not accepted as true. The one merely waste the other.

Cross examination as to previous statement

If the previous statement without showing him the writing is relevant to the matter in issue then witness may be cross examined. Witness with reference to his previous statement on the ground that the document which contained the statement is not being produced at the time of cross examination then the Court cannot refuse to allow the cross examination of witness.

Intended to contradict

As seen above on the basis of previous statement in writing relevant to the matter in issue without the writing being shown him a witness may be cross examined. But if it is intended to contradict a witness by the writing his attention must before the writing can be proved to be tired to those parts of which are to be used for the purpose of contradicting him.

Attention must be called 

The Section stated that if the previous contradictory statement of a witness is calculated to be proved his attention must be called to it. The aim of this procedure is to give the witness a chance of explaining his statement before the contradiction can be used as evidence. If this opportunity is not given the contradictory writing cannot be placed on the record as evidence.

Previous admission to contradict 

If the previous admission are clear can be used without a face and even if the makers are not produced in the Court.

Relevant to the matter in issue

Chapter II of Indian Evidence Act 1872 must be relevant with the previous statement with which it is intended to contradict a witness.

Of the witness himself

The witness who is being cross examined the previous statement of the witness must be comes from there. Ram was employed by Shyam to write Ram’s accounts books. Shyam supplied Ram with necessary information. In this case Ram cannot be contradicted with the entries in the account books, it is not his statement rather it is the statement to Shyam. Previous statement of a party not to contradict his witnesses and can be used only to contradict him.

Previous statement not substantive evidence

A previous statement used to contradict a witness does not become essential evidence and only serves the purpose of throwing uncertainty on the truth of the witness.

Section 146 of Indian Evidence Act 

Questions lawful in cross examination

When a witness is cross examined he may in addition to the questions hereinbefore mentioned to be asked any questions which given

1. To test his truth;
2. To find out who he is and what is his position in life; or
3. To shake his credit, by injuring his character, while criminate him, or might expose him to punishment or forfeiture.

Scope

Section 132,138,146,147 and 148 of Indian Evidence Act cover the full range of questions which can be put in good order to a witness. Cross examination must relate to relevant facts under Section 138 of the Act. “The examination and cross examination of a witness must relate to relevant facts” runs as per second para of Section 138 of Indian Evidence Act. The words in Section 146 “in addition to the question hereinbefore mentioned to” have reference to the para of Section 138 mentioned above. 

To test his veracity 

A witness may be cross examined not only as to the relevant facts but also as to all facts which fairly run to affect the believability of his testimony. The statements of a witness being of their nature it is right to subject them to document charging a public official with misconduct in the proper ways. So it is capable to the parties to ask about any question in cross examination which he may see important to test the truth of the witness. A witness may always be subjected to an exact cross examination as a test of his truth his understanding his unity his basis and his means of judging.

To discover who he is and what is his position in life

It is a common pattern to make research into the relationship of the witness with the party on whose behalf he is called social and family and business also to research as to his feeling towards the party against whom his testimony is being given. This is tolerable in order to place testimony in a proper light with reference to prejudice in prefer of one party or bias against the other.

To shake his credit by injuring his character

In deciding the relevancy of character as moving the credit to be given to a witness the first question is what kind of character is relevant? Wheather bad moral character in general or some other general bad quality in particular is acceptable. Sometimes it is argued that bad specific character necessarily involves an impairment of the truth telling capacity. 

Section 147 of Indian Evidence Act

When witnesses to be compelled to answer

If any such question connected to a matter applicable to the suit or proceeding the provision of Section 132 shall apply to that.

Scope 

The word ‘such’ in this Section mentioned in the last clause of the above Section. Relevancy of character is of double: it may be directly to the point in its bearing on proving or proving to be false the very virtue of the points in issue. If any witness is asked a question in cross examination about his character and that character is directly to the point in proceeding the witness is not secured from answering under Section 147 of the Act. He will have to answer the question all the same that the answer may accused him because Section 132 is made relevant to this case. Where questions are asked to a witness not for the intent of proving or proving to be false a point in issue but entirely and merely to show what is the character of a witness. The Court is to determine whether the question is to be answered or not as per the rules given under Sections 148,149 and 150.

Section 148 of Indian Evidence Act 

Court to decide when question shall be asked and when witness compelled to answer

If any such question about to matter not applicable to the suit or proceeding excluded in so far as it impacts the credit of the witness by injuring his character. The Court shall determine whether or not the witness shall be obliged to answer it. In exercising its prudence the Court shall have consider the following considerations:

• Such questions are proper if they are of such a nature that the truth of the statement attributing something dishonest conveyed by them would seriously impact the idea of the Court as to the believability of the witness on the matter to which he certify.

• Such questions are incorrect if the statement attributing something dishonest which they convey about to matters so remote in time or of such a character that the truth of the statement attributing something dishonest would not impact or would impact in slight degree the idea of the Court as to the believability of the witness on the matters to which he certify.

• Such questions are incorrect if there is a great disproportion between the importance of the statement attributing something dishonest made against the witness’s character and the importance of his proof.
• The Court may if it sees fit pull from the witness’s refusal to answer the illation that the answer if given would be critical.

Putting of indecent questions

Improper and disgraceful questions can be put if they connect directly to the fact in issue and also if it is essential to be known in order to decide whether or not the facts in issue existed, the freedom are critical and if the Court is contented that even a disgraceful question may have bearing the same cannot be prohibited.

Principle

As seen supra when character is about to issue witness has to answer it: but if the character is about to shake the credit of the witness it shall be in the prudence of the Court to allow or not allow the question. It is essential to make sure provision against a rush and unforgiving cross examination. It would be great adversity if every person who came forward to give evidence was likely at the feeling of unscrupulous cross-examiner to have every detail of his private life dragged into the light and to be obliged to answer all the questions which are asked only to defame him.

Section 149 of Indian Evidence Act

Question not to be asked without logical grounds

No such question mentioned in Section 148 should be asked unless the person asking it has logical grounds for thinking that the statement attributing something dishonest which it conveys is well founded.

Illustrations 

(a) A barrister is teach by an attorney or vakil that an important witness is a kidnapper. This is a logical ground for asking the witness whether he is a kidnapper. 

(b) An Advocate is informed by a person in Court that an important witness is a kidnapper. The informant on being questioned by the Advocate gives a satisfactory reason for his statement. This is a logical ground for asking the witness whether he is a kidnapper.

(c) A witness, of whom nothing whatever is known is asked at random whether he is a kidnapper. There are no logical ground for the question.

(d) A witness, of whom nothing whatever is known, being questioned as to his mode of life and means of living, gives disappointing answer. This may be logical ground for asking him if he is a kidnapper.

No disgraceful question without grounds

No disgraceful question should be asked unless there are logical grounds to believe them to be true.

Section 150 of Indian Evidence Act

Procedure of Court in case of question being asked without valid grounds.

If the Court is thought that any such question was asked without valid grounds, it may, if it was asked by any barrister, attorney, vakil or pleader, describe the circumstances of the case to the High Court or other authority to which such barrister, attorney, vakil or pleader is subject in the exercise of his profession.

Section 150 is penal

Section 150 is the punishment that may secure against reckless cross examination, if the Court thought that the questions were asked without valid grounds.

Section 151 of Indian Evidence Act

Indecent and disgraceful questions

The Court may disallow any questions or inquiries which it considered indecent or disgraceful, although such questions or inquiries may have some interconnection on the question before the Court.

Section 152 of Indian Evidence Act.

Question calculated to insult or irritate

The Court shall not allow any question which look to it to be calculated to insult or irritate, or which, though proper in itself, appears to the Court needlessly offensive in form.

Scope

Under Section 149 no question as mentioned in Section 148 of the Evidence Act ought to be asked unless the person asking it has some valid grounds for encouraging the statement attributing something dishonest which it conveys to be true. Question may be asked for which there are only valid grounds for thinking that the statement attributing something dishonest controlled in them are all well founded and it is by no means necessary before the question is asked that the person asking it should be in a place to constitute the truth of the statement attributing something dishonest beyond all uncertainty.

The Court cannot disallow indecent or disgraceful questions if they are about to fact in issue. If they have, however, but some interconnection and may disallow them. Where a question is calculated to insult or irritate or through paper in itself, appears to the Court needlessly offensive in form, the Court must be between for the protection of the witness.

Section 153 of Indian Evidence Act

Exclusion of evidence to contradict answers to question testing truth.

When a witness has been asked and answered any questions about the inquiry only in so far as it be given to shake his credit by injuring his character, no proof shall be given to contradict him, but if he answers falsely, he may after that be charged with giving false evidence.

Exception 1. If a witness is asked whether he has been at an earlier time acquitted of any crime and not admitted it, evidence may be given of his previous acquittal.

Exception 2. If witness is asked any question attending to challenge the honesty or truth his impartiality, and answer it, by denying the facts advised, he may contradict. 

Principle

It is obvious that question asked but to disrepute a witness by injuring his character introduce matters completely foreign to the inquiry and that if arguments about matter so introduced is allowed the Court would be occupied with determining not the merits of the case but merits of the witness and thus case might be indefinitely secure. 

Scope

Where a fact inquired after is related to the issue. And for example the character of a witness the advocate must be disputed or made the object of contention or competition with the answer which the witness chooses to give. If he denies the statement attributing something dishonest the answer is conclusive for the purpose for the case.

Evidence to contradict relevant facts

Where a fact which about as having direct interconnection at the issue is denied by a witness, it may surely be proved by irrelevant evidence, and his answer may thus be contradicted by independent evidence. So the statement of a witness for the defence that a witness for the prosecution was at a particular position at a particular time and accordingly then he would not have been at another position, where the latter states he was and saw the accused person properly acceptable in evidence.

Section 154 of Indian Evidence Act

Question by party to his own witness

The Court may in its prudence permit the person who calls a witness to ask any questions to him which might be asked in cross examination by opposite party.

Nothing in this Section shall deprive entitlement to the person so permitted under sub Section to trust on any part of the evidence of such witness.

Principle

A witness is generally force out to state in favour of the person producing him. He will mostly not be given to state anything good to the opponent if he can help it. It is, therefore, allowed that the opponent in order to unravel the truth, may cross-examine the witness, ask leading questions and challenge the truth under Section 145 and 146. 

Scope

This Section allows a party the permission of the Court to cross examine his own witness in the same way as the opposite party. Such cross examination means that he can be put.

1. Leading question under Section 143 of the Act.
2. Questions about his previous statement in writing under Section 145 of the Act.
3. Questions to be given to test his truth, to discover who he is and what is his place in life or shake his credit under Section 146 of the Act.

Ask any questions

It is not cross examining his own witness but with the permission of the Court, it is putting him leading questions. This is not like cross-examining. There are two observations which is stated by the CJ Rankin. First, the reason why Section 154 does not say a party may cross-examine his own witness with the permission of the Court is simply that this would in strictness be a contradiction in terms. The second observation is that while asking of questions in leading form is not essentially equivalent to cross examination, there is no uncertainty as to the power of a judge to give leave to ask a leading question to one’s own witness. 

Adverse or hostile witness

Under this Section the party calling a witness may with the permission of the Court, ask leading questions and cross examine him. It frequently occurs that a witness who has been called in the outlook that he will speak to the existence of a specific state of facts, pretends that he does not remember those facts or force out entirely different to what he was awaited to depose. In such cases questions rises whether by the deal of the witness the party producing him is eligible to cross examine.

Prosecution witness when can be declared hostile

A prosecution witness can be announced when he contract from previous statement made under Sections 161 or 164, Cr.P.C. Besides this when a prosecution witness turns hostile by stating something which is harmful to his prosecution case, this prosecution is eligible to get this witness announced hostile.

Cross examination without pronouncing hostile

Before the party calling the witness can cross-examine him it is not essential that the witness should be pronounced hostile. Questions of cross examination can be permitted by the Court to be asked the party calling him even though the witness does not show to be hostile. When the opposite party has evoked new matter, in cross examination, from a witness the Court may allow the party examining the witness to test his truth.

Permission of court 

Witness must obtain the permission of the Court, before the party calling the witness can cross examine him. The allotting of permission is entirely the prudence of the Court. The prudence has to be exerted with caution. Without sufficient reason it should not be exercised. It is not possible to establish a hard and fast rule.

It is to be liberally exercised, whenever the Court from the witness’s behaviour, temper, attitude, interconnection or the tenor and disposition of his answers from the studying of his previous inconsistent statement or otherwise thinks that the grant of such permission is advantageous to pull out the truth. 

Value of the evidence of a hostile witness

Hostile witness’s statement can also be examined to the extent it supports the prosecution case. In case of evidence of a hostile witness, the Court has to act with a greater degree of care and caution to secure that justice alone is done. The proof so advised should unequivocally point towards the guilt of the accused. The fact that a witness is treated under Section 154, Evidence Act, even when under that Section he is cross examined to disrepute, in no way warrants a direction to the jury that they are bound in law to place no reliance on his proof or that the party who called and cross examined him can take no benefit from any part of his evidence.

Failure of prosecution to seek declaration related to hostile witness

When the prosecution failed to look for permission of the Court to declare his witness “hostile” his evidence alternatively of supporting the prosecution supported the defence, there was nothing in law to prevent the defence to trust on the evidence of such witness and his evidence was binding on the prosecution.

Section 155 of Indian Evidence Act

Impeaching credit of witness

The credit of a witness may be challenged for the honesty or truth in the following ways by the opposite party or with the permission of the Court by the party who calls him.

1. By the evidence of persons who take the stand that they from their knowledge of the witness believe him to be undeserving of the credit.
2. By the evidence that the witness has been corrupt or has accepted the offer of a bribe or accept any other corrupt incentive to give this evidence.
3. By evidence of previous statements variable with any part of his evidence which is liable to be contradicted.

Scope

Section 155 of the Act orders for challenging the honesty or truth for credit of the witness. Sections 138,140,145 and 154 provide for challenging the honesty or truth for credit of a witness by cross examination. Section 146 permits questions injuring the character of a witness to be asked to him in cross examination. Section 155 make a different method of discrediting a witness by allowing independent evidence to be led. This Section make four different ways in which the credit of a witness may be challenged the honesty or truth.

Clause 1

Independent proof may be given that a witness examined by the opponent bears such a general reputation for untruthfulness that he is undeserving of credit. The witness must be able to state what is normally said of the person by those among whom he lives.

Clause 2

Independent proof may be given to prove that the witness has been corrupted or has accepted the offer of a bribe. But it should be call back that where the witness in question has been but offered a bribe. No illation of any sort as to the testimony of the witness can be drawn. But demand of bribe by the witness should be proved. 

Clause 3 

Under clause (3) the credit of a witness may be challenged the honesty or truth by evidence of his previous statement with any part of his statement before the Court.

Is the witness to be cross examined

If a witness intentionally to be contradicted with his previous statement in writing, the attention of the witness must be drawn to it. Though under the terms of the present Section it is not essential to cross examine and face the witness by the previous oral statement, before it can be proved, yet it is both common and better and just to be the witness to first interrogate him just give him a chance to explain if he can.

Section 145 and clause(3) of Section 155

Under Section 145 of Indian Evidence Act a witness can be cross examined and opposed only with that previous statement which was made in writing or was decreased to writing. That Section is not relevant to oral previous statements. The clause(3) of the Section is so give voice that statements, written or verbal, may be used to challenge the honesty or truth the credit under it but where the previous statement is in writing the provisions of Section 145 should be followed.

Section 52 and 155

Sections 155 and 52 deal with different matters. Section 52 disallow character evidence in consider to subject matter of the suit. Whereas Section 155 dictate the manner of impeaching the credit of witness. Section 155 cannot therefore be interpreted as an exception to Section 52.

Tape recording 

Tape recording is admissible under Section 155 sub clause(3) to challenge the honesty or truth the credit of the witness. Before taped statement can be trusted upon the time and place and accuracy has to proved.

Section 156 of Indian Evidence Act

Questions tending to substantiate evidence of applicable fact, admissible

When a witness whom it is calculated to confirm gives evidence of any relevant facts, he may be questioned as to any other circumstances which he discovered at or near the time or place at which such applicable fact happened, if the Court is of the opinion that such circumstances if proved would confirm the testimony of the witness as to the applicable fact which he testifies.

Section 157 of Indian Evidence Act

Previous statements of witness may be proved to confirm latter testimony as to same fact

In order to confirm the testimony of a witness, any previous statement made by such witness connecting to the same fact, at or relate the time when the fact took place, or before any authority legally able to investigate the fact, may be proved. 

Scope

This Section allows a witness to confirmation by evidence that he said the same thing on the previous occasion, the only condition being that his previous statement shall have been either about the time of the happening or before effective authority. The force of any confirmation by means of previous pursuant statement obviously depends upon the truth of proposition that he who is pursuant deserves to be believed.

Conditions for admitting statements

The previous statements made under either of the two following conditions may acknowledged for confirmation under this Section.

1. The statement must have been made at or around the time when the fact took place.
2. It must have been made before any authority legally effective to investigate the fact. 

At or about the time

This Section provides an exception to the general rule of excluding indirect evidence and so in order to bring a statement within the exception the duty is cast on the prosecution to abolish by clear evidence to nearness of time between taking position of the fact and the making of the statement. There can be no fast and hard rule. The main test is whether the statement was made as early as can fairly be awaited in the circumstances of the case, and before there was an opportunity to be a tutor to someone or intermixture. The word “at about the time” must mean that the statement must be made at once or at least presently after when a fair opportunity for making it presents itself.

Before any authority competent to investigate the fact

If the previous statement was not made at or about the time when the fact took place, it must be shown to have been made before any authority legally capable to investigate the fact. If the statement was not made at or about the time the event took place nor before an authority legally capable to investigate the fact would not be acceptable.

A statement made by a witness can be used to contradict him or impeach his credit before Commission.

A statement about a fact made on previous juncture before a Collector who had no authority to investigate the fact cannot be used under Section 157 of Indian Evidence Act.

Persons liable to investigate

The words ‘authority to investigate’ are quite and general and should not bound to police officers and investigations in technical way in which the word has been used in CPC. The Section takes competency of authority to investigate the fact not the case. The words ‘legally efficient to investigate’ does not mean only efficient under some provision of law.

The statement made to the legally efficient authority investigate the case.

Where in a case of shocking the modesty of women, DGP was legally approved by the state government of Haryana to investigate this case, the statement made by a witness to him were held to be admissible disregardless of fact that the statement was made long after the incident. The statements made by witnesses are of two categories. First is when witness made a statement to any person at or about the time when the incident happened. The second when witness made a statement to any authority legally capable to investigate the matter. These statements are acceptable no matter it is made long after the incident. The statement made to non authority loses its important value due to lapse of time.

The statement communicated to others.

Something that is stated and the element of communication to another person is not essential becomes a statement under Section 157 of the Evidence Act. Hence the notes of attendance processed by a witness about the conversation that took place between him and other prosecution witnesses in connection with misappropriation made by the accused would be statement within the meaning of Section 157 of Evidence Act.

Witnesses to be confirmed need not to say in Court that he made the previous statement

There is nothing in the Section 157 which demands that before the confirming witnesses depose to the previous statement, the witness to be confirmed must also say in his testimony in Court that he had made that previous statement to the witness who is confirming him. Of course if the witness to be confirmed also says in his testimony that he had made the previous statement to someone, that would add to the weight of the evidence of the person who gives the evidence in confirmation, just as if the witness to be confirmed says in his evidence that he had made no previous statement to any body that makes the statement of any witness coming into Court as a conforming witness as to the previous statement of little value. Merely in order to make the previous statement admissible under Section 157 of Indian Evidence Act it is not essential that the witness to be confirmed must also, besides making the previous statement at or related to the time the fact took place says in his testimony that he had made the previous statement. 

Time for giving confirming evidence

Ordinarily before confirming evidence is admissible the evidence sought to be confirmed must have been given. It is questionable whether Section 136 gives the Court any discretion to allow evidence to confirm a witness to be given under Section 157, before the witness, himself is examined. The Court has, no question, a discretion to allow evidence to be given under Section 157 out of the regular order, merely these discretion should not be often used and only for very special reasons.

Section 158 of Indian Evidence Act

What matters may be proved in connection with proved statement relevant under Section 32 and 33.

Whenever any statement, relevant under Section 32 and 33 is proved all matters may be proved, either in order to contradict or to confirm it, or in order to challenge the honesty or truth or confirm the credit of the person by whom it was made, which might have been proved if that person have been called as a witness and had not admitted upon cross-examination the truth of the matter suggested.

Scope

The statement admissible under Section 32 and 33 are exceptional cases and the evidence is only acknowledged from the impossibility, improbable ness or great inconvenience of producing the authors of the statement. It is just therefore, that all the same safeguards for truth should be provided as if the authors of the statements themselves before the Court and subjected to oath and cross-examination. So with consider to the impeachment of witnesses, the general rule applies where the witness whose testimony is attacked is dead or absent. This Section places a person whose statement has been used as proof under Section 32 in the same category as a witness actually produced in Court for the purpose of contradicting his statement by a former statement made by him.

Section 159 of Indian Evidence Act

Refreshing memory 

A witness may, while under examination, refresh his memory to any writing made by himself at the time of the transaction regarding which he is questioned, or so soon afterwards that the Court regards it likely that the transaction was at the time strong in his memory.

The witness may also mention any such writing made by any other person, and read by the witness within the time aforementioned, if when he read it knew it to be correct.

When witness may use copy of document to review his memory

Whenever a witness may review his memory by reference to any document, he may, with the permission of the Court to mention a copy of such documents. Provided the Court be satisfied that there is enough ground for the non-production of the original.An expert may review his memory by reference to professional treatises.

Refreshing memory by witness 

A witness allowed to review his memory, about anything upon which he is questioned, may review by means of writing. It is not essential that the document, used for refreshing memory should be relevant. It should be kept in mind that for refreshing memory the document or writing may not be admissible but facts tested to be proved must be admissible under this Section.

Writing includes printing, lithography and photography, etc

The word ‘writing’ has been defined in the General Clauses Act as ‘Aspect referring to ‘writing’ shall be made as including references to printing, lithography, photography and other modes of representing or multiplying words in a visible form’ from this, it is clear that if the status of Section 159 are satisfied a witness can refresh his memory by writing, photography, lithography, printing or other modes of representing or multiplying words in a visible from.

A newspaper 

As seen above a witness can review his memory by a printed matter. A witness attended a meeting, learned the speech of one Ram Chandra. The next day, the witness read the report of the speech in the newspaper. He found it be right. It was held that the witness could review his memory, at the time of his examination, by profounding into the newspaper. 

Tape-recorded statement

As seen above writing includes photography, printing, lithography and other modes of representing or multiplying words in visible from (Section 3(65), General Clauses Act). The word ‘in visible from’ not include the possibility of tape-recording being a “writing”. The tape-recording, not being a writing cannot be used for reviewing memory by witness.

Documents not produced at the proper time

In the case of Jivan Lal Dage v. Nitmani, the brothers of the plaintiff were not produced at the proper time. The Court declined the plaintiff to produce his account books but permitted him to review his memory by looking in the entries of them. It was held by the privy council that the evidence was acceptable under Section 159. A document which is not in the list of documents as needed by Order VII, Rule 13 of the CPC may be used for reviewing memory. Papers filed late may be used to review the memory.

Refreshing memory by any witness

The Section does not look at thoughtfully any particular or special sort of document fulfilling the situations of Section 159 may be used for the purpose. Memorandum kept by the witness of some transactions through the accounts were not on a regular basis kept, were permitted to be used for refreshing memory.

At the time of transaction or soon after it 

Before a witness is permitted to review his memory from any writing made by him, the demands of Section 159, Evidence Act should be followed with. It must be shown that the writing was made by the testifier at the time of the transaction or so soon after that the Court regards it likely that the transaction was at the time good in his memory. A doctor, when he comes into the witness-box was given a slide of paper by a pleader. After looking at the slide the doctor deposed that he examined the complainant and found injuries on his person. He did not depose as to what the slide of paper was when it was made. It was held that the proof was not admissible.

A witness can review memory about the facts stated by him if the writing was made either at the time of the transaction or presently after the transaction.

Writing made by some other person

A writing made by another person may be used for reviewing his memory by a witness if he read it soon after the preparation of writing and when he read it he knew it to be correct. From this, it cannot be deduced that the witness can review his memory by any writing made by a third person. In order that the writing of a third person may be used for reviewing his memory, the witness must have the first hand knowledge of the facts decreased in writing. The transaction occurs before the witness but alternatively of the writing being made by himself it is made by some other person and the witness reads it within the time when the transaction is fresh in his memory and while reading it he knew it to be correct. Is this were not so, an indirect evidence will creep in adopting the method laid down in Section 159.

It is essential that the document should be prepared in the presence of the witness. The document should be prepared by another person and in the absence of the witness. It is necessary that the witness should have read it soon after the transaction and knew it to be correct. In the case of Ram Chandra v. Emperor, the witness stated that he perceived the appellant’s speech and that the next morning he read a report on account of that speech in the Bande Mataram Newspaper of that date. The witness tried to review his memory by looking at the newspaper of that date. It was held that the witness was eligible to review his memory by looking at the newspaper.

Obligation of witness to refresh his memory

If there are any questions which upon any witness suffers from a bonafide oversight of memory, and that failure of memory can be repaired by reference to any memorandum or other writing made by the witness at the time and the Courts invites the witness to refresh his memory with reference to the writing, under obligation witness to do so.

A medical man 

A medical man may refresh his memory while giving evidence by referring to the report which he made but the report itself cannot be processed as evidence and no fact can be taken thereform. 

The document may not be relevant, the fact must be admissible

The writing which is used to review the memory of a witness should itself be admissible in evidence the Section does not require that. While a Panchnama was written by a police officer during an investigation, it was directly read to the Panches and admitted by them to be correct, it was held that Panches witness could review his memory by reading it. A statement recorded in writing by a police officer in the course of an investigation cannot be used in proof yet the police officer might use to review his memory. But it should be delivered in mind that for refreshing memory, the document needs to be permissible but the facts tried to be proved must be allowable in evidence. A fact which are not deserving to be admitted in evidence cannot be brought on record by means of Section 159 of the Act.

A Magistrate, during the investigation of a case, followed the accused who showed him in different places. The Magistrate made only memorandum. It was held that the Magistrate may review his memory by looking into the memorandum through the memorandum was not permissible in evidence.

Documents does not become evidence but its details may be given by refreshing memory

A document does not become an essential evidence under Section 159 of Indian Evidence Act. The witness has to review his memory by reading the memorandum and then he should force out the facts mentioned therein. The documents is not an offer in evidence. But a witness by refreshing his memory may give the details.

Contents of the record of the statement of the accused under Section 27 of Evidence Act 

Basically, a police officer should reproduce the contents of the statement made by the accused under Section 27 of Indian Evidence Act in Court by review his memory under Section 159 of Evidence Act from the memo earlier made thereof by him at the time the statement had been made to him or in his current existence and which was recorded at the same time or soon after the making of it. That would be an absolutely unexceptionable way of proving such a statement. Where the police officer blind that he does not remember the accurate words used by the accused from lapse of time or a like cause or even where he does not positively say so but it is pretty established from the surrounding portion that it could hardly be awaited in the natural course of human conduct that he could or would have accurate or dependable recollection of the same, it would be open under Section 160 of Indian Evidence Act, to the witness to trust on the document itself and swear that the contents thereof are correct.

Witness of a search list 

Search list or a Panchnama is not evidence. A witness in whose current position search was made by review his memory by the Panchnama. Only his statement is evidence. 

Recovery list on the statement of accused under Section 27 of Evidence Act

Such a list or Panchnama or memoranda can only be used by people who signed them or who made them to review their memory within the meaning of Section 159 of Indian Evidence Act. Wherever statement is ascribed to an accused person in police custody giving information leading to discovery must be proved by the witness like any other facts. The evidence about the preparation of Panchnamas of a list of discovery of a memorandum should not be permitted to depend on the cleverness of the police officer who may or may not like to write the statement in the accurate words of the accused.

No need to establish lack of recollection

For review his memory under Section 159 of Indian Evidence Act the witness need not establish a case of lack of recollection.

Section 160 of Indian Evidence Act

Testimony to facts stated in document mentioned in Section 159 of Evidence Act

A witness may also testify to facts present in such document as is present in Section 159 of Evidence Act, while he has no specific recollection of the facts themselves, if he is confirmed that the facts were correctly recorded in the document.

Principle and scope 

It has been seen that the Section 159 of Evidence Act deals with cases where the writing revives mentioned in the mind of the witness a recollection of the facts about the transaction, i.e as soon as he looks at the writing he remembers the facts. But it may be that even a studying of document does not refresh his memory, i.e it does not change his mind a recollection of facts. It is not essential that the witness looking at the written instruments should have an independent or specific recollection of the matters stated therein under Section 160 of Indian Evidence Act. Even then he may testify to the facts mentioned in it, if he recognises the writing or signature and feels sure that the contents of the documents were correctly recorded.

Difference between Section 159 and 160 of Evidence Act

The witness review his memory by looking at the document and gives his evidence in the normal way under Section 159 of Evidence Act. The document is not evidence in itself nor is it tendered. But memory is not review and while he has no specific recollections he guarantees that the paper contains a true record of facts under Section 160 of Evidence Act. Hence the evidence itself is tendered and it is evidence.

Section 161 of Indian Evidence Act

Right of opposite party as to writing used to refresh memory

Any writing mentioned under the provision of Section 159 and Section 160 of the Act must be produced and shown to the opposite party if he requires it, such party may if he delight cross-examine the witness thereupon.

Principle and scope 

This Section awards to the opposite party a right to the production and inception of, and cross-examination upon all that is made use of, for the purpose of review the memory of the witness.

Section 162 of Indian Evidence Act

Production of documents

A witness summoned to produce a document shall, if it is in his power or possession, bring it to Court, however any objection which there may be to its production or to its permissibility. Court will decide the validity of any such objection.

The Court, if it sees fit, may look over carefully the documents unless it transfer to the state or take other evidence to enable it to find out on its permissibility.

Translation of documents

If for such a purpose it is essential to cause any document to be translated, the Court may, if it thinks fit, direct the translator to keep the contents hidden, unless the documents are to be given in evidence and if the translator not follow such direction he shall be held to have committed an offence under Section 166 of the Indian Penal Code.

Scope 

The Section deals with the production of documents in answer to summons and it seems that the Section makes it irremissible on the witness to produce the document summoned by the Court and he has no right to decide whether the document shall be produced.

Validity of objection to be decided by Court 

The Court will decide the validity of any objection made by the person producing the document. This Section makes it necessary upon a witness to produce a document, if it is in his power or possession to bring it into Court however any objection which there may be to its admissibility or to its production. The Court will decide the objection.

The Section gives power to the Court to look over carefully the document or to take other evidence to enable it to find out on the issue of permissibility. But Section 162 prevent the Court for inspecting any document which transfer to the matter of state. In cases of such documents the Court must decide the point of privilege on some other material. Such documents can be inspected in proper cases.

Section 163 of Indian Evidence Act 

Giving as evidence of document called for and produced on notice

When a party calls for a documents which he has given the other party notice to produce and such document is produced and reviewed by party calling for its production, he is chained to give it as evidence if the party producing it requires him to do so.

Scope 

Section 163 of Evidence Act gives provision for the production of documents by one party to the case or proceedings on example of others.

It establishes that if a party to the proceeding summons a document from the other party and inspects it he cannot decline to produce it in the case if the party producing the paper so desires. This Section is applicable for the civil and criminal trials.

Value of such evidence 

There is no authority for the proposition that the proof which is acknowledged under Section 163 of Evidence Act must be viewed to be decisive against the party who has inspected the document. The language of the Section does not advise this. All that comes out is that the documents which the other party produced become proof in the case for what they are worth. 

Section 164 of Indian Evidence Act

Document production of which was refused on notice using as evidence

When a party refuses to produce a document which he has notice to produce after that he cannot use the document as evidence without the permission of the other party or the order of the Court.

Principle 

Where an opponent in possession of a document refuses to produce it on demand afterwards he is prohibited to produce the document to contradict the other party’s secondary proof. This is a proper punishment for unfair tactics.

Scope of the Section 

If the opponent having a document in his possession and refuses to produce it when called upon at the hearing to do so afterwards he is not at liberty to give the document in evidence for any purpose.

Section 165 of Indian Evidence Act

Power of judge to put questions production or order

The judge may in order to find out or obtain proper evidence of relevant facts and ask any question in any form at any time of any witness or of the parties related to any fact relevant or irrelevant and may order the production of any thing or document and neither the party nor their agent eligible to make any objection to such question or order without the leave of the Court to cross-examine any witness upon any answer given in reply to any such question.

The judgement must be based upon facts declared by this Act to be relevant and duly proved under this Section and shall not authorize any judge to compel any witness to answer any question or to produce any document which such witness would be eligible to refuse to answer or produce under Section 121 to 131, if the questions were asked or the documents were called for by the opposite party nor shall the judge ask any question which it would be not in proper way for any other person to ask under Section 148 and 149 nor shall he dispense with primary evidence of any document except in the cases hereinbefore excepted. 

Power of judge to put questions

A judge has a right under Section 165 of Indian Evidence Act to put questions to witnesses expressly recognised. He is awaited and indeed it is his duty to search all avenues open to him in order to find out the truth. If the judge finds that the examination of witness is not being treated in such a way as to unfold the truth it is not only his right but his duty to intervene his own questions.

Power of Court to ask questions

Judge’s part in hearing of a case is to hearken to the proof only himself asking questions to witnesses when it is essential to clearing any point that has been overlooked or left absence to see to that the advocates behave themselves properly and keep to the rules laid down by law. It is the duty of a judge to find out the truth and for that purpose he may ask any question and in any form at any time of any witnesses or of the parties about any fact relevant or irrelevant. But this he must do without unduly trespassing upon the function of the counsel of the parties without any tips of partisanship and without coming into frighten and rowdy witnesses.

The time 

However the law permit the judge to put any question to any time normally considered proper for an extended examination is when lawyers for the parties have finished their question or at least when the lawyers examining the witness at the time is passing on to a new subject. The judge may always intervene in the course of examination by an advocate to put a question in a clear form or to have a becloud answer prevent or to clarify a witness being not fairly misled but if does more and stops advocate again and again to put a long series of his own questions, he makes an efficient examination or cross-examination impossible and disadvantage the trial from its material course.

Cross examination on answers given to the Court

The parties have no right to cross-examine any witness or answers given to the question of the Court except with the permission of the Court under Section 165 of Evidence Act. The prudence will have to be exercised judicially and commonly the judge would give the essential permission if the answer given are opposite to the party who seeks the said permission.

Section 166 of Indian Evidence Act

Power of assessors or jury to put questions during examination of witness

Cases tried by assessors or jury then jury and assessors may put any questions to the witnesses however or by leave of the judge which the judge himself might asked and which considers proper.

Conclusion

Examination of witnesses is very important for any case whether it belongs to the civil or criminal nature and both the procedural law explain the examination of witnesses. Section 135 to 166 of Indian Evidence Act explain the examination of witnesses in which act cover all the things, like who can first examine the witnesses during the examination of witnesses and what are the relevant facts that are accepted during the examination of witnesses and what are the questions asked by an advocate during the cross-examination of witnesses and what questions are not asked during the cross-examination and also tells the power of judges during the examination of witnesses and at last give the provision related to the power of the jury and assessors to asked the question during the examination of witnesses. 

References

The Law of Evidence ( Batuk Lal). 

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What is the evidence? 

Once a civil or a criminal case is filed, the facts that are alleged by the parties need to be proved in Court. This is done by providing necessary ‘evidence’ (this word has its origin in the Latin ‘evidere’- ‘to ascertain clearly’). This evidence is presented before the Court at the stage of trial. 

Evidence can include anything,- all records or statements presented to the Court to establish relevant facts – e.g., statements of eye-witnesses, contracts, letters, oral statements, opinion of an expert, bank statements, etc. 

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Note that India primarily follows an adversarial system where evidence of facts must be provided by the parties to the civil / criminal dispute and the role of the judge is limited to adjudicating on the basis of the evidence provided by the parties. Unlike the inquisitorial system, the judge does not have an active duty to seek out evidence on specific matters. 

Brief overview of the Indian Evidence Act, 1872- 

• The Evidence Act (hereinafter, “IEA”) is a compressed codification of certain procedural laws, introduced with the object of enabling courts to correctly ascertain those facts which determine rights and liabilities defined by substantive law. 

• IEA is mainly divided into three parts- 

1. Relevancy of facts; 
2. Facts that need not be proved, and types of evidence; 
3. Production and effect of evidence 

• Tribunals, regulatory bodies, arbitration proceedings, consumer forums, and non- judicial proceedings (like, departmental inquiries, disciplinary proceedings, action under the laws governing any defence-service, etc.) do not follow the rules laid down in IEA. They observe compliance with the rules of natural justice, and may reflect some understanding of the general and basic principles of evidence. 
• IEA applies to both civil and criminal proceedings. 
• IEA works on the following four fundamental principles- 

Best evidence rule 

Deals with the assumption that the quality of the process of arriving at a decision depends upon the nature and character of evidence that is placed before the Court (whereas ‘BRE’ deals with rules which would regulate the process of presenting evidence in a court proceeding). 

Relevance

Indicates that judges are required to consider only relevant evidence to decide whether a disputed fact can be recorded as proved or not. (S. 5, IEA) Evidence must be confined only to the matter/s in issue. 

Admissibility 

When either party proposes to present evidence before the Court, of any fact, the Judge may enquire from such party about the manner in which the alleged fact, if proved, would be relevant. The Judge can then, admit such evidence only if he thinks that such fact would be relevant, and not otherwise (S. 136, IEA). 

Appreciation

The process which facilitates a Judge to arrive at a conclusion is called appreciation of evidence. This is a matter left to the Judge’s wisdom and experience, as it’s very difficult to encapsulate appreciation of evidence in statutory form.  

IEA classifies evidence into the following three major types- 

1. Oral and documentary evidence 
2. Circumstantial and hearsay evidence 
3. Primary and secondary evidence 

Who has the responsibility of collecting and presenting evidence before the Court?

In civil cases, it is the responsibility of the parties to the dispute to present evidence before the Court to establish the facts supporting their claims. 

In criminal cases, however, especially in respect of cognizable offences (i.e. where the complainant is entitled to file an FIR), the police is responsible for conducting an investigation (and consequently collecting evidence) after the FIR is filed, which is  presented before the Court during trial of the matter. 

Categories of evidence and proof 

What is the necessity of providing evidence?: 

Evidence must be adduced so that the Court is able to determine the disputed points in the case (called ‘facts–in-issue’ under the Evidence Act). In addition to evidence pertaining to the facts-in-issue, other evidence may be required by a Court to decide a case. 

Usually, the facts over which parties are at dispute cannot be decided in isolation without knowledge of connecting facts or surrounding circumstances. Such facts are known as ‘relevant facts’. 

Which facts are relevant?

Ss.5 – 55, IEA explain the facts which are relevant, and pertaining to which, evidence is admissible. By way of example, evidence of all facts which are per se not in issue but connected to the facts-in-issue and part of the same transaction, is admissible. This includes the motive behind perpetration of a criminal act/omission, preparation therefore, and previous or subsequent conduct; the cause or effects of the facts-in-issue, and the facts that are necessary to explain the relevant facts. (Such facts are known as res gestae in legal jargon.Ss. 6-9, IEA) 

1. 11, IEA contemplates that- 

– If certain facts are inconsistent with any relevant fact, or 

– If such facts make the existence or the non-existence of the relevant fact highly probable or improbable, then such fact/s is considered relevant even if it was irrelevant otherwise. 

What are the two most important types of evidence under the IEA? 

1. Oral evidence 
2. Documentary evidence 

Statements made by witnesses is known as ‘oral evidence’, and any document (including electronic records), stone inscriptions and engravings is known as ‘documentary evidence’. 

Oral Evidence (Ss. 59-60, IEA): 

IEA covers two broad rules regarding oral evidence- 

1. All facts except contents of documents maybe proved by oral evidence 
2. Oral evidence in all cases must be direct, and not hearsay 

Generally, the evidence of a witness is given orally, and falls under ‘oral evidence’. A witness, if unable to speak, may communicate to the Court by signs or by writing. This would also be covered under ‘oral evidence’. Oral evidence is a much less satisfactory medium of proof than documentary evidence. But justice can never be administered in many cases without resorting to it. The correct rule is to judge oral evidence with reference to conduct of parties, and the presumptions and probabilities legitimately arising in the case. The real test for accepting or rejecting such evidence is, how consistent is the story of the witness; how well does it stand the test of cross- examination; and how far does it fit in with the rest of the evidence and the circumstances of the case. Indian Evidence Act embodies the general English rule, that hearsay is no evidence (exceptions to this are dealt with in Ss. 17-39, IEA) Oral evidence should be direct, and must refer to a fact that has been seen, heard or perceived by other senses by a witness. For a person’s evidence to be admissible (as oral evidence) in Court, he must be a competent witness (S. 118, IEA). 

Documentary evidence (Ss. 61 to 65, IEA): 

Includes primary and secondary evidence, wherein the primary evidence is the document itself, and secondary evidence deals with certified copies of the original document. 

Which party has the responsibility (or ‘burden’) of proving his case?

As a general principle, the party claiming relief needs to provide evidence of the facts it has alleged (S. 102 read with S. 101). This general rule,in other words, indicates that the ‘burden of proof’ in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 

(S. 3, IEA) When does a Court consider a fact to be: 

• Proved- 

A fact is considered as proven when the Court believes its existence to be so probable that a prudent man oughtto act upon the supposition that it exists. 

• Disproved- 

A fact is said to be disproved when the Court considers its non-existence so probable, that a prudent man ought to act upon the supposition that it exists. 

• Not proved- 

A fact is said not to be proved when it is neither proved nor disproved. 

‘Fact-in-issue’- 

Any fact from which, either by itself, or in connection with other facts, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in any suit or proceeding, necessarily follows. 

• ‘Conclusive proof’- 

When a fact is declared by this Act to be a conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it. 

It may not be possible to establish a fact with absolute mathematical certainty. However, IEA prescribes a certain degree to which a fact must be established; barring special circumstances (i.e., Ss. 56-58, IEA) 

Which facts need not be proved? 

Facts presumed by law (Ss. 86-88, IEA) [Presumptions – Regarding public documents (Ss. 79-90A), Regarding burden of proof (Ss. 111A, 113A, 113B, 114A)] _ Facts admitted (S. 58, IEA) [Admissions (Ss. 17-23, 31, 70, 167) and Confessions (Ss. 24-30, IEA)] Facts judicially noticeable ( Ss. 56, 57, IEA) 

Presumption

Presumption of law and fact- 

A presumption is an acceptance of a fact as true or existent based upon its strong probability evident from the circumstances. According to English Law, a presumption can be of two kinds – presumption of fact, and presumption of law 

Presumption of Fact- 

Presumption of fact are those presumption about things or events that happen in day to day life, which we accept as true, due to inference drawn logically and naturally by our mind. For example, presumption that a man with blood stained clothes and a knife in his hands has stabbed someone. Or, if X is found in possession of Y’s credit card, X has committed theft. Such presumptions are rebuttable from further evidence. 

Presumption of Law- 

Apart from presumptions of fact, there are situations under which presumptions may or must be made, as per legal rules. Under those situations, courts will make the presumption based on the legal rule. For example, it is a presumption of law that a child below seven years of age is not capable of committing a crime. Or that a person who has not been heard from for seven years is dead. Such presumptions may or may not be rebuttable depending on the law. For example, the presumption that a child below seven years of age is not capable of committing a crime cannot be rebutted.

Law presumes the age of the child as a conclusive proof of his innocence. But the presumption that a person is dead when he is not heard from for 7 years is rebuttable by presenting further evidence that indicates that he was alive. 

The burden of proving a particular fact is always on the party which is alleging the fact. However, there are situations when the Court is entitled to ‘presume’ the existence of certain facts. Courts are entitled to presume facts pertaining to natural events, natural course of human conduct or in the course of business. 

In such cases, proof is not required. IEA deals with presumptions about facts and presumptions of law. Let’s examine some presumptions for reference purposes below: 

• If a person has been accused of having committed any offence in a disturbed area wherein it can be shown that the person had been in a place in such area at a time when firearms and explosives were used from that place to attack or resist the forces that were working to maintain peace and order, such a person would have been presumed to have committed an offence under Section 121, 121A, 122 or 123 of IPC, and criminal conspiracy or abetment of an offence under Section 121 or 123 of IPC. 
• Section 113A indicates towards presumption of an offence with regard to the abetment of suicide of a married woman. 
• Presumption pertaining to the legitimacy of children born out of wedlock is a presumption of law. 
• Law states that a person is always innocent unless proven guilty – However, in the cases of rape, if the woman states that she did not consent to the sexual intercourse, the Court presumes an absence of consent on the part of the woman. 

Therefore, if it is proven that a person had sexual intercourse with a woman, he is considered to have done it without consent of the woman (and hence guilty of rape), unless he proves otherwise. 

Presumptions that can be made with respect to documents are discussed in Ss. 79 to 85 of the Evidence Act. 

Chapter VI, IEA deals with the exclusion of oral evidence by documentary evidence – that is, where documentary evidence is available of a particular fact, it will be preferred to oral evidence. Oral evidence will not be considered at all with respect to that fact. When the presumption is conclusive, no further evidence is required to be provided, but when it is rebuttable, the adverse party can present evidence to negate the presumption. 

To conclude, in criminal laws, it is a generally accepted theory that a person is always innocent unless proven guilty. Burden of proof is a concept that has been explained in various fields of law, be it in torts or in criminal laws. However, the basic fact that lies in the foundation of this concept, is that a person who claims the happening of an event or claims a fact, has the burden to prove it. Also, when any fact is within the knowledge of any person, that person solely has the burden of proof upon him to prove it (S. 106, IEA).

In torts, there is a concept of Res Ipsa Loquitor; whereas, in criminal law, there is a concept of prima facie. In the former, the plaintiff needs to prove three things which are, that the defendant owed a duty of care to the plaintiff that he breached, due to which the plaintiff suffered damage. After proving these, the burden of proof shifts to the defendant. However, in the latter, there is a presumption that there is enough evidence to prove the event or the fact. S. 103, IEA deals with the provisions relating to alibi. 

Domestic Violence Act has a similar provision, as that of S. 113A and S. 113B, IEA whereunder the death of a woman under unnatural circumstances, within seven years of her marriage, is presumed to be a dowry death, abetted by the deceased’s husband or relatives thereof. 

Admissions

1. 17, IEA defines an admission as a statement that suggests any inference as to any fact in issue or relevant fact and which is made by: 

– A party to a proceeding or his agent 

– Suitor in representative character 

– Party interested in subject-matter 

– Person from whom interest derived 

The tricky part in admissions relates to the provisions describing confessions (Ss. 24-30, IEA). It basically deals with the provisions that state as to whom can confessions be made to; what sort of confessions may be admitted; and what happens to the confessions that are made under threat, inducement or promise. Confessions made under such influences could be held as self-incriminatory, which is not allowed under the Constitution [Article 20 (3)]. 

A dying declaration is usually held as relevant. Just like motive, intention, ill will, state of mind and body or bodily feelings are important (according to Ss. 8 and 14, IEA); a previous good or a bad character (Ss. 52 to 55, IEA) could be relevant. However, its submission is restricted majorly to criminal cases, and has no bearing on civil cases as such.