This article has been written by Kalhan Safaya.

The crusade inflicted to the new generation masses

The Freedom of Religion Acts and “anti-conversion” rule, mainly practiced in India, is a state-level legislation introduced to govern spiritual converts and ultimately put an end to them. The laws currently exist to eight of our twenty-eight states: Arunachal Pradesh, Odisha, Madhya Pradesh, Chhattisgarh, Maharashtra, Jharkhand, Uttarakhand, and Himachal Pradesh. There are undoubtedly many differences between the laws of the states, but in their substance and form they are very similar.  All these anti-conversion laws are aimed at preventing any person from converting or trying to convert another person, either directly or otherwise, by means of “forcible” or “fraudulent” means, or by means of “allurement” or “inducement.” However, the anti-conversion laws in Rajasthan and Arunachal Pradesh have certain inherent differences. They seem to exclude, from their prohibitions, the conversion to “native” or “original” faiths, which can be described as very small. There are several harsh penalties for violating the rules, varying from monetary fines to even imprisonment; the sentences levied can vary from one to three years in prison and from 5,000 to 50,000 INR (which corresponds to about US$74 to $735) fines. Some of the laws that fall within the same scope provide for more stringent penalties when certain sections such as: women, children, or members of scheduled castes or schedule tribes (SC / ST) are converted into faiths different from their own.

Despite countless condemnations of India’s anti-conversion legislations, many human rights organizations have stated that these regulations culminated into just a few prosecutions and no convictions at all. It is noted[1] that such laws create a hostile and sometimes violent environment for religious minority communities as they do not require any evidence to support convictions of wrongdoing.

India is a nation where religious beliefs and practices are diverse.  The Indian subcontinent, as a whole, is home to four major world religions— Hinduism, Buddhism, Sikhism, and Jainism[2]. According to census data reported in 2011, 79.80% of India’s population is Hindu, 14.23% Muslim, 2.30% Christian, 1.72% Sikh, 0.70% Buddhist, and 0.37% Jain.[3]

History of anti-conversion laws

Originally, during the British Colonial era, Hindu princely states adopted laws restricting spiritual conversions— mainly “in the latter half of the 1930s and 1940s.” Such states enacted laws “in an attempt to preserve Hindu religious identity in the face of British missionaries.”[4] There were over a dozen princely states in India, including Kota, Bikaner, Jodhpur, Raigarh, Patna, Surguja and Kalahandi.  Some of that period’s laws include the 1936 Raigarh State Conversion Act; the 1942 Surguja State Apostasy Act; and the 1946 Udaipur State Anti-Conversion Act.

Following the independence of India, a number of anti-conversion bills were introduced by the Parliament, but none were enacted.  First, the Indian Conversion (Regulation and Registration) Bill was introduced in 1954, which sought to enforce “missionary licensing and registration of conversion with government officials.” This bill somehow failed to gather majority support in Parliament’s lower house and was rejected by its sitting members.  This was followed by the enactment of the Religious Protection Act in 1960, “which aimed at checking the conversion of Hindus to the so-called ‘non-Indian faiths’ that included faiths like Islam, Christianity, Judaism and Zoroastrianism[5] as described in the aforementioned Bill.

Ministers of the current government have expressed their support for the adoption at the national level of an anti-conversion law, which, according to several humanitarian institutions, is an attack on the secular values of the Indian Constitution. In 2015, “high-ranking members of the ruling party, called for a national anti-conversion rule.” Two representatives of the ruling party proposed the implementation of anti-conversion bills in both legislative houses “to criminalize religious conversion without the government’s permission[6].” Nonetheless, the proposal of the incumbent government to enact national legislation reportedly “hit a roadblock” with the Ministry of Law and Justice, which cautioned against the change, arguing that it is “not tenable” as it is “strictly a state subject” — i.e., a topic which lies purely within the constitutional jurisdiction of states under the State List in Schedule Seven of the Constitution.

Freedom of religion laws were enacted at the state level to regulate religious conversions by force, fraud, or other inducements, as discussed below.

India’s Freedom of Religion Acts and “anti-conversion rules” are legislation at the state level that is enforced to govern non-purely voluntary spiritual conversions.  Those laws started to be enforced in the 1960s after the inability to pass a Union (or central) anti-conversion legislation and were first implemented by the states of Orissa and Madhya Pradesh. Such laws are presently in effect in eight of the twenty-nine states[7]: Arunachal Pradesh, Orissa, Madhya Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, and Uttarakhand. Several other states, including Manipur, were currently “considering different laws.” In the 1980s, the anti-conversion bill was primarily directed at Muslims trying to convert non-Muslims, although Christianity has gained more publicity since the 1990s because of its affiliation with Western-style colonization and the role played by vigorous proselytizing in being a good Christian.  One researcher says, The object of each draft bill is largely the same: to restrict the ability of communities and individuals to convert ‘from the faith of one’s forefathers,’ often in the name of protecting those who make up the ‘weaker’ or more easily ‘influenced’ sectors of society — including girls, boys, backward castes and untouchables. The anti-conversion laws in Rajasthan and Arunachal do not go any further. Penalties for breaching the laws can range from monetary fines to imprisonment; the laws impose punishments ranging from one to three years of imprisonment and fines of 5,000 to 50,000 Indian rupees (about US$70 to $704). Some of the laws provide for stiffer punishments if women, children, or members of scheduled castes or schedule tribes (SC/ST) are being converted.

SC’s  action

India’s Constitution grants the right under Section 25 to profess exercise or spread one’s religion. In Ratilal Panachand Gandhi v. State of Bombay’s case, the Supreme Court explained this clause by claiming that

“every person has a fundamental right under our Constitution not merely to entertain such religious belief as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such overt acts as are enjoined or sanctioned by his religion and further to propagate his religious views for edification of others.”

In the Rev Stainislaus v. State of Madhya Pradesh’s case Supreme Court questioned whether the right to practice and spread one’s faith also included the ability to convert.  The Court upheld the authenticity of the first laws against conversion: the 1968 Madhya Pradesh Dharma Swatantraya Adhiniyam, and the 1967 Orissa Freedom of Religion Act. The Court found, as summarized by Professor Laura Jenkins, that “restrictions on efforts to convert are constitutional because such efforts impinge on ‘ freedom of conscience ‘ and ‘ public order. ‘” In one of its findings, the Court held that propagation only indicated persuasion / exposure without coercion and that the right to propagate did not include the right to convert any person.  This holding was summed up by the Court as follows:

 “It has to be remembered that Article 25(1) guarantees “freedom of conscience” to every citizen, and not merely to the followers of one particular religion, and that, in turn, postulates that there is no fundamental right to convert another person to one’s own religion because if a person purposely undertakes the conversion of another person to his religion, as distinguished from his effort to transmit or spread the tenets of his religion, that would impinge on the “freedom of conscience” guaranteed to all the citizens of the country alike.”

It must be understood that the freedom of religion enshrined in Article 25 is not granted exclusively in respect of one faith, but includes all religions equally, and an individual may properly enjoy it if he practices his right in a manner commensurate with the like freedom of persons practicing the other religions.  What is liberty for one, in equal measure, is freedom for the other, and therefore there can be no such thing as a fundamental right to turn another man into one’s own religion.

Because Article 25(1) stipulates that the right is essential to ‘ public order, ‘ the Court has held that the acts ‘ clearly provide for the preservation of public order as, if forcible conversion had not been forbidden, it would have generated public disorder in the States, ‘ and that’ the term ‘ public order ‘ is narrowly connoted. ‘

This ruling has been subject to some scholarly opposition for failing to recognize “propagation” as including right to convert and failing to “discuss the meanings of initiation and allurement, which was the main bone of contention” with these rules.  The Supreme Court also did not return to the legislative history of Article 25, according to Professor Mustafa and Professor Sohi — the words propagate was included as a concession in the Constitution to persuade Christians that it would include freedom to convert. Therefore, if one takes the reductionist interpretation of propagation — given the court in this case— such a word would be rendered meaningless in the Indian Constitution. Under Article 19(1)(a) of the Indian Constitution, the mere right to propagate for the enlightenment of others would already be covered by the right to free speech and expression. Therefore, they contend that the freedom to conversion was in reality included in Article 25 and, as such, the Supreme Court’s decision in Stainislaus was not only incorrect, but also contributed to social instability, as Indian Christians believe that they have been cheated in this matter. The assurances provided to them on the incorporation of the word propagate in the Constituent Assembly have not been fulfilled, and the government has done nothing to remedy the situation resulting from the Supreme Court’s highly restrictive definition of the expression propagation.

Execution

Over the years, human rights organizations and institutions have expressed concern about the rights implications of these state anti-conversion laws and the lack of equitable treatment under them.  According to the U.S. Commission on International Religious Freedom (USCIRF),”these laws, based on concerns about unethical conversion tactics, generally require government officials to assess only the legality of Hindu conversions, and provide fines and imprisonment for anyone who uses force, fraud, or’ induce’ to convert another.”

A USCIRF report stated that while India stresses ‘complete legal justice’ and prohibits discrimination based on faith, ‘ there are constitutional requirements, state and national laws that do not conform with international standards for religious freedom or conviction, including Article 18 of the United Nations Declaration of Human Rights and Article 18 of the Universal Covenant on Civil and Political Rights. The report also stated that “anti-conversion laws by designing and implementing them infringe the right of the individual to convert, favor Hinduism over minority religions, and pose a major challenge to Indian secularism.” Moreover, “these laws have resulted in unfair practices against minorities.”  

On the other side, the Hindu American Foundation, a U.S. advocacy group, reported that

Freedom of religion legislation are designed specifically to discourage vulnerable populations and weak groups, such as children or disadvantaged, uneducated or analphabetes, from being exposed to and falling victim to coercive attempts to force religious conversion in return for or receiving health or humanitarian aid, schooling or jobs.

The laws are viewed by proponents as a conversion restriction “to preserve peace and harmony in plural India.”

Reports of non-Hindus “reconversion” rituals to Hinduism by hardline Hindu nationalist organisations have been growing.  A USCIRF-published report observed that the “reconversion” to Hinduism under the word Ghar Wapsi (returning home) was not protected by any anti-conversion statute.  According to the report, “such exclusion from the purview of religious freedom acts inevitably suggests reconversion through the use of force, fraud or allurement is not punishable under the provisions of these acts.” In December 2014, “Hindu nationalist groups announced plans to ‘ convert ‘ thousands of Christian and Muslim families to Hinduism as part of a so-called Ghar Wapsi (returning home) Program.”

Despite criticism of India’s anti-conversion legislation, several human rights organizations, including the USCIRF, stated that “these regulations resulted in few prosecutions and no convictions.” Studies released in 2010 and 2011 by the US State Department on International Religious Freedom have reported no arrests and no convictions under different anti-conversion laws during the monitoring times.

Nonetheless, according to the USCIRF, some critics recognize that “these laws create a hostile, and sometimes abusive, atmosphere for religious minority groups because they do not include sufficient evidence to support criminality charges.”

More recent reports by USCIRF have highlighted certain incidents of arrests:

1. As a consequence of these rules, religious minority members and followers are threatened with harassment and detention in 2017. For instance, in June 2017, a Catholic nun was arrested along with four tribal women on suspicion of forced conversion.
2. Three Christians were detained in the district of Khandwa in April 2017 on the grounds of charges of converting people.
3. Christians protested in July 2017 in Ludhiana, Punjab, following the murder in public of Sultan Masih, the pastor of the Temple of God Church, on suspicion of his involvement in the conversion of others.

In addition, in its latest international report on religious freedom, the U.S. State Department also highlighted an incident:

Seven Christian pastors— Stanley Jacob, Vijay Kumar, Sumit Varghese, David from New Delhi, Amit from Mathura, Anita from Hathras, and Dinesh from Rajasthan — were arrested by the police on December 4 as they held a private home prayer meeting. A court sentenced them to 14 days in prison detention on the next day for carrying out a forcible program for conversion.

Other recent incidents of news arrests are described below:

• In early December 2017, police arrested seven Christian preachers in the Mathura district of Uttar Pradesh, North Indian state, “for allegedly carrying out a ‘ forced conversion campaign ‘ in a village.
• In mid-December 2017, Indian police arrested a Christian priest in the state of Madhya Pradesh and grilled seminary leaders after a hardline Hindu party affiliated to the central RIGHT WING POLITICAL PARTY government “accused them of trying to convert hindus to Christianity by circulating bibles and shouting carols.”
• Seventeen preachers, including seven women, have been arrested by the Jharkhand Police for allegedly attempting to convert local residents to Christianity and making objectionable comments against tribal worship places in Dumka. Within the Freedom of Religion Act, all seventeen were reserved.

The take of the Incumbent Government

One of the leaders of leading right wing organizations said in the national media that by 31 December 2021 the RSS would free India from Christians and Muslims. Forced‘re-conversions’ are one way it intends to do this. Last year, hundreds of Christians are pressured through coercion and stress to reconvert to Hinduism. Despite being the largest democracy in the world, with a constitution that guarantees freedom of religion and belief, in India such extremism thrives. The government is now led by the Rightist political party, the right political wing, and often turns a blind eye to attacks on minorities. A national anti-conversion law is being proposed by the Indian government. Such laws, which are already in force in five of India’s states (Madhya Pradesh, Chhattisgarh, Odisha, Gujarat and Himachal Pradesh) and are proposed in a sixth (Maharashtra), are applied disproportionately to minorities. They may be falsely accused of forcing Hindus to change their faith as an excuse for harassing and arresting Christians and Muslims. Hindu nationalists see Hinduism as India’s true religion, so when an Indian ‘ returns’ to Hinduism, it is not seen as a’ conversion’ from another faith, but as a ‘ghar wapsi’ or’ homecoming’: they are therefore exempt from the laws of anti-conversion.

Two leaders of India’s governing party faction, one in the lower and one in the national parliament’s upper house, are planning to introduce a Private Members’ Act, each in their own house, to enact a national law against Hindu conversion that would then compel a parliamentary debate.

The Upper House MP, former journalist Tarun Vijay, represents Dehra Dun in Uttarakhand (formerly Uttaranchal) state between Himachal Pradesh and Nepal on India’s northern border. Himachal Pradesh has already introduced a Freedom of Religion Act that appears harmless in name but seeks to regulate freedom of religion change.

In an interview with The Tribune, he said the latest Indian “religion” census had revealed that, “For the first time, it has been confirmed that the number of Hindus is less than 80%. We need to take action to stop the decline. Maintaining the Hindus in the country is very necessary.

He continued: “My argument is that religion should remain a matter of personal choice. But in India, it has become a political tool in the hands of foreign powers, targeting Hindus to once again fragment our nation on communal lines. This must be opposed in the name of all communities in India and in the national interest.”

Vijay is reported to have said that his proposed bill will advocate a “non-deductible warrant to be issued against the person found to be involved in the conversion act, along with a ten-year prison sentence.”

Yogi Adityanath announced in June 2015 that those who reject yoga and surya namaskar, a Hindu greeting to the sun god in yoga, “must leave India or drown in the sea.”

The first International Yoga Day was celebrated from New Delhi to New York on June 21, 2015. In the birthplace of yoga, Indian Prime Minister Narendra Modi conducted a yoga session in the center of the Indian capital attended by 37,000 participants.

The day was also a Sunday, which is why many Christian groups in India voiced their resistance – not to yoga itself, but to another major national event scheduled for a Christian holy day. “Statements like this [about fleeing India and dying in the ocean] render minority communities wary of the government’s actions,” said the National Christian Council of India at the time, continuing: “We advise the government to be responsive to the different cultural and religious traditions in our state.”The two Private Members’ Bills come shortly after a sixth Indian state has started the process of introducing an “anti-conversion law”.

Such protests have come when Hindu nationalism has been condemned by India’s Muslim population, after the lynching of a Muslim at Uttar Pradesh last week, who reportedly preserved and ate beef at home.

In the western Indian state of Maharashtra in March, a total ban on beef was enforced, outlawing the slaughter, consumption or even possession of beef.

Commentators indicated at the time that the prohibition would most seriously affect minorities. India is a secular nation where nearly half of the population eats beef, although most of the Hindus are abstaining, believing it is sacred. Many communities consume beef and it is not a totally prohibited social taboo.

“This ban is an insult to the poor and the Dalits,” said South India Church pastor Rev. Manohar Chandra Prasad (CSI).

Now, Ahsaan Chaudary, headman of the village, after the man’s lynching in Uttar Pradesh state, said: “The situation now is such that a Muslim villager cannot buy a cow and bring it home. We’re going to be attacked or even killed. It’s easy to accuse you of slaughtering the horse, “said the BBC.

Conclusion

After rigorous research and findings, we get to know that all over India, we are facing a threat to our very democracy which we claim to be the best and the largest all over the world. The conservative governments are solely after their vote banks and completely rely on as to how to mobilize the public in a way which is in their own vested interests. The anti-conversion laws are nothing but simply a stop on the practice of secularism and on the very serene concept of freedom of practising any religion, which is supposedly given to the citizens of India by the Constitution of India. The incumbent RIGHT WING POLITICAL PARTY government and the Hindu militant group that they fund, colloquially named as the RSS, are the ones who are diluting these set of freedoms which is guaranteed to us by the big book of Law and are infecting the whole of India with this plague. This plague is going to hit us really soon and the consequences are going to be incessantly brutal. There already are many a states which have gotten this bug into their system while some are still left safe, but from the rapid pace which the government seems to possess we clearly can cull out the possibility of this law being a national phenomenon. This law is nothing but a sense of alienation inflicted upon the innocent people who belong to faiths which constitute the minority. It is democracy’s foremost and paramount duty to keep everyone engaged and drive the country with no exclusionary steps and policies, whatsoever. Thus, the whole law is immoral in the bigger scheme of things and hence we must realize that this is a doom which is impending on us. We all are sleeping with a big monster beneath our beds and we must realize it’s existence and uproot it from its existence before it’s too late.

References

1. American Center for Law and Justice, “Religious Freedom Acts”: Anti-Conversion Laws in India 2 (June 26, 2009), http://media.aclj.org/pdf/freedom_of_religion_acts.pdf, archived athttps://perma.cc/QFM3-TU24. 
2. Testimony of Katrina Lantos Swett, Vice Chair USCIRF, Before the Lantos Human Rights Commission on the Plight of Religious Minorities in India 5 (Apr. 4, 2014), https://www.uscirf.gov/sites/default/files/India testimony TLHRC  April 2014 FINAL.pdf, archived at https://perma.cc/GF6E-YCBK.
3. Religion: 2001 Census Data, Office of the Registrar General & Census Commissioner, India, http://census india.gov.in/Census_And_You/religion.aspx(last visited Apr. 19, 2017), archived at https://perma.cc/ME8W-UBXD.
4. Jennifer R. Coleman, Authoring (In)Authenticity, Regulating Religious Tolerance: The Legal and Political Implications of Anti-Conversion Legislation for Indian Secularism 23 (Paper Presented to Penn Program on Democracy, Citizenship, and Constitutionalism Graduate Workshop, Sept. 13, 2007–08), https://www.sas.upenn.edu /dcc/sites/ www.sas.upenn.edu.dcc/files/uploads/Coleman.pdf, archived athttps://perma.cc/9WY3-DTFN.

Endnotes

[1] Library of Congress, State Anti-Conversion Laws in India (Last visited on: October, 29 2019) https://www.loc.gov/law/help/anti-conversion-laws/india.php

[2] Religion: 2001 Census Data, Office of the Registrar General & Census Commissioner, India, http://census india.gov.in/Census_And_You/religion.aspx (last visited Oct. 29, 2019), archived at https://perma.cc/ME8W-UBXD.

[3]  Hindu Population Reducing in India as ‘They Never Convert People’: Kiren Rijiju, Deccan Chronicle (Feb. 13, 2017; updated Feb. 14, 2017), http://www.deccanchronicle.com/nation/current-affairs/130217/hindu-population-reducing-in-india-as-they-never-convert-people-kiren-rijiju.html, archived at https://perma.cc/8BUG-KQ4N; see also C-1 Population by Religious Community, Office of the Registrar General & Census Commissioner, India, http://www.censusindia.gov.in/2011census/C-01.html (last visited Oct. 29, 2019), archived at https://perma.cc/Q7R7-DRRB.

[4] James Andrew Huff, Note, Religious Freedom in India and Analysis of the Constitutionality of Anti-Conversion Laws, 10(2) Rutgers J. L. & Religion 1, 4 (2009), http://www.lawandreligion.com/sites/lawandreligion.com/files/ A10S-6Huff.pdf, archived at https://perma.cc/7Z7Y-9U8Q.

[5] Indian Law Institute, A Study of Compatibility of Anti-Conversion Laws with Right to Freedom of Religion in India 31 (2007) (submitted to India’s National Commission for Minorities).

[6] BJP Lawmakers Plan Anti-conversion Bills in LS, RS, International Business Times (Nov. 9, 2015), http://www.ibtimes.co.in/bjp-members-introduce-bill-criminalising-religion-conversion-653925, archived at https://perma.cc/W4AD-QSVS; Indian Parliament Will Consider Criminalizing Religious Liberty, Organization for Minorities of India (Nov. 5, 2015), http://www.minoritiesofindia.org/indian-parliament-will-consider-criminalizing-religious-liberty/, archived at https://perma.cc/U7SM-567E.

[7]  Rajshree Chandra, Converting Religion, Converting Law: Rajshree Chandra, Kafila (Dec. 24, 2014), https://kafila.online/2014/12/24/converting-religion-converting-law-rajshree-chandra/, archived at https://perma.cc/T6D2-HFAJ. 

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This article is written by Mehar Verma, a 3rd-year law student, from Jindal Global Law School. In this article, the author has discussed the concept of criminal trespass and aggravated forms of criminal trespass.

Introduction

Every individual has a right to the full enjoyment of their property without any disturbance, this is the reason trespass was made an offence. Even though trespass is ordinarily a civil wrong for which the defendant can sue for damages, but when such trespass occurs with a criminal intention it amounts to criminal trespass. If your enjoyment of your property, whether movable or immovable is disturbed due to criminal activities of any kind, be it theft or assault, you can seek remedy under the Indian Penal Code (IPC). For instance, X unlawfully and without Y’s permission enters into Y’s house to steal his grandfather’s antique watch, X would be liable for theft as well as criminal trespass. Further, the offence of criminal trespass may be aggravated depending upon the facts of certain cases. Consider the same example, with an additional fact that X entered Y’s property at night or in order to enter the assaulted Y, then X would have a greater liability. As the subject of criminal liability is so vast, the Indian Penal Code (IPC) has discussed criminal trespass in 22 sections, commencing from Section 441, IPC till Section 462, IPC.

Meaning of Criminal Trespass

According to Section 441 of The Indian Penal Code, whoever enters into property in the possession of another with the intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into such property, but remains there with intent thereby to intimidate, insult or any such person, or with an intent to commit an offence, is said to commit ‘criminal trespass’. Thus it can be deduced that criminal trespass occurs when a person unlawfully without any right or an express or implied license enters into the private property of another person or remains into such property with a criminal intention. The object of making criminal trespass an offence is to ensure that people can enjoy their private property without any kind of interruption from outsiders. Punishment for criminal trespass, as prescribed in Section 447 of IPC is either imprisonment which may extend to three months, or fine which may extend to INR 500 or both.

Ingredients of Criminal Trespass

Criminal trespass has two limbs, firstly, entering into the property of another with criminal intent and secondly, entering lawfully but remaining in the property with a criminal intent to harm or cause annoyance. Thus the essential ingredients for committing Criminal trespass are:

‘Whoever enters’

To commit the offence of criminal trespass, there must be an actual entry into the property of another by the accused person. No trespass can occur if there is no physical instrument by the accused into the private property of the victim. In the State of Calcutta vs Abdul Sukar, the court held that constructive entry by a servant does not amount to entry, under this Section as even though there was no possession in law, there was possession in fact. For instance, X throws garbage outside Y’s house on a daily basis, in this case, X may be liable for nuisance but he has not committed criminal trespass as there is no entry by X into Y’s property.

Property

The term property under this Section includes both movable and immovable property. Wrongful entry into one’s car or other movable property would have similar liability as wrongful entry into one’s house. In Dhannonjoy v Provat Chandra Biswas, the accused drove away from the boat of the possessor after attacking him. The court held that this would amount to criminal trespass even though it was a movable property. But the term property does not include incorporeal property or something which cannot be touched, such as patent rights.

Possession of another

The possession of the property should be in the possession of the victim and not the trespasser. Having the ownership of the property is not necessary, mere possession is sufficient to claim criminal trespass against the trespasser. However, it is not necessary for the person having possession or the owner of the property to be present at the time when the trespassing occurred, no presence of owner or possessor would also amount to trespassing as long as the premises are entered into by the trespasser to annoy. For instance, writing love letters and delivering them to a girl’s house against her will would also amount to criminal trespass, even if at the time of delivering such letters, the girl was not at home.

Intention

If it is proved that the intention of the accused parties was not to insult, harm or annoy the owners or possessors of the property, then it would not amount to criminal trespass. The Intention is the essence of this crime, and if there is no dominant motive to commit the crime, no criminal trespass. The test for determining whether the entry was done with an intent to cause annoyance or any kind of harm is to determine the aim of a trespasser at the time of such entry. 

In Punjab National Bank Ltd v All India Punjab National Bank Employees’ Federation, the court held that as the employees who were on strike entered the bank with the intention to only put pressure on the management to concede their demands, and there was no intent to insult, harm or annoy any of the superior officers, their entrance into the bank cannot amount to criminal trespass. However, if in the given circumstances, the strikers would have stormed into the private cubicles or offices of the superior staff with the aim of causing annoyance to such members, then it would amount to criminal trespass.

Further, it is to be proved that the intention of the accused was not probable but an actual one, this principle was laid down in Ramjan Misrty v Emperor. It is not sufficient to show that the person entering into the property of another had the knowledge that his entrance would cause annoyance, it is to be proved that there was an intention to commit an offence, or intimidate, insult or annoy any such person for an offence of criminal trespass to take place.

Aggravated forms of criminal trespass

The offence of criminal trespass may be committed at different occasions having different magnitudes and penalties. Depending upon the time of the trespass, its purpose and nature of the property trespassed, the offence may be aggravated and specific punishments are prescribed for those specific cases. Further, a crime may be aggravated by the way it is committed and the end for which it is committed.

Trespassing into the property where a man resides and stores his belonging is an aggravated form of criminal trespassing as the greatest safeguard is required against the habitation of people. Trespassing against such property is known as house trespass and is governed by Section 442 of IPC.

House trespass may be further aggravated if it is done in a way to avoid attention, known as lurking house-trespass and is governed by Section 443 of IPC. House trespass is also aggravated when it is done violently, knowns as house-breaking and governed by Section 445 of IPC.

House trespass of any form may be aggravated based on the time when it is committed, an offence taking place at night is more serious than an offence that took place during the day time. Housebreaking by night is governed by Section 446 of IPC.

House-trespass

Section 442 of IPC, defines house-trespass as committing criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling, place of worship or as a place for the custody of the property. A place of human dwelling does not always have to be a permanent resident of the defendant, temporary residents like school or railway platforms also count as a human dwelling. However for a building to be a human dwelling it must have some walls or some kind of security and a mere fence cannot amount to a human dwelling. This offence is an aggravated form of criminal trespass, thus every house-trespass is criminal trespassing but not vice versa. As house-trespass is against the possession of a property, it cannot take place if the defendant is not in actual possession of the property.

As per Section 448 of IPC, the defendant guilty of house-trespass may be imprisoned for a term not exceeding 1 year, fined for INR 1,000 or less or both.

Lurking house-trespass

Section 443 of IPC, deals with a further aggravation of house-trespass, known as lurking house-trespass. The section defines this offence as committing house trespass and taking precautions to conceal the offence of house-trespassing from any person who has a right to exclude or eject the trespasser from the building which is the subject of the trespass. In Prem Bahadur Rai v State, the court held that unless active steps are taken by the accused to conceal his presence, no charge under Section 443 can be made. Thus the ingredients of lurking house-trespass would include:

1. Trespass;
2. House-trespass;
3. Concealing the house-trespass from someone who has the right to exclude to the trespasser. 

Therefore hiding in a porch behind a tree would fall within this section and the trespasser, under Section 453 of IPC, would be liable to imprisonment for a maximum of 2 years and fine as may be prescribed by the court.

Lurking house-trespass by night

Section 444 of IPC, talks about an aggravated form of lurking house-trespass, i.e trespass committed at night. Any lurking house-trespass committed after sunset and before sunrise fall within the ambit of this section. This offence is punishable with imprisonment not exceeding three years and fine, according to Section 456 of IPC.

House-breaking

Housebreaking is also an aggravated form of house-trespass and implies forceful entry into one’s house. Section 445 of IPC lays down 6 ways in which housebreaking can occur, namely:

1. Through passage made by the house breaker himself;
2. Through any passage not used by any person other than the intruder;
3. Through any passage opened for committing an offence of housebreaking which was not intended by the house occupier to be open;
4. By opening any lock;
5. By using criminal force at either entrance or departure; 
6. By entering or quitting any passage fastened against such entrance or exit. The word ‘fasteners’ implies something more than being closed, merely pushing of door shutters would not amount to house-breaking.

The first three ways are the one in which entry is effected by using passage which is not the ordinary means of entry or exit and the last three ways are the ones in which entry is effected by use of force. The entry of any part of the human body is sufficient to constitute housebreaking under Section 445 of IPC if the following ingredients are present:

1. Trespass;
2. House-trespass; 
3. The entrance by the trespasser must be done in any of the 6 ways prescribed above.

In Pullabhotla Chinniah case, the court held that the breaking open of a cattle-shed in which agricultural implements are kept would also amount to house-breaking. Further, making a hole in the wall to enter a house, using a window to enter a house, assaulting the guard or doorkeeper to enter a house, all amount to housebreaking and the accused will be liable for imprisonment not exceeding 2 years and fine under Section 453 of IPC.

Housebreaking by night

When housebreaking is committed after sunset and before sunrise, it is considered an aggravated form of house-breaking and is governed by Section 446 of IPC. This offence is punishable with imprisonment not exceeding three years and fine, according to Section 456 of IPC.

Dishonestly breaking open receptacle containing property

Meaning and punishment for dishonestly breaking open receptacle containing property are defined under Section 461 of IPC. The said section punishes whoever dishonestly or with the intent of committing mischief, breaks or open any receptacle or container used as storing place. The offence is cognizable, non-bailable and triable by any magistrate and the punishment for the same may extend up to 2 years, fine, or both. The ingredients of this offence would be:

1. There was a closed container or receptacle;
2. It contained property or the accused believed it contained property;
3. The accused intentionally broke opened the receptacle;
4. The accused did so dishonestly;
5. The accused did so with the intent to cause mischief.

The term ‘receptacle’ signifies all kinds of vessels and not only includes a safe box, chest or closed package but also includes a room or a part of a room such as a warehouse, or godown. The only condition is that such a vessel must be closed by means of chain or bolt or fastened in any manner. The offence is said to be completed as soon as the receptacle is broken or unfastened with dishonest attention to steal or cause any other kind of mischief.

Conclusion

If a stranger or for that matter even a known person enters any property in your possession with an intent to cause harm or injury, then such a person would be liable for committing an offence of criminal trespass under IPC and remedy can be sought by any court of law. While determining the offence of criminal trespass it is necessary to have an intention to commit wrong and mere knowledge would not amount to criminal trespass. Further, the punishment prescribed for the offence of criminal trespass would depend upon the aggravation that occurred while the crime was committed. House-trespass is a more serious offence than mere criminal trespass, lurking house-trespass and house-breaking are aggravated forms of house-trespass and lastly lurking house-trespass by night and housebreaking by night would attract the highest kind of punishment.

References

1. The Indian Penal Code
2. State of Calcutta vs Abdul Sukar, AIR 1960 CAL 189
3. Dhannonjoy v Provat Chandra Biswas, AIR 1934 Cal 480
4. Punjab National Bank Ltd v All India Punjab National Bank Employees’ Federation 1953 AIR 296, 1953 SCR 686
5. Ramjan Misrty v Emperor 162 Ind Cas 231
6. Prem Bahadur Rai v State (1978) CR.
7. Pullabhotla Chinniah (1917) 18 CR.

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This article is written by Gauraw Kumar, a student of BVP-New Law College, Pune. In this article, he covers ‘Attempt to commit Crime’ under Section 511 of the Indian Penal Code.

Introduction 

‘Attempt’ in general meaning is said to be an effort to achieve tasks or activities. “An ‘Attempt to crime’ is when someone tries to commit a crime but fails. ‘Law of Attempt’ under IPC prevents offenders from attempting the offence again and helps keep society safer.

‘Attempt’ is not defined in the Indian Penal Code. Section 511 of the IPC only dealt with punishment for attempting to commit offences.

‘A’ makes an attempt to steal some valuable things by breaking a box and finds after opening the box, that there is nothing in it. In this case, there is no crime occurred but it is punishable under the Indian Penal Code because it is considered as an “Attempt to Commit a crime”.

What is an Attempt to Commit a Crime? 

Attempt to commit a crime occurs when a person makes a proper mindset to do a criminal act and put a step forward for fulfilling by arranging the means and methods necessary for the commission of that crime but fail to do so.

A person with a proper mindset to commit a crime and also put a step forward to commit that crime by arranging the means and methods necessary for the commission but fails. Then we will say that the person has attempted to commit a crime.

Why is an Attempt to Commit a Crime Punishable?  

An attempt to commit a crime is a crime under the Indian Penal Code. Every attempt, falls short of success must create a threat in the mind of people which by itself is an injury and the moral guilt of the offender is the same as if he had succeeded. According to Section 511 of the IPC, only half of the punishment is awarded because the injury is not as great as if that crime had been committed. 

An Attempt to Commit a Crime – An Inchoate Crime? 

The term “inchoate” means “undeveloped”, “just begun”, “incipient”, “in an initial or early stage”.

Inchoate offences cannot be understood in isolation and must be read in conjunction with substantive offences. A characteristic feature of these offences is that they are committed even if the substantive offence does not reach a stage of completion and no consequence ensues.

Thus, if the offence of crime has not been completed, even then a person can be guilty of an attempt to commit a crime.

Actus reus and mens rea are essentials for a commission of any crime.

Actus reus: Action or conduct which is an element of a crime,

Mens rea: The intention or knowledge of wrongdoing that constitutes part of a crime.

Here, actus reus to commit a crime is not completed but mens rea to commit the same crime is completed in an attempt and therefore attempt itself would be said to have been committed at this stage.

However, some scholars disagree with the usage of the term “inchoate” because according to them, offences like a conspiracy, attempt, and incitement are complete in themselves although they form steps in the process of reaching an end, that is Actual commission.   

The Indian Penal Code 1860 and the Law of Attempt 

The word attempt is not defined in IPC but there are some cases in which the Supreme Court has tried to clear the concept of attempt.

In the case of Koppula Venkata Rao vs State of A.P. the Supreme Court has said that ‘Attempt’ should be taken as ordinary meaning. The ordinary meaning of ‘Attempt’ to commit an offence is an act or series of acts which leads inevitably to the commission of the offence unless something which the doer of the act neither foresaw not intended happens to prevent this. 

Section 511 of IPC deals with “Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonments”. 

This section deals with the one-half of imprisonment for life or one-half of fine as provided for offences or both.

Stages in the Commission of an Offence 

There are four stages in the commission of an offence:

• intention to commit an offence;
• preparation to commit an offence;
• attempt to commit an offence; and
• the actual commission of the offence.

1. Intention: Everyone cannot prove malice by looking at the brains of criminals. It is a psychological factor. It is impossible to know exactly the intention of a person. However, the acts of people and the context in which they act are often used to clearly indicate the intention of a person. So, it is not punishable.

But there are some exceptions in which ‘Intention to commit a crime’ are punishable. These exceptions are:

i) Waging war against the Government (Section 121,122,123)

ii) Sedition (Section 124 A)

2. Preparation: Preparation means ‘to arrange the means or measure for intending criminal act’. It is difficult to prove that the preparation was made for committing an offence.

For example: ‘A’ buys a knife for the purpose of killing ‘B’ but after some time, his intention to kill ‘B’ has changed and he used that knife in the kitchen. In this way, we can not be held liable for arranging means and measure for murder. So, mere preparation is not punishable under IPC.

But there are some exceptions in which mere preparation is punishable in IPC:

i) Preparation to commit Dacoity (Section 399);

ii) Preparation for counterfeiting coins and government stamps;

iii) Waging war (Section 122).

3. Attempt: Attempts to commit a crime are basically a positive step toward committing the contemplated crime after preparations have been made. The trail cannot be cancelled. Once an attempt is made, the perpetrator cannot change his/her mind and return to its original state without committing a crime.
4. Commission of Crime: The actual commission of the offence leads to criminal liability. If the accused succeeds in his attempt, the offence is accomplished. If he missed then it is considered as an attempt.

“If ‘A’ shoots ‘B’ by pistol to kill him. If ‘B’ dies, then ‘A’ is liable for murder. If ‘B’ is injured, then ‘A’ is liable for Attempt to murder”.

“If ‘A’ makes an attempt to pick the pocket of ‘Z’ by inserting his hand into Z’s pocket. ‘A’ fails in the attempt in reason of Z’s having nothing in his pocket. But ‘A’ is guilty under Section 511 of the ‘Indian Penal Code’ because he has attempted to commit the offence by putting a positive step towards the commission of the offence. 

An Attempt to Commit all Offence: Approach of the Indian Penal Code 1860

There are four different ways to deal with an offence in the Indian penal code:

• In some cases, the commission of offences and attempt to commit that offence have been dealt with the same section and the same punishment is prescribed for both.Such provisions are contained in Sections 121, 124, 124-A, 125, 130, 131, 152, 153-A, 161, 162, 163, 165, 196, 198, 200, 213, 240, 241, 251, 385, 387, 389, 391, 394, 395, 397, 459 and 460. 
• Attempt to commit offence and commission of the same offence, both have separate punishment in Indian penal code e.g. Section 302 dealt with punishment of murder and Section 307 dealt with an attempt to murder.
• Section 309 dealt with punishment of attempt to commit suicide.
• There are some cases where no specific provisions are made regarding an attempt. Section 511 of the IPC deals with such type of cases, which provided that accused shall be punished with ½ of the longest term of imprisonment mentioned for the offence or with fine mentioned for offence or both.

Attempt

Stages in the Commission of an Offence 

and Essential Elements 

 An attempt is defined in the case of Aman Kumar v. State of Haryana as follows:

• Attempt consist in it the intent to commit the crime.
• If any person failed to achieve that intention.

Abhayanand Mishra  v state of Bihar

In this case, the Supreme Court has described essential elements of ‘Attempt’ as follows:

i) Accused has an intention or means rea to commit the intended offence.

ii) He has taken a step forward (that is an act or step which was more than preparatory to the commission of the intended offence towards the commission of the contemplated offence).

iii) He failed to commit that intended offence by any reason.

When does Preparation end and Attempt Begin?

In Aman Kumar v State of Haryana, the Supreme Court held that the word ‘Attempt’ is to be used in its ordinary meaning. There is a difference between intention to commit offence and preparation. Attempt begins and preparation ends. It means when any step is taken towards committing that offence is considered as ends of preparation and begins of attempt.

Tests for Determining Whether an Act Amounts to a Mere Preparation or an Attempt to Commit an Offence 

At what stage an act or series of acts is done toward the commission of act intended would be an attempt to commit an offence. Some principles have been evolved to solve that issue:

(a) The Proximity Rule: Proximity in Relation to Time and Action or to Intention? 

The Proximity test examined how much the defendant close to completing that offence. Measured difference is the distance between preparation for the offence and successfully completion of that offence. In the case of Commonwealth v. Hamel, it was held that the proximity rule amount left to be done, not what has already been done, that is analyzed.

(b) The Doctrine of Locus Poenitentiae 

It deals with those cases in which an individual made preparation to commit the crime but changes his mind at the end, thereby pulling out at the last instant. Such intentional withdrawal prior to the commission or attempt to commit the act will be termed as mere preparation for the commission of the crime and no legal liability will be imposed.

(c) The Equivocality Test 

‘Equivocality Test’ is used to differentiate between preparation and attempt in a criminal case. When a person’s conduct, in itself, shows that the person actually intends to carry out a crime without reasonable doubt, then the conduct is a criminal attempt to commit that crime.

An act is proximate if it indicates beyond reasonable doubts what is the end towards which is directed. The Act to commit a specific crime is constituted when an accused person does an act which is a step towards the commission of that crime and doing of such an act cannot reasonably be regarded as having another purpose than the commission of that specific crime.

(d) Attempting an Impossible Act 

If a person attempts to commit a crime which is impossible, then also it will be punishable under the Indian Penal Code.

If a person attempts to kill someone by empty gun, or steal something from an empty pocket, or steal jewels from empty jewel box. Then it is considered as an impossible attempt of committing that crime but here intention to commit the crime is present and also a step is taken towards completion of that crime. Thus it is considered as ‘attempt to crime’ under Section 511 of the IPC.

Conclusion

Actual commission of the offence is not important to prove anyone guilty. Anyone can also be guilty of mere commission or attempt to an offence under Section 511 of the IPC. There are three essential for the attempt to the offence. The initial stage is to prepare a proper mindset for the offence. Secondly, proceed a step forward toward the commission of that offence. Lastly, fails to commit that intended offence.

Intention to kill someone by an empty gun is not a crime but it is satisfying all the essentials of an attempt of crime. So, this is punishable under Section 511 of the IPC.

There are some principles for determining whether an Act amounts to a mere preparation or an attempt to commit an offence.

References

• Indian Kannon
• Wikipedia
• Bare act of IPC

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This article has been written by Lakshmi. V. Pillai of 5th year pursuing B.A. LL.B from GLS Law College, Ahmedabad.

Introduction 

Under the European Union law, in the Treaty on the Functioning of the European Union (TFEU) under the provisions of Article 102, the concept of Abuse of Dominance is laid down. 

As per the EU law, a company/undertaking will not be considered as abusing its dominant position per se just because it is dominant in the market. There are precedents that layout the factors which are counted as an abuse of dominant position by the company.

The factors are as follows:

1. The undertaking using its dominance is acting independently.
2. And the independent act of the undertaking is adversely affecting the consumers and competitors.

By acting independently we understand that the undertaking is in such a position wherein it need not consider the consumers and competitors. As it carries a huge market share which gives it the liberty to act independently as per its need. And this independent act from the dominant adversely affects the competitors and consumers which results in the distortion of the fair competition in the market, which subsequently turns out to be ‘abuse of dominant position’.

While considering the Abuse of Dominant Position the points which need to be considered are:

1. The substantial market power of the undertaking;
2. The ability of the undertaking to control entry conditions;
3. And the degree of buyer power from the undertaker’s customers.

To assess whether the undertaking concerned is dominant or not, it is important to understand the relevant market. To determine the relevant market of the undertaking the product market and the geographic market are considered.

By product market, it means the availability of the substitute or the interchangeable product in the relevant product market to the consumer based on characteristics of the products or services, their prices and intended use. If there are no substitutes then that means the undertaking is enjoying the dominance in the market. This happens when the competitor does not have any substitute or a similar product to sell in the market. So if any other substitute is available then the consumer has an option to opt which cuts down the market share of the undertaking.

By geographic market, it means relevant geographic market comprises the area in which the conditions of competition for the supply of goods or provision of services or demand of goods or services are distinctly homogeneous and can be distinguished from the conditions prevailing in the neighbouring area. The factors which are considered under these criteria are regulatory trade barriers, local specification requirements, national procurement policies, adequate distribution facilities, transport costs, language, consumer preferences and need for secure or regular supplies or rapid after-sales services.

Another important factor that is considered while determining the dominance of the undertaking is the market shares. Under the EU law if the company has more than 40% of market share, then it is considered to be a preliminary indication of dominance.

As per Article 102 of the TFEU, under the following grounds the abuse can be determined:

(a) when there is direct or indirect imposing unfair purchase or selling prices or other unfair trading conditions to the product in the market; 

(b) limiting production, markets or technical development to the prejudice of consumers by the dominant undertaking; 

(c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; 

(d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.

By reading Article 102 of the TEFU the Abuse of Dominance can be categorized into two major practices:

• Pricing practices:

This practice is performed by the undertaking by controlling the pricing of the products and services in the relevant market abusing its dominant position in the market. Article 102 (a) of the TFEU specifically deals with the pricing practice.

• Non-pricing practices:

These practices do not have a direct impact on the pricing of the products in the relevant market however, the dominant undertaking performs such acts that can affect the consumer and competitor directly or indirectly. By putting restrictions on the dealings of the seller, tying products, by putting conditions on the seller to refuse the supply of the product to particular consumers or market. The sub-clauses (b), (c) and (d) of Article 102 of the TFEU deals with the non-pricing practices.

Exceptions to certain acts under the TFEU 

However, it is to be noted the TFEU provides some exceptions which will not be considered as an act of Abuse of Dominant Position. The burden of proof is on the defendant in such cases.

“Any agreement or category of agreements between undertakings, any decision or category of decisions by associations of undertakings and any concerted practice or category of concerted practices:

1. which contributes to improving the production or distribution of goods or;
2. to promote technical or economic progress;  

While allowing consumers a fair share of the resulting benefit, and which does not: 

1. impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives; 
2. afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question”.

UK Law

Till the time the United Kingdom is a part of the European Union, the courts of the UK need to consider its Competition Act with parlance to the EU Treaty.

Section 18 (Chapter II Prohibition) of the Competition Act 1998 states that ‘any conduct on the part of one or more undertakings which amounts to the abuse of a dominant position in a market is prohibited if it may affect trade within the United Kingdom’.

However, there are two major differences between EU and UK law:

1. Under UK law, no cross border effect needs to be proven;
2. There is no minimum threshold mentioned under UK law.

To check and regulate the anti-competitive activities in the UK, there is a non-ministerial government department- Competition and Market Authority (CMA). It is responsible for strengthening fair competition in the business/market of the UK. The CMA is the successor of the Competition Commission and the Office of Fair Trading and it started fully operating on 1 April 2014.

Exclusive Dealing Agreements

In Exclusive Dealing Agreements, the customers are tied up in a contractual obligation wherein they are required to purchase specific goods or services exclusively from a particular supplier for a particular period of time. The time duration can vary from case to case. This kind of obligation prevents customers from exploring other suppliers. And this results in the creation of barriers to the competitors of the undertaking to enter into the market and provide service to the customers.

As per paragraph 32 of the Guidance of the Commission, the ‘Exclusive Dealing Agreement’ is defined as “A dominant undertaking may try to foreclose its competitors by hindering them from selling to customers through the use of exclusive purchasing obligations or rebates, together referred to as exclusive dealing. This section sets out the circumstances which are most likely to prompt intervention by the Commission in respect of exclusive dealing arrangements entered into by dominant undertakings.”

Hoffmann-LaRoche v Commission of the European Communities– It is a landmark case which laid down the principles of Abuse of Dominant Position. A dominant undertaking said to be abusing its dominant position “when that ties purchases, even if does so at their request, by an obligation or promise on their part to obtain all or most of their requirements exclusively from the said undertaking.” 

EU Law

The application of Article 102 TFEU to exclusive dealing agreements.

In the EU law under Article 102 (2) (c) of the TFEU deals particularly about exclusive dealing agreements.

Meaning of exclusivity

The exclusive dealing agreements can be of two types:

1) Exclusive supply obligation– In this type of obligation, the supplier is restricted from supplying the service or goods to any other party other than the specific downstream customers.

2) Exclusive purchasing obligation– In this, the purchaser/customer is restricted from acquiring the goods or services other than a specific supplier.

The perfect example for exclusive purchasing obligation is the Intel v Commission case, wherein the General Court held that the requirement on the part of the customer to buy 80% of CPU’’s requirements from the Intel results into the agreement which is analogous to the abuse of dominant position.

However, there are some factors to which we can look into wherein we can understand what can lead to an exclusive dealing agreement. The elements for exclusive dealing are well established and comparable to other abuse of dominance cases:

• Market power by at least one party to the arrangement; 
• Conduct that forecloses rivals from the opportunity to compete; and 
• The absence of overriding legitimate business justification.

As per Article 102 of EU law, market share is always an important determining factor. But in various cases of EU courts, the thresholds of determining the dominance of the company varied which certainly make confusion in the minds of the people. Except in some cases, the other factor which carries prudent weight is foreclosing the opportunity to the entrants. By understanding various cases adjudicated by the EU courts the points which are essential to consider an act as an abuse of dominant position under the exclusive dealing agreement will be comprehensible.

Judgments in the EU Courts

Konkurrensverket v TeliaSonera Sverige [2011]

Konkurrensverket v TeliaSonera Sverige is the first case in which the Stockholm District Court penalized the highest fine of a total amount of SEK 144 million due to a violation of Chapter 2, Section 7 of the Swedish Competition Act and Article 102 TFEU respectively. In the year 2004, the Swedish Competition Authority (Competition Authority) brought an action against TeliaSonera, a telecom operator. The District Court found that TeliaSonera had abused its dominant position by a margin squeeze by offering wholesale and end-user services for broadband connections at prices where the margin between the wholesale price and the price to households was insufficient to cover TeliaSonera’s costs for offering broadband to households. The price squeeze had occurred on the Swedish market during the period April 2000 through to January 2003. 

According to the District Court, TeliaSonera had, in several cases, applied higher prices towards competitors than private customers. The marginal squeeze resulted in no entry of the new entrants and forced them to make their prices extremely less which them not able to do active marketing.

However on 30 January 2009, the Court stayed the proceedings and referred the matter to the ECJ. The ECJ answered the referred questions through a preliminary ruling on 17 February 2011. 

The ECJ stated that in the absence of any objective justification, the fact that a vertically integrated undertaking, enjoying a dominant position on the wholesale market for ADSL input services, applies a pricing practice of such a kind that the spread between the prices applied on that market and those applied in the retail market for broadband connection services to end-users, was not sufficient to cover the specific costs which that undertaking must incur in order to gain access to that retail market, may constitute an abuse within the meaning of Article 102 TFEU.

Post Danmark A/S v Konkurrencerådet [2012]

In Post Danmark case the CJEU ruled that: “Article 82 EC [now Article 102 TFEU] must be interpreted as meaning that a policy by which a dominant undertaking charges low prices to certain major customers of a competitor may not be considered to amount to an exclusionary abuse merely because the price that undertaking charges one of those customers is lower than the average total costs attributed to the activity concerned but higher than the average incremental costs pertaining to that activity, as estimated in the procedure giving rise to the case in the main proceedings.” 

Therefore, if the dominant firm charges prices below average total cost (ATC) but above average variable cost (AVC) to attract a rival’s customers is not in itself an infringement, even if the discount is selectively made to target rivals’ customers. To constitute abuse, the selective price-cutting must be shown to be part of a scheme to dominate and to be capable of having that effect, rather than merely reflecting competition for customers.

The Commission’s approach to exclusive purchasing agreements

As from the above cases, we can understand that the commission majorly focuses on one aspect, i.e. whether the act of reducing prices or having a contractual obligation with customers is hindering the entrance of the competitors or new entrants in the market. If the dominant company is making barrier through various strategies which distort the fair competition in the market then that will ultimately be considered as an abuse of dominance. 

However, in the case of TeliaSonera the commission had laid down a test called “efficient competitor-test” as per paragraph 40 of the case the court observed that- “Where an undertaking introduces a pricing policy intended to drive from the market competitors who are perhaps as efficient as that dominant undertaking but who, because of their smaller financial resources, are incapable of withstanding the competition waged against them, that undertaking is, accordingly, abusing its dominant position.”

There is a methodology laid down by the commission to determine whether the dominant undertaking is abusing its position or not. 

The method is as follows:

• Firstly, determine the margin of the input price and the price of the derived product of the dominant undertaking.
• Secondly, compare the undertakings own cost of processing the input product to the derived product. If the margin of the second outcome is lower than the first one then that means there is an abuse of dominance. 

Article 102 applies to de facto as well as to contractual exclusivity

Article 102 applies to de facto as well as contractual exclusivity. The de facto exclusivity results when there is no stipulation regarding exclusivity upfront, however, the act of the undertaking is as such which results in exclusivity.

In the case of Van Den Bergh Foods, the commission noted that Van Den Berg is exclusively providing free freezers to the retailers with a condition that they will store any other ice cream other than Van De Berg’s ice cream. the result of this practice was de facto the Van Den Berg able to close the outlets for other competitors and took control of all retailer outlets. Under para 33 of the Guidance on Article 102 Enforcement Priorities- ‘stocking requirements’ are considered as a practice which can lead to anti-competitive behaviour.

Is there an objective justification for a long-term agreement?

In recent cases like Distrigaz case (2007) and EDF case (2010), long-term contracts were considered as harming the fair competition in the market. In both cases the firms were having the public monopoly in the market, the EDF had a monopoly in the supply of electricity to large industrial customers and Distrigaz had a monopoly in the supply of gas to large customers. The Commission has taken a hard stand regarding dominant firms and their long term contracts. the term of the contracts was varying from 8-10 years. The firms need to prove that the long term contracts are not deterring the rivals from entering the market. The main concern for the commission was long term contracts between energy companies and their customers which was leading to customer foreclosure. Whether exclusive contracts are foreclosing often presents an interesting issue. Courts and regulators typically look to some combination of the percentage of the available customer base to whom the contracts applied and their duration. 

There is no as such objective justification, as a company applying dominance in the market varies from case to case. The important fact is that the dominant power of the company affected the competitor.

The potential for harm to competition from exclusive contracts increases with: 

(1) The length of the contract term; 

(2) The more outlets or sources covered; and 

(3) The fewer alternative outlets or sources not covered.

The Commission also provides Guidelines on exclusive dealing which states that ‘in general, the longer the duration of the obligation, the greater the likely foreclosure effect’. 

The Commission’s Guidelines on Vertical Restraints give a little more specific time duration under which the act of the dominant can be considered as an Abuse of Dominant position. The Guideline is as follows “single branding obligations exceeding five years are for most types of investments not considered necessary to achieve the claimed efficiencies or the efficiencies are not sufficient to outweigh their foreclosure effect’. However, it is important to understand that the quote points are rebuttable presumption and the burden of proof is on the respondents to prove that they do not come under the ambit of anti-competitive behaviour.

UK Law 

In the matter of exclusive dealing agreement there are a series of cases which we can refer to:

The Arriva v Luton Airport case, Luton Airport’s decision to grant National Express exclusive right to provide bus service from the airport to various London locations for seven years. It was also combined with a right to refuse new routes. This was held to anti-competitive by the High Court in 2014.

A similar case was there in the Court of Appeal in the matter of National Grid, the provisions regarding meter readers that lasted for many years, adding charges for early termination and a clause which required to maintain a proportion of National Grid’s meters at the end of each year. The terms by National Grid in their agreements were considered as exclusionary by the commission. 

There was another case of EWS Coal Haulage Contracts in which the Office of Rail Regulation (ORR) noticed that the EWS Coal Haulage was entering into long term agreement which is approximately 10 years with the owners of power stations. It has been also noted that in certain cases they are supplying all of their coal rail haulages to the parties. Such agreements were also considered as anti-competitive agreements.

The case concerning exclusivity through commitments has also been looked after by the CMA. 

In Western Isle Road Fuels they made a five-year exclusive deal agreement with the customers which is made terminable on three months’ notice, this was considered as an anti-competitive agreement.

Tying

Terminology and illustrations of tying

As per the Commission’s Guidelines, the tying “refers to situations where customers that purchase one product (the tying product) are required also to purchase another product from the dominant undertaking (the tied product).”

The Tying can take place on two basis:

1. Technical basis

It occurs when the tying product is designed in such a way that it only works properly with the tied product (and not with the alternatives offered by competitors).

2. Contractual basis

It occurs when the customer who purchases the tying product undertakes also to purchase the tied product (and not the alternatives offered by competitors).

The term bundling is usually used interchangeably with the term tying, however, it is important to understand that in general terms bundling is considered as legal with certain conditions but tying is illegal. Bundling basically “refers to the way products are offered and priced by the dominant undertaking.”Another important thing to note is Indian law differentiates between tying and bundling but the EU law, UK law, and US law does not differentiate the two terms. 

In bundling is also there are two types:

1. Pure bundling– In the case of pure bundling the products are only sold jointly in fixed proportions. 
2. Mixed bundling– In the case of mixed bundling, often referred to as a multi-product rebate, the products are also made available separately, but the sum of the prices, when sold separately, is higher than the bundled price. 

This practice is performed to provide customers with better service at less cost. A dominant undertaking may try to foreclose its competitors by tying or bundling. Product bundling may not only squeeze existing competitors out of the market but also deter potential competitors from entering the market. 

For example: If an IT manufacturer bundled the charger with the laptop then it is not coercing the buyer to buy anything unrelated to the product. However, if a webcam is tied with the laptop, that coerces the buyer to take the product which is something not needed to run a laptop. Therefore such agreements can be considered as anti-competitive.

Policy considerations: arguments for and against tying

The reason behind the objection of the tying practice is basically because leveraging its position as a dominant firm in relation to the tying product can increase their sales and therefore they can extend their market power. and this practice can be an example of horizontal foreclosure. This is so powerful that earlier in the US law it was held to be per se illegal. 

However, over time this kind of approach was subjected to sustained criticism. The ‘Chicago School’ of economists was one of them who made the central thrust for this criticism. Their viewpoint was that a monopoly can make a profit on product A for a particular duration but it can not extend the same leverage to product B after the completion of the duration. This insight was quite persuasive and thereby the US law subjected this anti-competitive behaviour under the ‘rule of reason’, which requires the commission to probe into the matter, giving full analysis to the behaviour of the dominant considering likelihood of competitive harm. 

So, today tying is not per se considered as illegal. Rather it is considered as a normal feature of commercial life, wherein things are tie-up so that customers can get the benefit of the product wholly.

The benefits of tying are as follows:

1) By tying the components are integrated into one product and this leads to significant economic efficiency to the firm.

2) It results in lowering the cost: 

1. the product; 
2. the production;
3. the distribution.

3) It improves the quality of the product.

4) It can increase the efficiency of the product.

EU Law

Under the EU law Article 101 (1) (e) and Article 102 (2) (d) deals with the tie-in arrangement agreements. Article 101 applies to vertical agreements (para 214-222), however, Article 102 is based on those tie-in arrangements which is created by Dominant undertaking. Article 102 (2) (d) states tie-in arrangements as follows “making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.” 

However, in various cases, the Court of Justice held that if the act does not precisely come under the ambit of Article 102(2) (d) then it can be considered under Article 102. In the case of Tetra Pak v. Commission, the court observed that there was an unlawful tie in which products were connected by commercial usage and such a connection is not expressly mentioned in the phrasing of Article 102(2)(d), still that was considered to be a part of tying under abuse of dominance (para 37 of the judgment). However, the same observation was made by the General Court in the case of Microsoft Corp. v. Commission but it concluded that the act of the firm fell under the ambit of Article 102 (2)(d).

While determining infringement under Article 102 following issues must be considered:

a) Does the accused undertaking has a dominant position?

b) Is the dominant undertaking guilty of tying two distinct products?

c) Was the customer coerced to purchase both the tying and tied products?

d) Could the tie have an anticompetitive foreclosure effect?

e) Is there an objective justification for the tie?

Does the accused undertaking have a dominant position?

The ambit of Article 102 is itself all about dominance in the market, so if any firm/ undertaking is in dominant position then only their actions can be covered under the infringement otherwise it is not possible. As per the guidance of the Commission the undertaking need to be dominant in the tying market rather than in the tied market. This means the tying product is the main product to which another product i.e. the tied product is attached. If the undertaking dominates the tying product then only it can coerce the consumer to buy the tied product. For example, Apple Company has a monopoly in manufacturing laptops or mobile phone, however, the headphones of apple are not in monopoly, in such cases the Apple can have tying agreement. Therefore, as per the Guidance of the Commission, a monopoly in the tying market will suffice. However, in the bundling market having the monopoly in one of the bundled markets will be enough. The undertaking should be dominant in the tying market, though not necessarily in the tied market. In bundling cases, the undertaking needs to be dominant in one of the bundled markets. But in some ‘special’ cases in the aftermarket of tying market dominance can be in tying as well as in the tied product. 

Is the dominant undertaking guilty of tying two distinct products?

To determine, whether the dominant is guilty of the tying of two distinct products, it is important to understand what can be a distinct product.

The distinct product generally means the customer would have bought the tying product without purchasing the tied product. Therefore, this leads to stand-alone production of both the products. The commission considered the demand of the customer to determine the tying of two distinct products. There can be two types of evidence to determine the same:

1) Direct evidence: In this, the customer has purchased the tying products separately from different sources of supply if given a chance.

2) Indirect evidence: There are various to determine indirect evidence, they are as follows: 

1. The presence of the undertaking which is specialized in manufacture or sale of the tied product in the market without tying product; or
2. number of each product which is bundled by the undertaking; or
3. evidence which shows that undertakings which have little power in the market as are not bundling or tying similar products.

By this, we understand that when customers are forced to purchase as a product with another product which they are intended to purchase then such practice turns out to be an abuse of dominant position by the undertaking.

For example, you want to buy a car, the manufacturer or seller gives you four tyres with the car. Now this as such cannot be called tying. Further, a spare tyre is also provided by the seller, which can also be considered as fair practice. But if the seller tells you to purchase a radio or have insurance from a particular insurance company then that will be considered as tying.

Therefore in each case, the situation will differ, and it is on the circumstances and evidence we can determine that particular product tied is infringing Article 102. Generally, in such cases, the burden of proof lies on the authority or claimant. 

Euro fix-Bauco v Hilti

In the Euro fix-Bauco v Hilti case, Hilti was accused of doing the sale of nails (tied product) with nail gun (tying product) upon the customer. The tying was not absolute the customers were given a discount if they buy nails with nail guns. The Commission held that Hilti’s practices (para 75) “leave the consumer with no choice over the source of his nails and as such abusively exploit him.” The Hilti appeal to the General court. The argument made by the Hilti was that they want to protect their customers. The point made by Hilti was the nails provided by the other company did not comply with the nail guns provided by the other companies. The General Court invalidated the argument, as there was no valid evidence for the same and the commission also stated that it is not Hilti’s responsibility to take care of their customers towards other products.

Tetra Pak International SA v Commission

In the Tetra Pak International SA v Commission case, Tetra Pak was forcing its customers to only use Tetra Pak cartons while packaging Tetra Pak machines. And it was made mandatory to obtain the cartoons exclusively from Tetra Pak. The General Court held that “where an undertaking in a dominant position directly or indirectly ties its customers by an exclusive supply obligation, that constitutes an abuse since it deprives the customer of the ability to choose his sources of supply and denies other producers access to the market.” And the same was upheld by the ECJ (European Court of Justice) in the appeal made by Tetra Pak. 

Microsoft Corp v Commission

The case Microsoft Corp v Commission was filed in 1998, the Sun Microsystems filed a complaint against Microsoft. The complaint was based on the Abuse of domain position by Microsoft. They were tying their media player (tied product) with the Operating system(tying product). Customers do not have the choice to purchase the tying product without the tied products. The court observed that the Operating system and the media player are two distinct products and therefore it is not a part of technological advancement. The Commission fined €497 million and as a remedy appointment of Independent, Monitoring Trustee was made. The commission order was appealed in the Court of First Instance (Grand Chamber). On 17 September 2007, the judgment of the Commission was upheld by the Court. 

In January 2008, again the Commission initiated fresh proceeding against Microsoft. The Opera was the complainant, who was a competing browser. The complainant alleged that Microsoft’s inclusion of the Internet Explorer needs to be considered as an illegal tie. In December 2010 the Commission announced that Microsoft had accepted the commitments under Article 9 of Regulation 1/2003. And under the commitment, Microsoft accepted to allow its users of Windows to choose different web browsers. However, a fine of €561 million from May 2011 to July 2012.

Was the customer coerced to purchase both the tying and tied products?

The phrasing of Article 102 (2) (d) is clearly states that when two distinct objects which actually do not need to be tied up is tied up by the company by giving discounts or putting conditions as we saw in the case of Tetra Pak that the tying product is only available if the tied product is purchased by the customer. Hence, the result is the customer is coerced to purchase both the tying and tied products.

Could the tie have an anti-competitive foreclosure effect?

In Microsoft case, one of the factors on which the Court emphasized was the tie-in arrangement which will result in the foreclosure effect on the competitors. Attaching media player with the Operating system was per se restricting the other media player of competitors was creating a detriment effect on the competitors. The operating system of Microsoft in the year 2002 had 90% market share, the users who get pre-installed media player with the Operating system would be less likely to opt for the media player system of competitors. 

In the case of Napier Brown/British Sugar,(Commission Decision of 18 July 1988), the commission held that the foreclosure effect resulted in tie-in arrangement considered as an infringement of Article 102. Napier Brown was the leading sugar supplier in the UK. However, they put a condition that sugar will only be sold if the right to transport of sugar is given to them. This eliminated the market of other competitive transporters, therefore the Commission held it as an act of infringement to Article 102(2) (d). 

Is there an objective justification for the tie?

The dominant firm can make an argument by saying that the tying was made to make the product more efficient. However, this argument made by the firms is not considered normal by the Commission, as in the Microsoft case and Hilti case it was evident.

In paragraph 62 of the Guidance of the Commission, the Commission will look into the claims of Dominant undertakings if:

1) They benefit the consumers;

2) They reduce the transaction costs;

3) Combining two independent products will enhance the product;

4) The supplier wants to pass efficiencies arising from its production to consumers.

If the above claims are made and proved with evidence by the Undertaking then that will be considered as objective justification.

UK Law

Under the UK Law Chapter II Sec 18 (2) (d) of the Competition Act, 1998 deals with the tie-in arrangements.

“making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of the contracts.”

However, there is a small difference between the application of Article 102 of the TFEU and Chapter II of the UK Competition Act, 1998. Under Chapter II, even the firm having a Dominant Position in a fairly small area of the UK, then that will be also considered as dominance. 

Refusal to Supply

Refusal to supply per se is not anti-competitive in the eyes of Competition laws. A firm can refuse to supply if it has certain objective justifications. Consider for example if an oil pipeline company refuses to give pipeline service to an oil producer then there can be some rationale behind the refusal. the reasons can the oil producer produce bad oil or no good reputation in the market regarding oil production, management concerns or peak load concerns. Such reasons are justifiable, but if the pipeline company does not give supply to an additional customer, then there the question arises why, and the Commission will look into the matter thereafter. 

As per Commission’s Guidance para 78 the concept of refusal to supply covers a broad range of practices. They are as follows:

1. A refusal to supply products to existing or new customers;
2. Refusal to license intellectual property rights; 
3. Refusal to grant access to an essential facility or a network.

Refusal to supply can be vertical as well as horizontal. By using this practice by the vertically integrated dominant undertaking it can lead to a potential strategy in the market. In the vertical refusal to supply a dominant firm tries to eliminate the competitors from the downstream market and thereby it protects its market share and prevents itself from effective competition. This is generally practiced by refusing supply or access to the competitors to an input in which the undertaking is in a dominant position. For example, it can deny to give access or refuse to give raw material, pipeline services, harbor facility services, etc. 

However, in the horizontal refusal to supply it directly stops to give supply or service to the competitors or tries to stop distributors from giving service to the competitors. In the United Brands Company and United Brands Continentaal BV v Commission of the European Communities (Judgment of the Court of 14 February 1978) (Case 27/76), they tried to stop distributors to participate in an advertising campaign of the competitors which was considered as an act against Article 102.

EU Law

Vertical foreclosure: competitive harm in a downstream market

Is there a refusal to supply?

There are various factors the Commission looks after in the case of refusal to supply. As per the Commission’s Guidance paragraph 79 it is not necessary that refused product is in the market, even if the product is in demand from potential purchasers and there is stake in the potential market on the input of the product that will suffice the conditions to put the dominant undertaking in a position to refuse the supply of the product. 

Another type of refusal to supply is ‘constructive refusal’. Upfront when we see the practice we can not conclude it as a refusal to supply, however, this is a tactic by the undertaking in which they make such conditions where the other party itself withdraws from the contract. For example by unduly delaying the supply of the product, or else providing a degraded product, or to impose unreasonable impositions or conditions at the party.

However, the Commission under the following conditions will strictly give enforcement priority if mentioned all circumstances are present in the refusal to supply (as per paragraph 81, Communication from the Commission — Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings(2009/C 45/02):

1. If the refusal of service or product sufficiently effects the effective competition on the downstream market;
2. If refusal leads to the elimination of effective competition on the downstream market;
3. If the consumer is likely to be affected by the refusal.

In the case of Commercial Solvents v Commission– As per paragraph 25 of the Judgment, “An undertaking which has a dominant position in the market in raw materials which, with the object of reserving such raw material for manufacturing its own derivatives, refuses to supply a customer, which is itself a manufacturer of these derivatives, and therefore risks eliminating all competition on the part of this customer, is abusing its dominant position”. 

Further, in the case of Bronner v Mediaprint, it was held that when there is no potential or actual substitute and the refusal creates concern on business due to indispensable input, then such refusal is likely to eliminate the competition and such refusals can not be objectively justified.

However as per paragraph 77 of Commission’s Guidance, certain actions by the undertaking will not be considered as a refusal to supply, those practices will be dealt under exclusive dealing and tying and bundling:

1. When supply is halted in order to punish the customers as they are dealing with competitors;
2. Refusal to supply when the customers do not comply with tying arrangements, likewise.

Does the accused undertaking have a dominant position in an upstream market?

As per Article 102, one of the important factors which need to be fulfilled is that the undertaking is in a dominant position. When the undertaking has a dominant position in the upstream market then only it can refuse to give supply or restrict its supply to the downstream market. 

In De Montis Catering Roma v. Aeroporti di Roma, the Rome airport was fully controlled by a state-owned company. They were exclusively providing maintenance and ground services. When another company asked for permission for catering services the state-owned company denied to give rights to them. This was observed by the Italian Antitrust Authority and they found that refusal with no justification by Aeroporti di Roma leads to the extent of its monopoly. Refusing the consumers from getting good services from new entrants is also anti-competitive. Thereby, we can understand that a dominant undertaking can create such circumstances which can result in anti-competitive behavior.

Is the product to which the access is sought indispensable to someone wishing to compete in the downstream market?

When a dominant firm refuses to give access to the input in the downstream market which is indispensable for the downstream for the work, the firm creates a monopoly in the market by refusal and thereby it increases its monopoly strength. By creating scarcity to its services at the downstream market the monopolist finds it profitable, as it can overcome the regulatory constraints and also at the same time it can create a barrier to the competitor. Thereby the competitor turns to be incompetent to provide service and this leads to the elimination of the competition. 

Would a refusal to grant access lead to the elimination of effective competition in the downstream market?

The paragraph 85 of the Commission’s Guidance clearly says that a refusal by a dominant undertaking over time or immediately can lead to the elimination of effective competition. We can understand this by an example, there are two dominant undertaking- Du1 and Du 2. Du 1 has 40 % market share and Du2 have 60% market share in two different relevant markets. 

If Du2 refuses to supply to its downstream competitors, the elimination of effective competition is double compared to Du1 refusal to supply. Thereby, we can understand that if a dominant undertaking who have greater market share refuse to supply the downstream competitors will be having less option to opt with, and this scarcity in the market creates the monopoly of the dominant undertaking. This results in the foreclosure of the competitors, they will divert away from the market and this will advantage the dominant undertaking.

Is there an objective justification for the refusal to supply?

Some objective justifications are argued by the dominant firm regarding its refusal to supply. As per paragraph 89 and 90 Commission’s Guidance on Article 102, the Commission can consider the points if they are as follows:

1) When it is necessary for the operator to compete effectively on the market, which means the operators can refuse to supply to competitors in case if they feel that there are chances of Duplication. However, the Commission will make an effective assessment of the capacity of the competitor to make such duplicated of the operator’s product.

2) The operator can refuse to supply it the other party is not giving adequate compensation to the operator. Such situations can include wherein:

1. The customer is credit risk;
2. The customer is a bad debtor;
3. The customer will use the product for illegal purposes;
4. The customer failed to observe the contractual obligations.

However, de novo refusals are different from the above situation. De novo refusal means when from the initiation the operator refuses to supply to a particular party. But it is to be noted that refusing an existing agreement considered as more abusive compared to the de novo refusal, therefore it is on the firm to justify their action.

Remedies

Fine and injunctions are some remedies that are available if there is an infringement of Article 102. However it is noticed that to make the judgment implement it takes quite a long time, an example is Microsoft case, wherein it took three years and two decisions for the application of the obligation terms by the Microsoft case.

Horizontal foreclosure

Refusal to supply a distributor as a disciplining measure

In the case of United Brands Company and United Brands Continentaal BV v Commission of the European Communities (Judgment of the Court of 14 February 1978), United Brands trying to put a disciplinary measure on the distributor as they were distributing the competitor’s product as well. The act of the United Brands to prevent the distributor from participating from the advertisement campaign of the competitor even when there was no exclusive purchasing obligation held to be an Abuse of Dominant Position by United Brands. This will be considered as horizontal foreclosure as the United Brands were trying to stop the contract between the distributor and competitor.

Refusal to supply a potential competitor in the supplier’s market

As an exclusionary tactic, if a supplier immediately refuses to supply the product to a customer who can become a potential competitor who is trying to enter an upstream market, it can be considered as an abuse. The Commission found that in BBI Boosey & Hawkes: Interim Measures case (Commission Decision of 29 July 1987), the act dominant to refuse the supply of brass band instruments altogether immediately to a distributor who was intending to be the manufacturer of such instruments in the future was an abuse of Dominant Position. The Commission said that taking reasonable steps by the Dominant need to be proportional and fair, however withholding all supply suddenly is abusing its dominant position in the market

Refusal to supply on the basis of nationality

As per Article 18 of TFEU, discrimination on the grounds of nationality is considered as a discriminatory practice. In the case of Football World Cup 1998 Commission Decision of 20 July 1999, the Commission investigated the arrangements of ticketing as it was discriminating French residents. The Court of Justice in the GVL v Commission case held that to refuse to give membership to other nationals in national copyright collecting society is discriminatory.

Refusal to supply to prevent parallel imports and exports

In the case of BL v Commission, the BL was refusing to give certificates to the metro cars to be imported to the market, which was considered to be a restriction on parallel imports and the Court held that BL had abused its dominant position by doing such practice. Further, in the case of the United Brands v. Commission, the UB made a ‘green banana clause’ with distributors by preventing them to export unripened bananas to the other places. In this case, also the court held that UB having 45% share market abused its dominant position by imposing such clauses with the distributors.

UK case law

In the case of JJ Burgess & Sons v Office of Fair Trading, the CAT (Competition Appellate Tribunal) concluded that the W Austin & Sons (“Austin”) had Abuse of Dominant position by refusing to grant of Harwood Park Crematorium to JJ Burgess & Sons (“Burgess”). This was the case that was brought on an appeal by Burgess against the order of the OFT dated June 29, 2004, in which they held that Austins were not held liable for the Abuse of Dominant position. However when it was taken to appeal the CAT observed that Burgess are in competition with Austin in the downstream market for funeral directing services, hence to protect its market they abused their dominant position. The CAT surveyed the whole case and formulated some propositions which were sufficient to reach a finding on the facts of the case. The propositions can not be held as exhaustive, however, they are determinative to conclude whether it is a refusal to supply or not.

Non-Pricing Abuses that are Harmful to the Internal Market

British Leyland Public Limited Company v Commission of the European Communities (Judgment of the Court (Fifth Chamber) of 11 November 1986)- parallel import- this was the case which was upheld by the Court of Justice of the European Union when an appeal filed against the Commission. In this case, BL was trying to discourage the parallel import of the Metro cars from the continent by refusing to supply type-approval certificates. The Court held that BL is abusing its dominant position by refusing to give approvals for the certificate. 

United Brands Company and United Brands Continentaal BV v Commission of the European Communities (Judgment of the Court of 14 February 1978)- export ban- United Brands committed an abuse by restricting its distributors to impose ban on the exportation of the green and unripened bananas and this practice lead to export ban as ripened bananas can be exported. UB had 45% market share which made it amount to be in ‘dominant position’ in the market. The UB inserted a “green banana clause” which effectively resulted in the prevention of exporting Chiquita bananas. Therefore, this practice of UB by the Court in the case against appeal of the order of the Commission was held to be anti-competitive and breach of Article 102. 

Miscellaneous Other Non-Pricing Abuses

Harming the competitive structure of the market 

In the case of Tetra Pak I (BTG licence), as per paragraph (59) (44), it has been observed by the court that Tetra Pak has 91.8 % of market share, in the EEC (European Economic Community) market and has automated technology which was able to supply cartoons in continuous form. The other competitor was PKL which had the technology which was only able to supply individual flattened blanks. Therefore, Tetra’s technology was already superior to its competitor. Furthermore, an acquisition of an exclusive license from BTG (British Technology Group ) will fully eliminate the competition in the market. Because of this elimination of the competition how consumers will be allowed to get fair pricing or share in any benefits was also a question. By these observations, the Court concluded that an argument from the TetraPak that exclusive license will increase its efficiency is not sufficient enough to avoid that point that it can drastically harm the competitive structure of the market.

Vexatious litigation

The litigations which are filed to ‘Abuse’ of the process can be called as Vexatious litigation. In the US this is termed as ‘Sham litigation’. The abuse of process can be done by making a misrepresentation in the regulatory process or fraudulently using the regulatory process before patent offices. This can also be done by instigating litigation with a collateral purpose to harm the competition in the market.

In the case of ITT Promedia NV v Commission of the European Communities (Judgment of the Court of First Instance (Fourth Chamber, extended composition) of 17 July 1998), the court observed that in order to determine whether the party is abusing legal proceeding there are two criteria, “the two cumulative criteria”:

1. The undertaking has taken the litigation step just to harass the opposite party and these criteria need to be manifestly unfounded;
2. The main plan of the undertaking is to eliminate the competition.

Conclusion 

By understanding various non-pricing practices under the Abuse of Dominance we observed the approach of the Commission, the EU and the UK in various circumstances. The main aim of Article 102 is to prevent the factors which can eliminate the effective competition structure in the market and foreclosure the ways of the consumer, the new entrants and existing competitors to access the market and other sources. Being dominant in the market is per se is not anti-competitive. However, abusing a dominant position in the market by hindering ways to consumer and competitor is anti-competitive. 

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

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This Article is written by Aman Garg, 2nd-year Law student pursuing B.A. LLB. at Gujarat National Law University.

Introduction

After almost 5 years when the Supreme Court recognized transgender as a third gender and more than a year after it decriminalized Section 377 of IPC, the President on Friday carried the legacy forward by signing the Transgender Persons (Protection of Rights) Bill, 2019. At the outset, the Bill seeks to make considerable progress to protect the rights of the Transgender Community by prohibiting discrimination against them with relation to education, employment, healthcare, access to government or private establishments, right to movement and so on. It acknowledges ‘Transgender’ as a distinct identity and further recognizes various offences against the community. Besides it also mandates for the establishment of National Council for Transgender Persons to look after the grievances of the Transgender people.

Despite these encouraging provisions, the transgender community has taken a vehement stand against the bill, with activists even calling it ‘draconian’ and ‘in violation of the Fundamental Rights’. This article reasons as to how the bill, instead of conferring rights to the transgender community, effectively legalizes the atrocities committed on them and continues to remain a sheer mockery.

Discrepancies in the definition of ‘Transgender’ 

Transgender are usually born with typical male or female anatomies but feel as though they’ve been introduced into the “incorrect body” as compared to Intersex people whose anatomy is not typically male or female as there is something ‘uncommon’ about their bodies. All Transgender people have an “internal encounter of gender identity” whereas only a limited number of intersex people experience these problems as the majority of them identify themselves as male or female rather than transgender or transsexual. The Bill, by including the Intersex community in the definition of Transgender, erroneously presumes that all persons with intersex variations identify themselves as transgenders. This is absolutely inappropriate as it dilutes the recognition and rights of the Intersex community.

Right to Self-determination

The Supreme Court in the landmark judgement NALSA v. Union of India (2014), held ‘Self-determination of gender to be an integral part of personal liberty under Article 21.’ Considering the above judgement, the Bill erodes the right of Self-determination as it requires transgender persons to obtain a “Certificate of Identification” from the district magistrate so as to be recognized as a Transgender and enjoy the rights of the bill and an updated certificate may be obtained only if the individual undergoes surgery to confirm their sexual orientation. These provisions are in direct violations of the principles laid down by the Supreme Court in NALSA judgement, that any requirement for SRS for declaring one’s gender is dishonourable and unconstitutional. Besides, these provisions are also antithetical to Global standards for legal gender identification, including United Nations agencies, the World Medical Association, and the World Professional Association for Transgender Health– that directs for severance of legal and medical procedures of gender identification for transgender people. Furthermore, if a transgender person is refused ‘Certificate of Identity’, the Bill does not dispense recourse for appeal or review of such decision. Thus in the name of granting rights to the community, they are being further exposed to institutional persecution dehumanizing their bodies and their identity.

Inconsistencies with Domestic Laws

The Indian Penal Code was amended in 2013 to recognise specific offences against women, including acid attacks, sexual harassment, voyeurism, stalking and disrobing. While transgender people frequently encounter such equivalent offences, and distinct abominations including coerced gender conventionalism, hormonal treatment and surgeries, stripping, etc., the Bill does not fully recognise the same and does not furnish for punishment commensurate with their gravity. In case of any ‘Sexual abuse against Transgenders,’ the Bill stipulates maximum punishment of only 2 years, as opposed to a minimum of 7 years for ‘Sexual offences against women’. While prescribing different punishments for the same offence based on gender identity, the Bill does not stand up to the test of ‘Equality’ and thus violates the constitution itself.

Civil rights and Social Security 

Taboo and social stigma have made Transgenders’ admission in education institutes almost prohibitive and have forced them to earn their livelihood through sex work, begging and dancing at events and thus it becomes crucial to provide them with education and employment opportunities. However, the bill is silent on granting opportunities of any kind to the community despite NALSA judgement directing the Govt. for affirmative action measure.
Although the bill promises “inclusive education and opportunities”, it does not provide any roadmap for the same and falters in recognizing early stages of a transgender’s life. Will the Govt. educate existing teachers to help them inculcate inclusive methods of teaching or will it create a distinctive post for Transgender educators in every educational institute? Will, there be a change in school and college curriculums to make it comprehensive about LGBTQ+ Rights or will there be scholarships to the community at all levels of education for more prominent access to education? 
Another contentious issue is that, even after a historical judgement of the Supreme Court striking down the sodomy law and upholding privacy and consensual same-sex relations of LGBT community, the bill does not talk about civil rights like marriages, adoption, Succession, inheritance of property etc. which are significant to Transgenders’ lives and reality.  Moreover, the bill unjustifiably neglects the atrocities and viciousness that transgender encounter within the family itself by debarring them from leaving the family and joining the trans- community, else be placed at a ‘rehabilitation centre’, which is a flagrant infringement of their fundamental right to be part of any association and reside in any part of the country. In fact, the word ‘rehabilitation’ is disempowering and patronizing as what transgender really need is recognition and housing assistance and not reclusion from society.

National Council for Transgender Persons

The Bill advances a ‘National Council for Transgender Person’ to advise the central govt. on legislation pertaining to the Transgender community, monitor such policies and review their impact on the community. With that being said, the proposed council is an unfettering joke on the aspirations for a responsible and accountable oversight body as it hordes a slew of 33 members with a limited representation of only 5 transgenders, leading to loss of democratic representation and engendering endless ‘confusion worse confounded’ among the numerous members. Further ambiguity pervades in the council as no guidelines are provided for redressing the grievances of the community. Will the council assist the transgender in approaching the court or is it empowered to punish the perpetrator independently? With the establishment of a National council and not State councils, the bill has also utterly disregarded ‘Geographical remoteness’ and ‘accessibility of resources’ as contributing factors in approaching the Council for redressing their grievances.

Conclusion

On one hand where the Courts are persistently endeavouring to uphold the rights of LGBTQ+ Community, on the contrary, the legislature is diluting the same by introducing bills incongruous to its very aspiration. It is high time the Govt. realize that laws should be in accordance with the landmark judgement of the Supreme Court on Transgender rights; else the community will continue to face problems ranging from social exclusion to discrimination and no progress would be achieved even after the enactment of the debilitating law.

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This article is written by Akella Poornima, a 2nd yr law student of LL.B 3 yrs, Symbiosis Law School, Pune. This article talks about the Mines Act in detail; its functionalities, workings, and scope in our country.

Introduction

India has a cultural history of contributing most of its economy through ‘Mining’. A country with 80 percent being produced by public sector companies and rest by private companies; legislation was needed to regulate and examine the scams or haphazard prevailing in the mining industry. Therefore, the Central Govt in 1952 and in 1957, simultaneously promulgated The Mines and Minerals (Development & Regulation) Act and The Mines Act. 

Aims, Objects, and Commencement

To understand the aims, objectives, and limitations of this Act, it is necessary to define what ‘Mines’ are called. Sec 2(i) of the Act defines ‘Mines’ as any kind of evacuations or extraction operated upon earth’s crust in order to obtain minerals.

Hence, the basic objective of the Act is to provide labour and safety of the mines as well as to amend and regulate the legislation for the betterment of labourers and workmen employed in it.

The regulatory framework of the mining industry is taken care of by both central and state governments. Generally, there are two types of minerals. One is called ‘Major minerals’ and another is called ‘Minor Minerals’. Policies are made in relation to the exploration, extraction, and process of all minor minerals (such as building stones, clay, and sand) by State Governments whereas, the federal government takes the charge of revision, fixing of royalty, issuing regulations, etc of major minerals.

‘The Ministry of Mines’, an apex body that is handled by the Government of India is responsible for legislation in regards to the mining sector, its policy formulation for proper functioning and administration of mines and minerals in the country. It is principally composed of four departments namely:

• The Geological Survey of India (GSI);
• The Indian Bureau of Mines;
• The Controller of Mining Leases; and
• The Directorate General of Mines Safety.

Exemptions

The said Act does not apply to any excavations or digging made for the purposes of prospecting and not for the purposes of extracting minerals. In lay-man words, the objective of extracting minerals is important to determine any activity under this Act. Also, minerals should be extracted for the purpose of commercial use or sale of it.  

Again, if the Central Government deems to see it fit to change or alter any of the class of the workers or the mines or the part of it or the ground in relation, it can do it with the passing of such change in a gazetted notification. 

References to time of day

“The references to the time of the day” in the Act is referred to as the Indian Standard Time, being five and a half hours ahead of Greenwich Mean Time. The Central Government holds the scope of doing any alterations in this regard. Also, the Central Government can set out rules for any part of the country where the Indian Standard Time is not ordinary observed. 

Inspectors and Certifying Surgeon

Chief Inspector and Inspectors

The Central Government can appoint any person it feels to see fit to be eligible for the post of ‘Chief Inspector of Mines’ for all the territories in the country to which the Act extends whereas any such person who has an interest in any mining activity or mining rights in India (either directly or indirectly) should not be made to have any such post of importance. 

Further, according to the Act, the District Magistrate can exercise the powers and perform the duties of an Inspector (exceptional to the general or special orders of the Central Government). 

Functions of Inspectors

The Chief Inspector can prohibit or restrict any Inspector/s from any powers conferred upon them under the said Act and can decide upon the local area/s within which Inspectors will be limited to exercise their respective powers. But, very much the Inspectors are required to give the information of the area under which their duty of work prevails;  to the owners, agents, and managers of mines. 

Powers of Inspectors of Mines

1. The Chief Inspector and/or Inspector/s can conduct examination or inquiry, whatever they feel to see fit; to ascertain different provisions of this Act for a proper understanding of what all are reasonable actions to be taken and which, do not impede or obstruct the working of any Mine. 
2. Inspectors can also examine and inquire about the state and condition; the ventilation of the Mine; the sufficiency of the bye-laws in relation; and all matters and things connected with the health, safety, and welfare of the persons employed in the mine.
3. Inspectors can also exercise all the powers prescribed by the Central government to them in this regard.
4. A case where an offence under this Act has been committed:

• A search of any such place and possession in relation; and
• to any register or other record appertaining to the mine etc.

can be done by the Chief Inspector or any Inspector. He may search or seize under this Act with a warrant issued legally.

Powers of the special officer to enter, measure, etc

The special officer might enter the mine and survey, level or measure the mine at anytime he feels important, but in such a case, he is obligated to give a minimum of three days’ notice to the Manager of such mine where he wishes to enter or introspect. Whereas, in case of any emergency arisen in the opinion of Chief Inspector or any Inspector related to the mine; an order in writing may authorize any person to enter into the Mine without giving any notice.

Facilities to be afforded to Inspectors

All reasonable facilities for entering, inspecting, surveying, measuring, examining or inquiring under this Act is required to be facilitated by every owner, agent and manager of the mine to the Chief Inspector or any Inspector.

Facilities to be provided for occupational health survey

The owner, agent or manager of the mine is required to afford all necessary facilities to such Inspector or officer such as:

• The examination and testing of plant and machinery;
• The collection of samples and other data related to the survey; and 
• The transport and examination of any person employed in the mine chosen for the survey etc.

Further, the total time spent by any person employed in any mine (who is working for examination in the safety and occupational health survey) should be counted towards his working time, also acknowledging any overtime he is working for, to be paid at the ordinary rate of wages. The “ordinary rate of wages” means the basic wages added to any dearness allowance, underground allowance, and compensation in cash.

The owner, agent or manager under his cost should make any person undergo a medical treatment who on examination is found medically unfit to discharge the duty of which he was discharged in a mine. 

In the case where after the medical treatment, a person is declared medically unfit to discharge a duty he was discharged in a mine, in such a case the owner, agent, and manager is required to provide such person with alternative employment in the mine for which he is medically fit. Such a medically unfit person will also be paid by the owner, agent, and manager; a disability allowance determined in accordance with the rates prescribed. In the case where such a person decides to leave his employment in the mine, he has to be paid by the owner, agent, and manager, a lump sum amount by way of disability compensation determined in accordance with the rates prescribed.

Secrecy of information obtained

All copies, extracts, registers or other relevant records of any mine, should be regarded as confidential and should not be disclosed to any person or authority unless the Chief Inspector or the Inspector considers such disclosure necessary. Also, any person functioning in contradiction in the course of his duty, shall be made liable to the punishment with imprisonment for a term extending to one year, or with fine, or with both (imprisonment and fine).

Also, only with the previous sanction of the Central Government, the court should proceed to any trial in this regard.

Certifying surgeons

The Central government appoints qualified medical practitioners to be certifying surgeons. The central government may also impose, a certifying surgeon authorizing him to exercise his powers.

Any person, who is an owner, an agent or a manager of the mine and who is directly or indirectly (interested in any business carried or in any patent or machinery connected or is in the employment of mine) will not be appointed or authorized to exercise the powers of a certifying surgeon.

Also, the certifying surgeon is mandated to carry out his duties regarding the examination and certification of adolescents, persons who are engaged in a mine in dangerous occupations, etc exercising the medical supervision for any mine where cases of illness have occurred or are likely to cause health injury. 

Committees

‘The Ministry of Labor and Employment’, under the Government of India, constitutes a committee to handle the powers and functions with respect to the said act. The committee constitutes of a chairman and its members who look after taking the decisions regarding various functionalities to the territory this act extends and most of the time its decision is considered final and binding. 

Functions of the Committee

1. A Committee should be constituted which will look after: 

• proposals, for making rules, regulations, and recommendations for the Central Government;
• enquiring into accidents or other matters which are referred to it by the Central Government and make reports upon; and
• hearing and deciding appeals or objections against notices or orders or the regulations, rules or bye-laws thereunder.

2. The Chief Inspector is not supposed to take part in the proceedings of the Committee regarding any appeal or objection against an order or notice made or issued by him or act in relation to any matter pertaining to such appeal or objection as a member of the Committee.

Powers, etc., of the Committees

A Committee is constituted should be exercise the powers of an Inspector for discharging its functions, have the same powers as are vested in a court under the Code of Civil Procedure, 1908 (5 of 1908) when trying a suit in respect of the following matters, namely:

• discovery and inspection;
• enforcing the attendance of any person and examining him on oath;
• compelling the production of documents; and
• such other matters as may be prescribed.

Recovering of Expenses

The Central Government can direct all the expenses of any inquiry conducted by a Committee constituted to be borne by the owner or agent of the mine concerned. The amount so directed is paid on application by the Chief Inspector or an Inspector to a magistrate having jurisdiction at the place where the mine is situated or where such owner or agent is for the time being resident.

Mining Operations and Management of Mines

Notice to be given of mining operations

The owner, agent or manager of a mine is required to give notice in writing containing particulars of the mine to the Chief Inspector, the controller, Indian Bureau of Mines and the District Magistrate in which the mine is situated, before the commencement of any mining operation. 

Such notice should reach the persons concerned for at least one month before the commencement of any mining operation.

Managers

Every Mine is required to have a sole manager who will have the prescribed qualification for holding a post of that importance and the owner or agent of every mine shall appoint a person having such qualification to be the manager. Further, the owner or agent may appoint himself also as manager if he possesses to have such prescribed qualifications.

The manager has to take responsibility and also, he can be held liable for the overall management, control, supervision and direction of the mine and all instructions when given by the owner or agent.

In case of an emergency, the owner or agent of a mine or anyone on his behalf shall not give, otherwise without the consent of the manager any kind of instructions affecting the fulfilment of his statutory duties, to a person, employed in a mine, who is responsible to the manager.

Duties and responsibilities of owners, agents, and man

For making financial and other provisions and for taking such other steps, the regulations, rules, bye-laws, and orders, etc to make the Managers, owners, and agents of such concerned mine are held responsible.

The responsibility of the matters in this regard is provided in the rules made which shall be exclusively carried out by the owner and agent of the mine and by such person (other than the manager) whom the owner or agent may appoint for securing compliance with the aforesaid provisions.

In carrying out any instructions given or otherwise given through the manager, if results in the contravention of the provisions of this Act or of the regulations, rules, bye-laws or orders made, every person giving such instructions will be obligated to be held liable for the contravention of the provisions concerned.

A person shall be deemed to be guilty of contravention when it is proved that he had used due diligence to secure compliance and had taken reasonable means to prevent such contravention.

If it appears on inquiry and investigation, that any such person is not prima facie liable, he must not have proceeded against any inquiry or investigation. 

There shall not be any defence in any proceedings brought against the owner or agent of a mine stating that the manager and other officials have been appointed in accordance with the provisions of this Act or that a person to carry the responsibility has been appointed.

Provisions as to Health and Safety

Drinking water

Effective arrangements should be there in every mine to provide and maintain good content and a sufficient supply of cool drinking water at suitable points for all persons employed there. For all persons employed below the ground, the Chief Inspector should, in lieu of drinking water, provide, maintain or permit suitable points for any other effective arrangements.

Also, all such points shall be legibly marked ‘Drinking Water’ in a language understood by a majority of the persons employed in the mine and no such drinking point shall be situated near any washing place, urinal or latrine.

The Central Government can make rules for securing compliance with the provisions of the supply and distribution of drinking water with respect to all mines or any class or description of mines.

Conservancy

There shall be a sufficient number of latrines and urinals provided separately for both males and females in every mine.

Further, all latrines and urinals provided should be adequately lit, ventilated and at all times maintained in a clean and sanitary condition.

The Central Government can specify the total number of latrines and urinals to be built in any mine with respect to the number of males and females employed in the mine. 

Medical appliances

First aid boxes should be provided in every mine to be readily accessible during all working hours. 

Every first-aid box has to be kept in charge of a responsible person, who is medically trained in the first-aid treatment of any kind of hurt which can cause in the course of employment and who will always be readily available during the working hours of the mine to treat such suffered workers.

Arrangements have to be done beforehand, for the conveyance to hospitals or dispensaries, of persons who while in employment in the mine, suffer any kind of bodily injury or become ill.

In every mine where more than one hundred and fifty persons are employed, a maintained first-aid room of such size with such equipment and in the charge of such medical and nursing staff as may be prescribed.

Powers of Inspector when causes of danger not expressly provided against exist or when the employment of persons is dangerous

1. The chief inspector or an inspector, by giving notice to the owner, agent or manager of the mine can state the particulars about the threat which he can foresee or defect he has discovered in any mine or part of it, in order to control, supervise, manage or direct the danger and can rectify the threat causing any kind of bodily injury. 
2. In the case where the owner, agent or manager fails to comply with the terms of notice, the Chief Inspector or the Inspector, through his writing, can prohibit the employment of any person for ensuring compliance in any manner in any mine. 
3. The Chief Inspector or the Inspector through his writing can also prohibit the extraction or reduction of pillars or blocks of minerals in any mine if he discovers the continuance of such work to be endangering the mine or the people employed there.
4. Every person who is prohibited from employment in such hazardous conditions is entitled to get paid with full wages as if they were in term with work they would have done otherwise and the payment should be done by the owner, agent, and manager of the mine or part of the mine.  Also, in such case, such manager, agent or the owner can provide the worker with alternative employment at the same wage allowance than paying full wages to such worker who has been prohibited to work. 
5. If the owner, agent or manager of the mine objects to a notice sent by the Chief Inspector or an order made by the Chief Inspector he may, within twenty days after the receipt of the notice containing the requisition or of the order or after the date of the decision on appeal, whatever the case be, can send his objection in writing stating the grounds there to the Central Government which shall, ordinarily within a period of two months from the date of receipt of the objection, refer the same to a Committee.
6. Also, Nothing with respect to the powers of Inspectors or Chief Inspectors will affect the powers of a Magistrate under section 144 of the Code of Criminal Procedure, 1898.

Power to prohibit employment in certain cases

In a situation, where any owner, agent or manager fails to comply with the provisions laid in this act in matters relating to safety; the Chief Inspector can give notice in writing stating the same to comply within the time limit he wishes to specify in the said notice.

Every person whose employment is prohibited is entitled to payment of full wages for the period for which he would have been, but for the prohibition, in employment, he couldn’t fulfil his course of work, and the owner, agent or manager shall be liable for payment of such full wages of that person. The owner, agent or manager instead of paying such full wages, can provide such person with alternative employment at the same wages with which such person was receiving in the employment which was prohibited.

Notice to be given of accidents

Whenever an accident occurs in a mine, causing loss of life or serious bodily injury, or an outbreak of fire or such similar rush of the cause, or an influx of inflammable or noxious gases, or a breakage of ropes, chains or other gear by which persons or materials are lowered or raised in a shaft or an incline, or an overwinding of cages or other means of conveyance or a premature collapse of any part of the working, or any other accident which may be prescribed in such case, the owner, agent or manager of the mine is obligated to give notice of the occurrence to such authority in a form and within desired time, and as well as he shall simultaneously post one copy of the notice on a special notice board in the prescribed manner at a place where it may be inspected by trade union officials, ensuring that the notice is kept on the board for not less than fourteen days from the date of such posting.

Power of Government to appoint a court of inquiry in cases of accidents

If in the opinion of the Central Government, a formal inquiry is needed into the causes and circumstances attending the accident ought to be held; an appointment of a competent person to hold such inquiry should be done and may also be appointed one or more persons possessing legal or special knowledge to act as assessor or assessors in holding the inquiry.

The person appointed to hold any such inquiry shall have all the powers of a civil court under the Code of Civil Procedure, 1908 (5 of 1908), for the purpose of enforcing the attendance of witnesses and compelling the production of documents and material objects.

Any person holding such inquiry may exercise the powers of an Inspector under this Act as he thinks it necessary or expedient to exercise for the purposes of the inquiry held.

The person holding an inquiry is supposed to make a report to the Central Government stating the causes of the accident and its circumstances and adding any observations which he or any of the assessors may think fit to make under their observation.

Notice of certain diseases

1. Where any person employed in mine contracts any disease notified by the Central Government as a disease connected with mining operations, the owner, agent or manager of the mine, in such case, are obligated to send a notice to the Chief Inspector and to such other authorities, in the desired form and within the desired time.
2. And If any medical practitioner attends on a person who is employed in a mine and who is or is believed by the medical practitioner to be suffering from any disease, the medical practitioner should without delay send a report in writing to the Chief Inspector stating:

• the name and address of the patient;
• the disease from which the patient is suffering or diagnosed, and
• the name and address of the mine in which the patient is or was last employed.

1. After this report has been sent, the Chief Inspector is required to pay the medical practitioner such fee as prescribed, and the fee so paid shall be recoverable as an arrear of land revenue from the owner, agent or manager of the mine in which the person contracted the disease.
2. Further, If any medical practitioner fails to comply with the provisions, he shall be punishable with fine which may extend to fifty rupees.

Power to direct investigation to cause of disease

The Central Government can appoint a competent person to inquire into and make a report of it on any case where a disease has been or is suspected to have been contacted in a mine, and may also appoint one or more persons possessing legal or special knowledge to act as assessors in such inquiry.

Publication of reports

The Central Government can cause any report submitted by a Committee or any report of extracts from any report submitted to it and will cause every report submitted by a Court of inquiry to be published at such time and in such manner as it may think fit.

Hours and Limitation of Employment

A weekly day of rest

A person is required not to work in any mine for more than six days in any given week.

Compensatory days of rest

A person employed in any mine who in the course of his duty, is deprived of any of the weekly days of rest, then in such circumstances, they will be allowed to rest for such extra work done, within a month or two months immediately following that month, as compensatory days of rest equal in number to the days of rest of which he has been deprived.

Hours of work above ground

1. Any person (above 18 years of age) who is employing in the above-ground in any mine, is not required as well as not allowed to work for more than forty-eight hours in any given week or for more than nine hours in any day provided.
2. To facilitate the change of shifts, or to enhance the production of work; the daily maximum hours specified may exceed.
3. The arrangement of work of any such person should be in a way that – 

• He/she gets ample time of leisure hours to take rest.
• For any such person, the working hours should not exclude more than 12 hours every day.
• He/she should not work for more than five hours continuously and in case of five or more hours of work being done, there has to be an interval given for the rest of at least half an hour.

1. Also, the Chief Inspector under this act can impose conditions to permit work to extend for long hours but it should not be for more than fourteen hours a day. 
2. Those who do two or more shifts should not be allowed to do the work of the same kind above ground at the same time.

Hours of work below ground

• No adult who is employed below ground in any mine will be allowed to work for more than forty-eight hours in any week or for more than eight hours in any day with a condition that the chief inspector may exceed the working hours, if he deems it fit, to facilitate the change of shift.
• Work shall not be carried on below ground in any mine except by a system of shifts, so arranged that the period of work for each shift is not spread-over more than the daily maximum hours.
• A person employed in a mine shall not be allowed to be present in any part of a mine below ground except during the periods of work shown in respect of him in the register maintained

Night shift

For those who work for night shifts which extend to midnight:

• a weekly day of rest is required for all such people who work at night shifts, which should not be not less than a period of twenty-four consecutive hours beginning when his shift ends.
• The following day for him after his work will be considered to be a period of twenty-four hours beginning from when such night shift ends, and the hours he has worked after midnight should be counted in the previous day.

Extra wages for overtime

Where in a mine, a person works above ground for more than nine hours in any day, or works below ground for more than eight hours in any day or works for more than forty-eight hours in any week whether above ground or below ground, he will in respect of such overtime work, be entitled to wages at the rate of twice his ordinary rate of wages, for the period of overtime work being calculated on a daily basis or weekly basis, whichever is more favourable to him.

Where any person employed in a mine is paid on piece-rate basis, the time-rate should be taken as equivalent to the daily average of his full-time earnings for the days on which he actually worked during the week immediately preceding the week in which overtime work has been done, exclusive of any overtime, and such time-rate shall be deemed to be the ordinary rate of wages of such person.

The Central Government can prescribe the registers to be maintained in a mine for securing compliance with the provisions of the Act.

Prohibition of employment of certain persons

If a person is already working in any other mine preceding twelve hours of his duty, then in such case he should not be allowed to work or required to work further.

Limitation of daily hours of work including overtime work

Any person employed in any mine should work or allowed to work in the mine for more than ten hours in any day inclusive of overtime.

Notices regarding hours of work

A notice in the desired manner in desired language should be posted outside the office of the mine stating about the time schedules of commencement and end of work each day, by the manager of every mine.

Where proposal is made for any alteration in the time schedules with respect to work hours or criteria of work hours to decide, an amended notice in the prescribed form is needed to be posted outside the office of the mine in not less than seven days before this change is made to be obliged by workers of that mine, and a copy of such notice is required to be sent to the Chief Inspector in not less than seven days before such change.

Further, no one should be allowed to work in a mine otherwise than in consonance with this notice.

Supervising staff

Further, these rules may not apply to any such persons who by rules be defined to be, persons holding positions of supervision/ management/ employed in a confidential capacity.

Exemption from provisions regarding employment

In case of an emergency condition involving a serious risk to the safety of the mine/ persons employed there/ accident/ act of God or in case of any urgent work to be done to machinery, plant or equipment of the mine etc; the manager can permit some persons to be employed on such work as per necessity, to protect the safety of the mine or of the persons employed there.

The manager may take a permitted action, (even though the production of the mineral would be incidentally affected if that action been carried off), to overcome some irregularities of any machinery, plant or equipment, to avoid serious interference with the ordinary working of the mine.

Power to make exempting rules

The central government can make rules defining the exemptions, in different circumstances and subject to different conditions:

• where an emergency threatening some serious risk to the safety of the mine or to the persons employed is foreseen there;
• where a work of some preparatory or complementary nature is carried for the purpose of avoiding serious interference;
• for persons who are engaged in urgent repairs; and
• for persons employed in technical works and who must carry it continuously.

Employment of persons below eighteen years of age

After the enactment of the Mines (Amendment) Act, 1983, the law obligated the persons below eighteen years of age to be allowed to work in any mine or part related to it.

Any apprentices and other trainees (who are not below sixteen years of age) can still be allowed to work but under proper supervision. In such a case, the prior approval of the Chief Inspector or an Inspector is required to be obtained before they are allowed to work.

Power to require a medical examination

1. When a person is employed in a mine,(who is not an apprentice or trainee), is not an adult (above 18 years) or when a person employed in a mine as an apprentice or trainee, is either below sixteen years of age or is no longer fit to work; the Inspector in such case can serve the manager of the mine, with a notice stating that such person should be examined by a certifying surgeon and that such person should, if the Inspector directs, be not employed or permitted to work in any mine until he has been certified that he is an adult. 
2. Every certificate granted by a certifying surgeon on a reference should be conclusive evidence of the matters referred here.

Prohibition of the presence of persons below eighteen years of age in a mine

Any person below eighteen years of age should not be allowed to be present in any part of a mine above ground where any operation connected with or incidental to any mining operation is being carried on.

Employment of women

No woman or female can be employed in any part of a mine which is below ground or above ground (except between the hours of 6 A.M. and 7 P.M.)

Also, every woman employed in any such mine working above ground is granted to be allowed an interval of eleven hours or even more, between the termination of employment on any one day and the commencement of the next period of employment.

Whereas, the Central Government can, vary the hours of employment of women working above the ground in any mine or class or description of mine. But the condition is that women should not be obligated to work from the hours between 10 P.M. to 5 A.M.

Register of persons employed

A prescribed form needs to be there for every mine as well as a place a registration for all persons employed where-

• the name of the employee is to be written along with the name of his/her father, her husband (if married), and such other particulars which are necessary for the purposes of identification;
• the age and sex of the employee who is going to work, the nature of his/her employment, and the date of commencement of his/her work has to be provided, 
• other particulars and the relevant entries authentication with signature or thumb impression of the person working.
• Also, no person will be employed in any mine until the above-mentioned particulars are recorded in the register.

Leave with Wages

Application of Chapter

No person should be deprived of any right in any mine to which he is entitled under any other law or under the terms of any award, agreement or contract of service.

Leave defined

Leaves should not include the following which is prescribed to all the workers:

• weekly days of rest provided to all workers; or
• holidays for festivals given to all employees; or
• Any other similar occasions whether occurring during or at either end of the period of leave.

The calendar year defined

A calendar year means a period of the year with twelve months, beginning with the first day of January every year.

Annual leave with wages

1. Every person who is employed in any mine and who has completed his one calendar year’s service will be said to be allowed, a leave with wages, calculated accordingly by, any person employed below the ground, at the rate of one day for every fifteen days of work performed by him or at the rate of one day for every twenty days of work performed by him, whatever is feasible.
2. Further, a calendar year’s service should get completed when:

• a person employing below the ground in any mine puts in attendances for not less than one hundred and ninety at the mine; or
• he has put in not less than two hundred and forty attendances at the mine during his course.
• Any person who has not taken the leaves entitled to him in that prescribed calendar will get it added to the number of leaves granted in the succeeding year. 
• Any person in need of leaves to get granted is required to write about it, in not less than fifteen days, before the date he wishes to have. Only, in cases of illness of any kind, such a person can avail leave before fifteen days of intimation. 
• In a case, where a person employed in a mine is terminated by the owner, agent or manager of the mine (before he has taken the entire leave to which he is entitled to), or when a person applied for a leave but has not been granted, or when he quits his employment before he has taken all the leave, in such a case, the owner, agent or manager of the mine is required to pay him the amount payable in respect to the leaves not taken. Also, payment in such a case shall be made before the expiry of the second working day after the termination, and where a person himself quits his employment, on or before the next payday.
• The unveiled leave of a person employed in a mine shall not be taken into consideration in computing the period of any notice required to be given before the termination of his employment.
• Where a person employed in a mine is discharged or dismissed from service or quits his employment or is superannuated or dies while in service, in such a case, he or his heirs or his nominee, shall be entitled to wages in lieu of leave due to him.

Payment in advance in certain cases

Any person employed in any mine who has been allowed to take leave for not less than four days is required to before his leave begins, be paid the wages due for the period of the leave allowed.

Mode of recovery of unpaid wages

The owner, agent or manager of any mine when is required to pay the wages or any such considerable amount but not paid, should be made recoverable as delayed wages under the provisions of the Payment of Wages Act, 1936.

Power to exempt mines

When the Central Government is satisfied that the leave rules applicable to persons employed in any mine provide benefits it may, by order in writing and subject to such conditions as may be specified therein, exempt the mine from all or any of the provisions.

Regulations, Rules, and Bye-laws

Power of Central Government to make regulations

The Central Government can make regulations and bye-laws:

• for appointment as Chief Inspector or Inspector regarding the duties and powers of the Chief Inspector and Inspectors;

• for the duties of owners, agents, and managers of mines.
• for facilitating the managers of mines and other persons acting under them;
• to grant and to renew their certificates of competency;
• for determining fees payment for examinations, granting and renewing certificates.
• to determine whether it is lawful to have one manager for more mines than one.
• for controlling misconduct/ incompetence on the part of any person holding a certificate and suspending/cancelling such certificate if necessary, 
• for regulating the provisions of the Indian Explosives Act, 1884.
• for prohibiting/ restricting/ regulating the employment of women in mines or on particular kinds of labour.
• for the safety of persons employed in a mine as well as for the safety of the roads and working places in mines. 
• for ventilation of the mines and precautions taken with respect to dust, fire, inflammable and noxious gases.
• regulating the provisions of the Indian Electricity Act, 1910.
• for proper lighting of mines and usage of safety lamps.
• against explosions/ ignitions of inflammable gas/ dust/ irruptions/ accumulations of water in mines.
• for owners, agents and managers of mines to have fixed boundaries for the mines. 
• for regulating the occurrence of accidents/ explosions/ ignitions in mines. 
• for protection from injury, when the workings are discontinued, and the property vested in the Government or any local authority or railway company as per the Indian Railways Act, 1890.

Power of Central Government to make rules

The Central Government can make rules like:

• filling vacancies of the members of a Committee and for proceeding in term of office for transacting its business.
• appointment, procedures, powers of Courts for inquiry, payment of travelling allowances to its members, and recovery of the expenses.
• maintaining mines where any women are employed and standards of such room, nature, and extent of the amenities provided there.
• standards of sanitation to maintain with latrines and urinal accommodation of good quality.
• supply and maintenance of medical appliances. 
• for prohibiting intoxicating drinks or drugs in a mine and the entry of such person. 
• for prohibiting the employment of persons who are not certified by a medical practitioner.
• for presenting themselves for medical examination. 
• for notices, returns, and reports in connection.
• for maintenance in mines, where more than fifty persons are employed.
• to have rescue stations for specified mines and for prescribing how and by whom such stations should be established.

Power to make regulations without previous publication

To prevent the apprehended danger and to provide a speedy remedy in the case which has suspected danger with it; the central government can make regulations in such a place to dispense with the delay which can result from such publication and reference.

Bye-laws

The owner, agent or manager of a mine should frame and submit to the Chief Inspector/ Inspector, a draft of bylaws or any such regulations or rules for the time being in force, stating the governance, the use of any particular machinery or the adoption of a particular method of working in the mine.

If within a period of two months from the date on which any drafted bye-laws or drafted amendments are sent to the owner, agent or manager, and the owner, agent or manager are unable to agree as to the terms of the bye-laws which are made, then the Chief Inspector/ Inspector should refer the draft bye-laws for settlement.

When these bye-laws are approved by the Central Government, it must be given effect as a concrete legislature, and the owner, agent or manager of the mine should keep a copy of that bye-laws, in English and in such other language as preferable. This copy must be secretly kept in some conspicuous place at or near the mine, where the bye-laws may be conveniently read or seen by the persons employed.

The Central Government can by order in writing make any bye-law, and such bye-law shall cease to have effect accordingly.

Laying of regulations, rules, and bye-laws before Parliament

Every regulation made, every rule made and every bye-law made should be laid before each House of Parliament, while the parliament is in session. 

Penalties and Procedure

Obstruction

Any person who is obstructed to do his duty is liable for punishment with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.

Also, any person who refuses to produce any registers or other documents, or prevents, is liable to be punishable with fine which may extend to three hundred rupees.

Falsification of records, etc.

Any person or persons:

• intentionally makes a false statement in any certificate/  any official copy, or
• counterfeits such false certificate, or
• produce/ use/ make any false declaration, statement or evidence or
• falsifies any plan, section, register or record such false register, or
• make/ give/ deliver any plan, return, notice, record or report containing a statement, entry or detail which is not true.

All such persons will be made liable for punishment with imprisonment for a term which may extend to three months, or with fine which may extend to one thousand rupees, or with both.

Use of false certificates of fitness 

Anyone who uses a certificate of fitness granted to self or allows it to be used by another person, intentionally, is punishable with imprisonment for a term which may extend to one month, or with fine which may extend to two hundred rupees, or with both.

Omission to furnish plans, etc.

Any person who omits any plan, section, return, notice, register, record or report required to be made without any reasonable excuse will be punishable with fine extending to one thousand rupees.

Contravention of provisions regarding employment of labour

When any person contravenes any provision/ regulation/ rule/  bye-law or any order made for prohibiting, restricting or regulating the employment will be made liable for punishment with imprisonment extending to three months, or with fine which may extend to one thousand rupees, or with both.

Penalty for the employment of persons below eighteen years of age

If a person is below eighteen years of age and is employed in a mine, the owner, agent or manager of such mine shall be punishable with fine which may extend to five hundred rupees.

Failure to appoint a manager

If any person fails to appoint a manager, such person shall be punishable with imprisonment for a term extending to three months, or with fine extending to two thousand and five hundred rupees, or with both.

Notice of accidents

When anyone fails to give notice of any accidental occurrence or to post a copy of the notice, it will be punishable with imprisonment for a term extending to three months, or with fine extending to five hundred rupees, or with both.

Owner, etc.to report to Chief Inspector in certain cases

Where the owner, agent or manager of a mine has taken proceedings against any person employed in a mine in respect of an offence, then he shall report this result to the Chief Inspector within twenty-one days from the date of the judgment or order of the court.

Special provision for contravention of certain regulations

Anyone who contravenes any provision of any regulation or of any bye-law or any order made will be punishable with imprisonment for a term extending to six months, or with fine extending to two thousand rupees, or with both.

Special provision for contravention of orders under Section 22

Anyone who continues to work a mine in contravention of any order issued will be made punishable with imprisonment for a term extending two years, and will also be liable to fine extending to five thousand rupees.

Special provision for contravention of law with dangerous results

Whoever contravenes any provision of this Act will be punishable:

• resulting in loss of life – with imprisonment extending to two years, or with fine extending to five thousand rupees, or with both;
• resulting in serious bodily injury –  with imprisonment extending to one year, or with fine extending to three thousand rupees, or with both; or
• causing injury or danger to persons employed in the mine – with imprisonment extending to three months, or with fine extending to one thousand rupees, or with both:
• Where a person who is convicted again with this condition, will be punishable with double the punishment.

Any court imposing or confirming in appeal, revision or a sentence of fine passed, while passing a judgment order, the whole or any part of the fine recovered has to be paid as compensation to the person injured and in the case of his death, to his legal representative.

General provision for disobedience of orders

Anyone who contravenes any provision of this Act or regulation or rule or bye-law or any order, made for the contravention of which no penalty is provided, shall be punishable with imprisonment for a term extending to three months, or with fine extending to one thousand rupees, or with both.

Prosecution of the owner, agent or manager

A prosecution shall not be instituted against any owner, agent or manager for any offence under this Act except when the Chief Inspector or of the district magistrate or of an Inspector authorized in this behalf, states to do so, by general or special order in writing.

Determination of the owner in certain cases

Where the owner of a mine is a firm/other association of individuals or is a company/ a Government or any local authority then, to manage the affairs of the mine, some may be prosecuted and punished under this Act for any offence for which the owner of a mine is punishable.

Exemption of owner, agent or manager from liability in certain cases

When the owner, agent or manager of a mine, is accused of an offence alleging that another person is the actual offender, in that case, he will be entitled to get a prosecutor in not less than three clear days to have that other person brought before the court on the date appointed for the hearing of the case.

Power of court to make orders

Where the owner, agent or manager of a mine is convicted of an offence, the court may, in addition to awarding him any punishment, require him within a period specified in the order to take such measures specified for remedying the matters in respect of which the offence was committed.

Where an order is made, the owner, agent or manager of the mine, will not be liable in respect of the continuance of the offence during the period, if any, but on the expiry of such period, if the order of the court has not been fully complied with; all such owners, agents or managers will be deemed to have committed a further offence and will be held punishable with imprisonment for a term extending to six months, or with fine extending to one hundred rupees, or with both.

Limitation of prosecutions

No Court can take cognizance of any crime or offence unless the complaint has been made:

• within six months from the time the offence is alleged to have been committed or have known of such commission, or
• in the case where the accused is a public servant and had the previous sanction of the Central Government or the State Government in taking cognizance of an offence under any law, within three months from the date on which such sanction is received by the Chief Inspector, or
• in the case where a Court of inquiry has been appointed by the Central Government, within one year after the date of the publication of the report referred.

Cognizance of offences

No courts inferior than a Metropolitan Magistrate or a Judicial Magistrate of the first class can try any offense which is alleged to have been committed by any owner, agent or manager of a mine or any offence made punishable with imprisonment.

References to Committee in lieu of prosecution in certain cases

If the Court opines that the matter which is instituted should be referred to a committee in lieu of prosecution, it can report such matter with the central Government under such observation. 

On the other hand, the Central Government can refer such case to any Committee it deems to see fit or may direct the Court to proceed with the trial.

Miscellaneous

The decision to the question of whether a mine is under this Act

The Central Government can decide the question and a certificate in this regard signed by a Secretary of Central Government if any question arises on whether to excavate or work on any part of a mine. 

Power to exempt from the operation of the Act, regulations, etc.

The Central Government can either exempt absolutely or conditionally, from the operation of all or any provisions of this act upon a part of or of mine. 

Power to alter or rescind orders

The Central Government can reverse or modify any order passed herein this matter with respect to this act. 

Application of Act to mines belonging to Government

This Act will also apply to mines which belong to the Government.

Persons required to give notice, etc., legally bound to do so

Every person is obligated to give a notice or to furnish any information to any authority which he is legally bound to do, within the meaning of Section 176 of the Indian Penal Code, 1860.

The signing of returns, notices, etc.

All returns and notices are required to be furnished or communicated on behalf of the owner of a mine about any regulation, rule, bye-law or any order made to whom power in this behalf has been delegated by the owner by a power of attorney.

No fee or charge to be realized for facilities and conveniences

No fee or charge should be taken from any person who is employed in a mine in respect of any protective arrangements or who facilities to provide any equipment or appliances.

Application of certain provisions of Act 63 of 1948 to mines

The Central Government can direct to specify in notification applying to all mines about exceptions and restrictions in Chapters III and IV of the Factories Act, 1948.

Protection of action taken in good faith

No suit, prosecution or other legal proceedings whatever, should lie against any person for anything done in good faith or intended to be done under this Act.

Conclusion

The Mines Act, 1957 has been commenced to look after the prospective employment in the mines sector as well as the safety and progress of workers related to mines. The act limits the unnecessary and manipulated labour ship among the poor classes of the society, also giving them the desired platform to be heard in case of injustice. Hence, the legislation of such exhaustive form is necessary for upbringing the economy of the country as well as to reform the less facilitated people. 

References

• https://labour.gov.in/sites/default/files/Committee%20under%20Section%2012%20of%20the%20Mines%20Act_0.pdf
• https://www.bing.com/search?q=%2B%5B%22The+minerals+extracted+are+classified+into+-+Major+and+Minor%22%5D&qs=n&form=QBLH&sp=-1&pq=%2B%5B%22The+minerals+extracted+are+classified+into+-+Major+and+Minor%22%5D&sc=8-5&sk=&cc=en&adlt=off&cvid=9C496CAA032EC7A40C84532C32C9E536
• https://pib.gov.in/newsite/PrintRelease.aspx?relid=68801
• https://indiacode.nic.in/show-data?actid=AC_CEN_15_16_00011_195235_1517807328486&sectionId=14275&sectionno=47&orderno=49
• https://paycheck.in/career-tips/women-paycheck/women-legislation/mines-act-1952

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This article is written by Nishtha Pandey (batch 2023) student of Dr.Ram Manohar Lohiya National Law University, Lucknow. This article seeks to present a holistic view of the public offences that are against public tranquillity.

“It is the responsibility of the government to make it easy for people to do good and difficult for the people to do evil” – William Gladstone

Introduction

Peace and tranquillity are the prerequisites for development in society. If there is disorderliness in society or any other hindrance of like nature, the society cannot provide to the individual, the opportunity to grow and develop to their full potential, hence the maintenance of peace and tranquillity is a must for every society and nation as a whole.

Offences against the public tranquillity are the offences against not only a single person or property but against the society at large. These kinds of offences are committed by the group of people sharing a common intention to disturb the peace and tranquillity of an area thus affecting the whole society. It is important to study these offences so that they could be curbed.

Maintenance of Public Peace

Peace and morality are the basis on which the base of a society is held, hence their protection is of prime importance, otherwise, the very foundation of the society would be endangered, which will, in turn, hinder the progress of the individuals.

It is the duty of the state to maintain public peace and order. It is even present in Section 34 of the Police Act, 1861 to maintain order in the public roads and public places. In fact, it is an offence to cause inconvenience, obstruction, annoyance, risk danger or damage to the public order or peace and further Section 23 of the Police Act, 1861 makes the police responsible for maintaining public tranquillity and punish anyone committing an offence. Hence public order means that the actions of the individual should not impinge the public peace or cause any kind of inconvenience to any other person.

Public Offences

Under IPC chapter eight deals with public offences. These offences could be categorized into four:

• Unlawful assembly;
• Rioting;
• Enmity amongst different classes;
• Affray.

Furthermore, Chapter X of the Criminal Procedure Code 1973 gives legal guidelines for the maintenance of public peace and order and also delineates duties, responsibilities, functions, and power of the Executive and the Police in this matter.

Unlawful Assembly 

Section 141 of the IPC, 1860 deals with the unlawful assembly. Article 19(1)(B) of the Indian Constitution,1950 confers a fundamental right to assemble peacefully however this section seeks to criminalize an unlawful assembly.

Definition 

Assembly of 5 or more people to commit an unlawful offence is called an unlawful assembly. An important aspect of an unlawful assembly is the presence of a common intention to disturb public peace and tranquillity. The mere presence of a person in an assembly without any motive to infringe the peace in the surrounding is not punishable. The common objective is to determine the aim and nature of the assembly. It is also possible that lawful assembly turns out to be an unlawful assembly.

Object 

• To use criminal force against any public servant, state or central government.
• To resist any legal proceeding.
• To commit any mischief or trespass on any property or person.
• To use criminal force against any person to deprive him of the enjoyment of any right.
• To use criminal force against a person and compelling him to do something which he is legally not bound to do.

Ingredients 

For unlawful assembly, several ingredients need to be present for making anyone liable for the punishment defined for unlawful assembly under the provisions of IPC.

Five or More Persons 

Unlawful assembly should consist of persons more than 5. If the number of people in a group is less than 5 then it will render this section inapplicable. It is also possible that the number of persons in an unlawful assembly may drop down to 5 after the commission of the crime, in this scenario too this Section would not apply, but Section 149, of the given Act (Subran Subramaniyam vs the State of Kerala) which levies vicarious liability on the person, would be applicable.

If in an unlawful assembly 3 persons are acquitted and the rest could not be identified or are unmanned but the court is certain about the presence of other people in the group making the number to 5 or more than that, then, in that case, the section of the unlawful assembly would be applied.

In the case of Ram Bilas Singh vs the State of Bihar, the Supreme Court has delineated certain situations where even the number of persons in an unlawful assembly becomes less than 5, then also conviction could take place.

• Evidence must be given that other than the person convicted, there are other people who are involved at a given point of time.
• Evidence to show the presence of other unidentified persons that are part of the unlawful assembly.
• The first information report must reflect such to be the case even if there is no such charge formed at that given point of time.

They must have a Common Object 

The term “object” refers to design or purpose, and for it to be “common” the person must share and abide by it. The members of an unlawful assembly must have a common object to commit a particular offence. Unlike common intention here prior meeting of minds is not important, the common object could be constructed on the spot. Common object leaves scope for the likelihood of events. Here the persons could also have an assumption that certain events “might happen” or are “likely to happen”. 

The presence of common objects could be shown by way of facts and circumstances because the direct evidence of it is not possible. 

Section 149 of the IPC, 1860 deals with the common object. The word ‘knew’ is used in the second part of this Section, which means more than a “possibility” but less than “might have known”. Hence any offence so committed by any member of the unlawful assembly is assumed that all the member must have known at least the possibility of that act. This section further implies that any offence committed in the prosecution of the common object is immediately connected to a common object held by all the members of the unlawful assembly. 

Object Must be one of Those Specified in Section 141 

The common object possessed by the members of the unlawful assembly could be varied and could be adjudged by appraising the facts and circumstances, however, the common object needs to be the one already ascertained under section 141 of IPC, 1860.

In the case of Moti Das vs the State of Bihar, it is possible that the assembly started as being lawful but later turned out to be unlawful. The following are the objects present under Section 141 of the IPC, 1860:

Overawing the Central or a State Government or its Officer

The person is said to be overawed by another when he takes him to fear due to superior force or use of power. However mere overawe is not sufficient to attract the provisions of this section, the use of criminal force is very important. The person must use some criminal force against the other party so that he is overpowered by the threat or fear so that he is unable to continue his legally assigned work or does something which he wouldn’t have done otherwise. The unlawful assembly should also have the common object to instil overawe in the minds of the people. 

The force should be used against the state or central machinery or any of the officers working on their behalf. It is essential to note that the officer must be carrying out the responsibility given to him when the criminal force is applied otherwise this section won’t be applicable.

Resist any legal proceedings

The legal process means any proceedings which have the legal mandate to be executed. Hence if any unlawful assembly act as a hindrance in the execution of the unlawful assembly then it would be considered unlawful. 

It is important to note that if the proceeding or process is not legal and if that is hindered then that would not be considered as resistance under this section and hence not punishable.

For example- if an arrest is made without any legal warrant for the same, and if that arrest is resisted by any assembly of 5 people then that would not attract the provisions of this Section.

Commission of Mischief, Criminal Trespass or Any Other Offence.

Mischief and Criminal trespass are defined under Section 425 and 441 of the IPC, and offence here means anything which is punishable under any special law or any local law. 

Hence, any assembly which does not commit any of these offences then it cannot be termed as unlawful assembly.

Forcible Possession and Dispossession 

Any person cannot be asked to give up his possession of anything due to criminal force, but if the act is lawful and the person is legally bound to dispossess himself of that good, then this section would not be applicable. If the right on the property is not certain and if force is used to resist its dispossession then that assembly of more than 5 people that are involved would be considered as unlawful assembly.

Obtaining the right to possession

Incorporeal rights mean the right to use any property, as the use of well or water, etc. If by the use of criminal force any assembly of 5 people deprives the person of such use of the property then it can be a ground for punishment under this section.

Right to procession

The procession is an assembly in motion. The assembly is static. The procession, instead of a room, the procession takes place on the roads. This is a fundamental right granted to the citizens under Article 19 of the Indian Constitution. However one of the restrictions on this right is that the road should be available for the passer-by too, and not only for the processionists. One of the important conditions on the procession is that it should be peaceful, otherwise it could be legally disbanded by police action. 

Sections of unlawful assembly are also applicable to processions. Hence of the processions are undertaken by a group of 5 or more people with an unlawful intention shared by all the members of the procession could be termed as unlawful assembly and therefore the member of this procession would be liable for punishment meant for unlawful assembly.

For Example, a group of 8 people went on the road with an intention to burn the police station, then this procession would be an unlawful assembly and could be punished as well.

Enforcing a ‘Supposed’ Right 

Supposed rights mean that the person does not have any right over the subject in question. Under this Section “defending one’s right” is not punishable. It is fine to be armed for the protection of the right which the person already possess i.e. to maintain one’s right. 

For Example, a person can use arms to protect his property which he lawfully owns.

This Section punishes the enforcement of a right or supposed right by way of a criminal act which makes an assembly liable for punishment. 

When Right to private defence is exceeded

If any act is done in furtherance to protect any property of self or any other individual, then it is not an offence. In fact, such an act would not come under the “protection of the right or supposed” and would be immune from any punishment. This would not come under Section 144 or Section 149 of the IPC, 1860.

However, if the offence is committed which exceeds the ambit of private defence then such an act would make the perpetrator liable for punishment. All the other members of the unlawful assembly would be liable if constructive liability is to be construed.

Illegal Compulsion 

Under this Section, a person or any group is compelled by an assembly of 5 or more people not do an act which he is legally bound to do or to do something which would have not done under the legal constraints.

The assembly initially could be lawful and can later turn out to be unlawful. 

Example- an assembly formed for carrying out the work of a collection of donation for the construction of tank in the society, but later engaged in assaulting some other group which did the same work in other society.

Test When There is a Group or Communal Clash 

In case of communal violence, if people indulge in some unlawful activities then they could be booked under the provisions of Unlawful Assembly.

For Example- if in a town, people of different communities pelted stones at each other to protest a judgment taken by the Supreme Court. The police, in this case, is authorized to disperse them under Section 129 of the IPC, 1860 and they could be booked under the provisions of unlawful assembly. In case, however, if the people wouldn’t have pelted stones then they couldn’t be liable for the punishment under unlawful assembly.

Constructive Liability When Free Fight Occurs 

Section 149 of the Act, makes the member of an unlawful assembly constructively liable for the act done by any member of the unlawful assembly, however, it is to be noted that the act done by the member should be in pursuance of the common objective, otherwise other members of the assembly, who have not committed the offence could not be held liable.

In the case of Gajanand vs State of UP, free fight is referred to as when two people went on to fight with each other and it was predetermined. In this, it is immaterial whether the person has attacked or defended, but what matters is the tactic that is used by the parties involved.

Supreme Court has made it clear in the case of Puran vs the State of Rajasthan that for free fights constructive liability present under section 149 of the IPC, 1860 cannot be invoked because the fact which is considered is the injury that is caused to the other party by the person who was involved in the fight, hence other members of the assembly would not be held liable for the offence of free fights.

Common Object and Common Intention: Distinction and Differences 

Effect of Omission to Charge Accused When Charge Using Section 149 Fails 

There is a substantial difference between Section 34 and Section 149, of this Act, however, still, they overlap to some extent, and this overlapping is to be determined on a case to case basis, as it varies according to the facts.

If the common object which is material to the charge under Section 149 does not necessarily involve a common intention, then the substitution of Section 34 for Section 149 might be detrimental to the interest of the convict and hence should not be allowed. However, if the facts to be proved and the evidence to be adduced with reference to the charge under Section 149 would be the same if the charge were under Section 34, then the failure to charge the accused under Section 34 could not result in prejudice to the interest of the party and in such cases, the substitution of Section 34 for Section 149 must be held to be a formal matter. (Karnail Singh and another, vs. The State of Punjab).

For section 149 to be applicable, the presence of five or more people is necessary, but if the assembly of five or more people could not be ascertained, then in that case, joint liability could be imposed under section 34. Under this section, the act should be done in furtherance of the common “intention”. Moreover, if no joint liability could be established then each person could be held liable in his individual capacity.

Hence even if the charge fails under Section 149, still other provisions could be applied to ascertain the liability of the accused.

Test for Common Object

To test whether the unlawful assembly had a common object or not, it is not necessary for the parties to have actually met and conspired, but such intention could be inferred from the facts and circumstances of the case. A combined attack by all the five members of an unlawful assembly is enough to prove the common intention.

To show a common object, circumstances of the case, the attitude of the person involved furnish the key to their mental bent. Any person who encourages or takes part in such activities either by signs or gestures, or even wear a badge or sign is said to be a member of that unlawful assembly and is sufficient to gauge that he has a shared object for the offence so committed. On the other hand, a mere presence without any sort of encouragement is not the proof of criminality.

To test the common object at the starting, it wouldn’t be legitimate, to take into account the actual act committed by the person at a later stage, and to infer that such activities were part of the common object of the entire assembly.

Moreover, once all the ingredients of Section 141 are met, it won’t be enough for the person to put forward the argument that he did nothing with his own hands. The person would still be liable for punishment.

Separate Charge Under Section 147 or 148, Indian Penal code 1860, not Essential When Charge Under Section 149 Exist.

The fallacy in the cases which hold that a charge under Section 147 of IPC, 1860 is necessary arises because they ignore that the ingredients of Section 143 of the Act are already implied in Section 147 and the ingredients of Section 147 are implicit when a charge under Section 149 is included. An examination of Section 141 shows that the common object which renders an assembly unlawful may involve the use or show of criminal force, the commission of mischief or criminal trespass or other offences, or resistance to the execution of any law or of any legal process. Offences under Section 143 and Section 147, ought to always be present when the charge is laid for an offence like murder with the aid of Section 149, but the other two charges need not be framed separately unless it is sought to secure a conviction under them. It is thus that Section 143 is not used when the charge is under Section 147  or Section 148, of the Act and Section 147  is not used when the charge is under Section 148. Section 147 may be dispensed with when the charge is under Section 149 read with an offence under IPC. (Mahadev Sharma vs the State of Bihar)”. 

On Nature of Proof of Common Object in Group or Communal Clashes 

Communal clashes could be considered a small part of mammoth rioting. In these cases, the court finds it very difficult to ascertain the common object. Moreover, due to a large number of people, it is very difficult to assign the act done by each individual and punish them accordingly. 

The common object could be furnished from the fact of the case. If the crime is committed by the entire assembly in a concerted fashion, in that case, the entire assembly would be held liable as common intention could be construed from the acts of the people.

In such cases, the role of an eye witness is very crucial, as he would give instances of what happened at the crime scene. But care should be taken and should not be relied on a single eyewitness. The perpetrators of the crime should be carefully distinguished from the spectators and wayfarers.

Other Connected Provisions 

There are various provisions which come under the umbrella provision of Unlawful Assembly.

Being a Member of Unlawful Assembly—Contents and Punishment 

This provision is present under Section 142 of the IPC, 1860 when a person joins any assembly with full knowledge of the fact that in the assembly certain elements which are not lawful and still joins it or continues (physical presence) to be part of it, then that person is said to be a member of an unlawful assembly.

Mere presence in an unlawful assembly does not mean that the person is its member. He should have a common objective to disturb public peace. If the person detaches itself from the assembly after knowing of its unlawfulness then that person is no longer a member of that assembly as he lacks a common intention which is very important. Moreover, if the common objective does not execute properly due to some weakness then too it shall be considered as an unlawful assembly. 

Under Section 143 of the IPC, 1860 the person being a member of an unlawful assembly is liable for punishment for up to 6 months or fine or both.

Ingredients of membership of an unlawful assembly

According to Section 142, which deals with the membership of an unlawful assembly, the following are the essential ingredients :

• A person should be aware of the unlawful elements of the assembly.
• A person should possess an intention to join that unlawful assembly. Any sort of coercion to become a part of the assembly, will not render the person to be a part of the unlawful assembly.
• A person is a part of the assembly, which later turns out to be an unlawful assembly and still continues to be a part of the assembly by consent which could be either express or implied.

Joining an Unlawful Assembly Armed with Deadly Weapon 

This comes under Section 144, of the Act which could be seen as an extension of Section 143. Under this Section (144) a person who joins an unlawful assembly with deadly or dangerous arms would be punished for 2 years or fine or both.

Under this Section, a person who is although not carrying a deadly weapon, but is a part of an unlawful assembly will still be liable to be punished.

Ingredients 

• Joining assembly with a deadly weapon.
• The weapon could be anything that has the potential to cause death.

The definition of deadly weapon varies upon the facts of the case. Any small object which could take someone’s life could also be termed as a deadly weapon.

Rendering Aid in Unlawful Assembly 

Section 150,157 and 158 of the Act, makes rendering aid in an unlawful assembly, liable for punishment. 

Section 150 basically deals with the perpetrator and the originators of the crime. This Section is created with the objective to punish the persons who are the mind behind the crime that is committed. The person who connive or hire the people that actually indulge in the commission of the crime. The law seeks to treat these persons at par with the persons who have actually committed the offence. Thus this section does not deal with the abetment or participation in the crime, but goes at the initial level of the planning the crime and hiring people to do such criminal acts.

Section 157 ensures the conviction of the person who-

• Assembles or harbours people in a house or any other premises.
• The house or premise must be under the person so accused.
• The objective of such assembly, hiring or employment is to be a part of an unlawful assembly.
• The person who is convicted for the acts mentioned above must know about these facts.

Section 158 of the IPC convicts a person who employs or hires himself to be part of the unlawful assembly and hence assists it.

Rioting 

Section 146 and 147 under IPC deal with rioting. It usually takes place as a way to dissent something or for a perceived threat or grievance.

Definition

When an offence is committed by a group of people or any person belonging to that group, is termed as rioting. For rioting the presence of at least 5 people is necessary. This offence is generally grounded in civil unrest and is usually sudden and provocative behaviour. It shows a herd-like mentality and this is the reason that in case if a person belonging to the guilty group has not committed a violent act, even then he/she will be liable for rioting.

One of the most important ingredients is to constitute rioting is a common intention and object of committing a crime. This very “common intention” makes all the people in the group liable to be punished even when they haven’t even committed the crime themselves in rioting.

Historically rioting used to take place due to grievances against the government policies, outcome of a sporting event, frustration against any legal judgement, taxation, oppression, conflicts amongst races or was a way to channelise the suppression faced by the people to the government.

Punishment for rioting is present under section 148 of the IPC and is a description of a term of 3 years or fine or both. This offence is cognizable and could be tried by the first class magistrate.

Punishment for Committing Riot with Deadly Weapon 

This is covered under Section 148 of the IPC. This section demands the same ingredients as that of rioting but with the addition of a deadly weapon. 

The weapon could be anything that is so dangerous that it can cause the death of a person. The punishment for this is imprisonment for up to 3 years, which shall depend on the impact of rioting or fine or both.

Punishment for Provoking Riot

This offence is present under Section 153 of IPC, 1860. Here, if the person with a malign intention to provoke someone knowing completely that, this provocation could lead to rioting, then that person would be booked under Section 153 of the IPC. The person provoking riot has a malign intention and acts wantonly. Under this Section, there is no need for rioting to actually take place, but only the mere provocation is enough to be liable for punishment under this Section.

However the punishment would differ based on the consequences of this provocation, if rioting took place then the punishment would be for a maximum of 1 year or fine or both and if rioting does not take place then the maximum imprisonment could be up to 6 months or fine or both.

Liability of a Person for Whose Benefit Riot is Committed

This offence is covered under Section 155 of the IPC, 1860. In this if a riot took on behalf of any person, or if that person takes some benefit from the riot so committed, that person is liable to be booked under section 155 of the IPC. Moreover, if the person himself or his agent or manager knew that riots of this nature is about or likely to take place and he or his agent or manager has not taken any lawful steps to suppress or undermine the effect of the riot then also the person is to be punished.

The main objective of this Section is to bring persons with mala fide intention under the law and to prosecute them accordingly.

Liability of a Person for Obstructing Suppression of Riot

Section 152 of the IPC,1860 deals with this offence. Here if a person assaults or attempts to assault any public servant dedicated to suppressing any unlawful activity like a riot, affray or unlawful assembly, etc, then that person shall be prosecuted under this Section. 

This Section seeks to bring under the books any person who interferes or disturbs the mechanism built for maintaining peace and tranquillity in the society. 

The punishment under this Section is up to 3 years or fine or both.

Belonging to an Assembly of Five or More Persons When Order to Disperse

Rioting is same as an unlawful assembly with a minor difference which constitutes the use of force, hence like in the case of unlawful assembly, in this too the presence of 5 or more people is necessary. The presence of more people distinguishes it from affray in which no such mandate of the presence of more than 2 people.

Difference between Riot and Unlawful Assembly

• Rioting = Unlawful Assembly + Violence

Rioting is the same as an unlawful assembly with the addition of violence

• For example- Group A constructed a building. Group B, which was 10 in number attacked group A and demolished the building.

Forming a group to demolish a building is an unlawful assembly.

Coming and demolishing the building in a group is rioting.

Affray

Section 159 and 160 of the IPC,1860 deals with affray and its punishment.

Definition

Affray refers to fighting in the public so that it disturbs the public order and peace. For affray to take place the presence of two or more persons is a must and their action should negatively affect the tranquillity of their surroundings. However, most importantly the effect of their behaviour should create disorder in society and for the people.

For example, if one person comes and slaps another person, that would not be counted as an affray, but if that act threatens the public peace then this act would amount to affray. 

Based on the impact of their behaviour the guilty could also be convicted under unlawful assembly or rioting. The punishment usually depends upon the impact that their behaviour creates in the society or the level of threat they pose.

It is important to note that it is not necessary that any offence committed in public is affray, only the offence that has the potential to cause a disturbance in the public tranquillity could be termed as affray (Sunil Kumar Mohamed Alias Mahakhuda Vs.the State of Orissa)

Punishment for affray could be one month of imprisonment or fine of Rs 100 or both.

Comparison between fray, Assault, and Riot

Affray – It is a group crime and poses a threat to the disturbance of public peace and tranquillity. Here minimum two-person must be present and their actions must instil terror in the mind of the public.

For example, In a fair, A comes and slaps B, and the people standing nearby are threatened by such action.

Riot- It also disturbs the tranquillity and peace prevalent in the society, but unlike affray, it shows a herd mentality where the offence is committed by a group or a person thereof

For example, A along with his group consisting of 8 people, went and slapped B in a Fair.

Assault- Unlike the other two, this offence is against an individual and does not threaten the public peace and tranquillity. This offence is against one person and property 

For example, A went to B’s house and during an argument slapped B.

Promoting Enmity between Classes

This category of public offence comes under Section 153A and 153B of the IPC.

Definition

This Section makes the promotion of enmity between different groups on grounds of Religion, Race, Place of birth, Residents, Language, etc punishable. The jurisdiction of this Section is very wide and also includes offence on moral corruption.

The punishment under this Section is maximum imprisonment of 3 years or fine or both. However, if the above-mentioned offence is committed inside a religious institute then the punishment would exceed up to 5 years and could be liable for fine as well.

Constitutional Validity of Section 153A

This Section is challenged on the ground that it violated freedom of speech and expression enshrined under Article 19(1)(A) of the Indian Constitution. This Section puts a restriction on the speech or acts which could potentially encourage discord among various groups and classes. 

However, the court of law has time and again upheld the validity of this Section, as it comes under the purview of public order and to some extent under the sovereignty and security of the nation under the reasonable restrictions. The scope of public order has grown leaps and bounds over the years.

In the case of the State of Uttar Pradesh vs Lalai Singh Yadav, the court has upheld the provision of ordered security, which gives precedence to the state if their intent is to protect public order.

Essential Ingredients of Section 153A

• Promotion of enmity between different groups of religion, race, caste, residence, place of birth, community or any other group.
• Acts that disturb the public tranquillity and encourages discords between different groups or castes or communities.
• Acts or objects that cause fear or alarm or threat or insecurity for any religious, racial, language or regional group or caste or community by the use of criminal force or any sort of violence against them.
• Mens Rea is an important element to hold a person liable for punishment under this Section (Bilal Ahmad Kalo vs State of Andhra Pradesh).
• The presence of two communities is important to attract this provision. Mere derogation of the feelings of one community without any reference to any other community is not considered under this Section. (Bilal Ahmad Kalo vs State of Andhra Pradesh).

Scope of Section 153A

In the case of Gopal Vinayak Godse vs Union of India, Bombay High Court decided the scope of Section 153A of the IPC. It held that-

• It is not necessary that enmity or hatred actually arose between different classes, because of certain acts or objects.
• The matter which comes under the purview of Section 153A of the IPC, should be considered a whole and not some stray or isolated parts or portions.
• It is necessary to consider the class for which the act or the object, meant to promote enmity is subjected to. The current dynamics between the classes so taken should also be taken into account.
• Truth is no defence under Section 153A. In fact, the greater the truth, the greater the impact on the mind on the minds of the people, the act or object was subjected to.

SECTION 153B

This section was added to contain the rising disharmony amongst various communities. This was added in the year 1972, in which there was a high level of tension amongst various castes and this was affecting not only the social harmony prevalent in the society but was also affecting the national integrity of the country.

• Publishes an imputation that certain person who belongs to a particular class, religion or caste cannot bear allegiance to the national integrity.
• A certain group of people belonging to particular castes or community are bereaved of their right to citizenship.
• Any of the aforementioned act must perpetuate discord and harmony amongst different classes of people.

Proposals for Reform

The law commission of India has circulated a questionnaire covering various aspects of public order. Only 12% of the respondents were satisfied with the current management of public offences in our country. 5% were satisfied only to some extent while 79% were highly dissatisfied, and the major reasons being-

• External influence in public order management.
• The root cause of problems is not addressed.
• No long term solution is taken.
• Inadequate involvement of NGOs and other civil societies or other social workers.
• Lack of institutional mechanism to delineate roles and responsibilities.
• The lower rank officers do not have the power to control the crime at a nascent stage.
• Lack of training to civil servants and police to deal with public offences.
• Lack of modern technology and types of equipment.
• Absence of criminalised database of perpetrators.
• Lack of cohesive all India policy for solving the menace of public disorder and offences.
• Ineffective performance monitoring systems and management agencies.
• Lack of accountability of police personnel and other related agencies.

Several reforms that could be introduced are:

• Establishment of rule of law.
• Visible policing is an effective method to deter public offences.
• an effective, efficient, accountable and well-equipped police system.
• a strong, autonomous and effective crime investigation machinery backed by a professionally competent and fair criminal justice system.
• Civil societies which are conscious of their rights, powers and duties.
• Alert and responsible media.

Conclusion

Public order is not just any other issue in the governance of the country, it is the core of it, comprising one of the vital aspects on which the democracy lies and the important realm of the foundation of our nation as a whole.

Chapter eighth of the Indian Penal Code deals with the offences against public tranquillity. These are offences which are committed against the whole society and disturbs the peace and tranquillity of the society. Any offence committed against an individual, but still could derange the public peace would come under the ambit of a public offence. Moreover, it is not necessary that actual offence is committed, but even if there is a possibility of causing public disorder, then it is a punishable offence. 

These offences are categorised into four, i.e. Unlawful assembly, rioting, affray and enmity amongst different classes. All of them are to a certain extent similar to each other with minor differences.

However, some reforms are needed to make these provisions in accordance with the changing times.

References

• https://thefactfactor.com/facts/law/criminal_law/indian_penal_code/rioting-section-146-148/1259/
• http://www.shareyouressays.com/knowledge/differences-between-riot-affray-and-assault-explained/118919
• https://www.academia.edu/7304444/Offences_A._Public_tranquility
• https://acadpubl.eu/hub/2018-120-5/2/101.pdf
• https://adrindia.org/sites/default/files/Details%20of%20IPC%20Sections%20153A,%20295%20&%20295A.pdf
• http://lawcommissionofindia.nic.in/reports/Report267.pdf
• https://www.legalbites.in/offences-against-public-tranquillity/
• https://www.srdlawnotes.com/2017/03/difference-between-common-intention-and.html
• http://delhihighcourt.nic.in/writereaddata/upload/CourtRules/CourtRuleFile_T4NVG6MR.PDF
• The Indian Penal Code, 1860, Ratanlal and Dhirajlal 33rd edition by Jst K.T. Thomas, M.A. Rashid
• 5th report of 2nd administrative reforms commission

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This article is written by Pranjal Rathore studying in Maharashtra National Law University, Aurangabad pursuing B.A.LL.B.(Hons.). In this article, the author has explained and covered two major topics under IPC.

Introduction 

Presently, a large share of criminal cases, more specifically, in the Courts of Judicial Magistrate First Class in India, is ‘Hurt’ cases. For example offences culpable under Section 323, 324, and 326 of Indian Penal Code, 1860. There is no criminal Court without these cases. ‘Hurt’ is known as influence damage to, prompt torment to, harm, debilitate, harm, wound, cripple, weaken, harm. In different words, it implies ‘be unfavourable to’. In the event that a delineation utilizes “wounds” as an action word, it doesn’t separate between the damage of “simple nature” or ”grievous nature”. The designers thought that it was hard to draw a line between those substantial damages which are serious in nature and those which are slight. They say that to draw such a line with great precision was totally impossible. Therefore, specific sorts of hurt were assigned as grievous.

Simple Hurt

Hurt may be described as the bodily pain that is resulting from real contact with the frame by an aggravated assault. There’s no radical difference between assault and harm. Section 319 of the Indian Penal Code, 1860 (hereinafter “IPC”) defines hurt as: “whoever reasons bodily pain, disorder or disease to any man or woman is said to have caused harm.” The section does not outline the offence of inflicting harm. It defines best the time period hurt and does not describe the situations underneath which it can be brought on. 

To constitute any one or more of essentials of simple hurt must be present:

• Bodily Pain
• Infirmity to another
• Disease

Bodily Pain

According to Section 319 of the Indian Penal Code, whoever causes bodily ache, disorder or disease to any individual is said to cause hurt. The expression ‘physical pain’ means that the pain must be physical instead of any mental pain. So mentally or emotionally hurting anyone will no longer be ‘harm’ inside the meaning of Section 319. However, to be covered under this section, it isn’t always important that any visible injury should be precipitated at the sufferer. All that the section contemplates is the inflicting of bodily pain. The diploma or severity of the ache or pain isn’t a fabric element to decide whether Section 319 will apply or not. The duration of ache or pain is immaterial. Pulling a girl with her hair would amount to hurt.

In the State vs Ramesh Dass on 22 May 2015 In a hospital, passing through the corridor, in the new surgical block location, an unknown public individual came from the front and attacked the woman. That individual pulled her hair and threw her to the ground. He hit her on her head together with his hand. Accused was convicted for the offences under Section 341 and 323 of the IPC and acquitted for the offence under Section 354 of the IPC.

Infirmity to another

Infirmity denotes the bad state of frame of mind and a state of transient intellectual impairment or hysteria or terror would constitute disease inside the meaning of this expression inside the section. It is an incapability of an organ to carry out its everyday function, whether temporarily or completely. It may be delivered through the administration of a toxic or poisonous substance or by means of taking alcohol administered by way of any other person.

Jashanmal Jhamatmal vs Brahmanand Swarupanand [AIR 1944 Sind 19]:In this situation, the respondent has been evicted with the aid of the owner. He attempts to get revenge via vacating others from that constructing too. Respondent later confronted with A’s spouse with a pistol in his hand. 

Disease

A communication of ailment or disease from one individual to another through the way of touch would constitute hurt. But, the idea is unclear with respect to the transmission of sexual sicknesses from one individual to every other. For instance, a prostitute who had intercourse with a person and thereby communicated syphilis changed into held in charge under Section 269 of the IPC for spreading infection and not for inflicting hurt due to the fact that the interval between the act and sickness turned into too far away to attract Section 319 of the IPC.

In Raka vs. Emperor, the accused was a prostitute and she inflicted syphilis to her customers. It was held that accused, the prostitute was liable under Section 269 of IPC- negligent act likely to spread infection of any disease dangerous to the life of another person.

Intention or Knowledge 

Intention or knowledge is an important aspect of causing hurt to an individual. A person who intentionally sets out to purpose shock to somebody with a weak coronary heart and succeeds in doing so, he is said to have caused hurt. Any bodily ache due to management of capsules can be protected under ‘harm’. Whilst the harm isn’t always severe and there is no purpose to cause death, or grievous hurt, the accused could be guilty of inflicting harm most effective, despite the fact that death is caused.

In Marana Goundan v. R [AIR 1941 Mad. 560] the accused demanded money from the deceased which the latter owed him. The deceased promised to pay later. Thereafter the accused kicked him at the abdomen and the deceased collapsed and died. The accused changed into held guilty of causing hurt as it couldn’t be stated that he meant or knew that kicking at the abdomen become in all likelihood to hazard existence. 

Section 321 of the IPC defines voluntarily causing harm as whoever does any act with the intention of thereby causing harm to any person, or with the expertise that he’s likely thereby to reason hurt to any individual, and does thereby motive harm to any person, is stated: “voluntarily to motive hurt”. What constitutes a selected offence relies upon the character of the act achieved (actus reus) but additionally upon the character of aim or know-how (mens rea) with which it’s far carried out. Section 319 defined the nature of the actus reus, which might constitute the offence of voluntarily causing harm, punishable under Section 323, and Section 321 describes the mens rea necessary to represent that offence. Goal and information need to be proved. The person in reality hurt wants now not always be the person who becomes intended to be hurt. Section 321 describes the situations that dress the act with factors of criminal activity, making it an offence.

The instances are: 

1. doing of an act, 
2. to any person,
3. with the goal or know-how of causing harm.

Grievous Hurt 

The draftsman of IPC found it tough to draw a line among those physical hurts, which can be severe, and people who are moderate. However, they special certain types of hurts as grievous hurt.

The following kinds of hurt only are termed as “grievous”:

1. Emasculation,
2. Permanent injury to eyesight or either of the eye,
3. Permanent deafness or injury to either of the eye,
4. Privation of any member or joint (loss of limb),
5. Impairing of Limb,
6. Permanent disfiguration of the head or face,
7. Fracture or dislocation of a bone or tooth,
8. Any hurt which risks life or which causes the victim to be during the time of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.

(a) Emasculation: The first type of grievous hurt is depriving a person of his virility. This clause is confined to men and was inserted to counteract the practice commonplace in India for women to squeeze men’s testicles at the slightest provocation. Emasculation can be resulting from causing such harm to the scrotum of a person as has the effect of rendering him impotent. The impotency prompted ought to be permanent, and no longer simply temporary and curable. 

(b) Injuring eyesight: Some other injury of identical gravity is the permanent deprivation of the sight of either eye or of both the eyesight. Such harm has to have the effect of permanently depriving the injured of the usage of one or both of his eyes. The test of gravity is the permanency of the harm because it deprives a person of the usage of his sight and additionally disfigures him.

(c) Inflicting deafness: The everlasting deprivation of hearing of both ears is less serious than the above-mentioned harm as it does no longer disfigure a person, however handiest deprives him of using his ear. But, it’s serious damage depriving someone of his sense of listening to. The deafness has to be permanent to attract this provision. Such harm may be resulting from blow given on head, ear or the one’s elements of the head which speak with and injure the auditory nerves or with the aid of thrusting a stick into the ear or placing into ear a substance which reasons deafness.

(d) Loss of limb: Everlasting deprivation of any member or joint is some other grievous hurt, whereby a person is rendered much less able to guard himself or to harass his adversary. ‘member’ method not anything extra than an organ or a limb. ‘Joint’ refers to an area where two or more bones or muscle mass be a part of. Their permanent deprivation needs to involve such damage to them as makes them permanently stiff, so that they are not able to perform the everyday function assigned to the human body structure. 

(e) Impairing of a limb: The deprivation of a person to the use of member or joint includes lifelong crippling and makes a person defenceless and depressing. The provision speaks of destruction or permanent impairing of their powers, which might encompass no longer only overall however additionally a particular use of the limb or joint. Any permanent decrease of their utility would constitute grievous hurt. 

(f) Everlasting disfiguration of the pinnacle or face: ‘Disfigure’ means to do a person a few outside hurts which detract from his private look, but does not weaken him. Branding a ladies cheek with red warm iron, it leaves permanent scars, amounts to disfiguration. a cut at the bridge of the nostrils of a woman due to a sharp weapon has been held to be everlasting disfigurement despite the fact that the inner wall become intact. 

(g) Fracture or dislocation of a bone or teeth: It’s far every other species of grievous harm, which may additionally or may not be attended with everlasting disability. A fractured or dislocated bone may be set or rejoin, but on account of the extreme suffering to which it gives upward thrust, the harm is named as grievous. The number one means of the word fracture is ‘breaking’, though it isn’t always essential in case of fracture of the cranium bone that it should be divided into separate parts due to the fact it may consist simply of a crack; but if it is a crack, it must be a crack which extends from the outer floor of the skull to the inner surface. If there may be spoil with the aid of cutting or splintering of the bone or there is a break or gap in it, would add up to a crack inside the importance of clause 7 of Section 320. What must be seen is whether the cuts during the bones saw in the damage report are just shallow or do they impact a break in them. ‘Dislocation’ implies dislodging, being applied to a bone expelled from its typical associations with a neighbouring bone. A bone moved out of its attachment or put out of its joint is a disjoint bone. 

(h) Any hurt which risks life or which causes the victim to be during the time of days in severe bodily pain, or unable to follow his ordinary pursuits.

• Dangerous hurt: Three distinct classes of hurt are assigned as risky or dangerous hurt. These classes are autonomous of one another and hurt of any of the three classes would be grievous hurt. Injury is said to endanger life in the event that it might put the life of the harmed in danger. Basic injury can’t be called offensive or grievous since it happens to be caused on an indispensable piece of the body except if the nature and measurements of the damage, or its belongings, are with the end goal that in the assessment of the specialist, it really endangers the life of the victim. There is an exceptionally meagre line of distinction between ‘hurt which endangers life’ and ‘injury as is probably going to cause death’. In Mohammad Rafi v. Emperor, the accused caused damage on the neck of the perished from behind, the Lahore High Court held the accused at risk for under Section 322 (intentionally causing grievous hurt) for causing demise by grievous hurt as against guilty of culpable homicide not adding up to the murder. The articulation ‘endangers life’ is a lot more grounded than the articulation ‘risky or dangerous to life’. With a perspective on the reality of the damage bringing about the weakening of the person in question for a base time of twenty days, the Indian Penal Code has assigned certain hurts as grievous however they probably won’t be fundamentally risky or dangerous to life. A hurt may cause extreme substantial and severe bodily pain, but not be dangerous to life. Such a hurt is grievous hurt. In any case, it must be indicated that such hurt was adequate to cause serious bodily pain for twenty days. Else, it might happen that such agony or pain was caused yet there might be nothing to show that it was caused in outcomes of that damage. In conclusion, the trial of terribleness is the sufferer’s failure to take care of his standard interests for a time of twenty days. On the off chance that, where the impact of damage doesn’t last for twenty days, such a hurt can’t be assigned as grievous.

Voluntarily Causing Grievous Hurt

Section 322 of the IPC characterizes ‘deliberately causing grievous hurt’ as pursues: Whoever deliberately causes hurt, if the hurt which he expects to cause or realizes that himself will generally be prone to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said “willfully to cause grievous hurt.” Explanation-An individual isn’t said willfully to cause grievous hurt with the exception of when he, the two causes grievous hurt and means or realizes that he generally will probably cause grievous hurt. Be that as it may, he is said intentionally to cause offensive hurt, if proposing or realizing that himself generally will probably cause grievous hurt of one kind, he actually causes grievous hurt of another sort. The clarification is undeniable and self-evident.

In any case, there must be proof that what the accused had planned or known to be likely wasn’t only hurt, yet grievous hurt. So as to attract this provision, Court needs to see that the accused expected to cause hurt, or that he realized that grievous hurt is probably going to be caused and that such grievous hurt is really caused. Regardless of whether the individual knows himself prone to cause grievous hurt, he is said to be intentionally causing terrible hurt. All together that an individual might be held liable for an offence of causing grievous hurt, it must be demonstrated that he either expected to cause or realized that himself will generally be liable to cause grievous hurt and not otherwise. The prerequisite in the clarification will be fulfilled if the guilty party had the information that by his demonstration he was probably going to cause grievous hurt. Clarification clarifies that either the element of aim or on the other hand that of information must be available so as to establish the offence of grievous hurt. So as to decide if the hurt is intolerable one, the degree of the hurt and the expectation of the guilty party must be considered. 

Section 325 of the IPC recommends the discipline for intentionally causing hurt as pursues: Whoever, aside from for the situation accommodated by Section 335, willfully causes grievous hurt, will be rebuffed with the detainment of either portrayal for a term which may stretch out to seven years, and will likewise be obligated to fine. An individual is said to willfully cause grievous hurt when the hurt brought about by him, is of the idea of any sort of hurts listed in Section 320 of the IPC, and he expects or realizes that himself will generally be likely to cause grievous hurt. In Kalika Singh v. Province of Uttar Pradesh, a few wounds caused to complainant by blamed by clench hands and lathi incorporated a break caused to one side thumb by his fall on the ground during his beating by the accused. The Allahabad High Court held that the accused was liable under Section 325, even though the fracture was caused by the fall and not by the lathi. Sections 326, 329 331, 333, 335 and 338 prescribe punishment for causing grievous hurt under various other circumstances. 

Causing Hurt or Grievous Hurt by “Dangerous Weapons”

As indicated by Section 320, grievous hurt means hurt which brings about a particular sort of explicit wounds. These wounds incorporate deprivation of eyes or ears, harm to joints, undermining, and so on. Section 326 fundamentally depicts an irritating type of unfortunate hurt. Under this offence, the deplorable hurt must outcome from instruments of firing (weapons), wounding or cutting (blades). It can likewise emerge from different weapons which are probably going to cause demise or death. Indeed, even explosives, harms, destructive substances or flames bringing about grievous hurt attract this provision. Since the odds of offensive wounds are progressively under these conditions, the discipline is likewise increasingly serious. An accused under Section 326 can be punished with life detainment or detainment as long as 10 years.

Causing Hurt or Grievous Hurt on Provocation

1. Willfully causing hurt on provocation (Sec. 334) 

“Whoever deliberately causes hurt on grave and sudden provocation, on the off chance that he neither means nor realizes that himself will generally probably make hurt any individual other than the individual who provoked, will be rebuffed with detainment of either description for a term which may reach out to one month, or with fine which may stretch out to 500 rupees, or with both.” 

2. Intentionally causing offensive hurt on incitement (Sec. 335) 

“Whoever intentionally causes grievous hurt on grave and unexpected incitement or provocation, on the off chance that he neither expects nor realizes that himself will generally probably make intolerable hurt any individual other than the individual who gave the incitement or provoked him, will be rebuffed with detainment of either depiction for a term which may reach out to four years, or with fine which may stretch out to 2,000 rupees, or with both. 

Explanation:- 

The last two sections are dependent upon the same provision as Exception 1, Section 300.” 

The fundamental elements of Sections 334 and 335 are as per the following: 

1. The guilty party ought to intentionally cause hurt or shocking hurt; 
2. It ought to be caused by provocation; 
3. The incitement caused ought to be both grave and abrupt; 
4. He ought not wished or intended to cause hurt to any individual other than the individual who incited; 
5. He ought not to have information that his demonstration is probably going to make harmed or offensive hurt any individual other than the individual who incited. 

All together that Sections 334 and 335 ought to apply, it is critical to building up that there was incitement and such incitement was grave and abrupt. On the off chance that the incitement is just unexpected yet not grave, the offence won’t be one culpable under both of these Sections. Thus, if the incitement is just grave and not unexpected, the demonstration won’t add up to an offence under these sections. The trial or check of ‘grave and unexpected’ incitement is whether a sensible man having a place with a similar class of society as the accused, put in the circumstance in which the accused was set, would be so incited as to lose his control. In the event that the hurt caused is basic hurt, at that point the discipline endorsed under Section 334 is detainment of either depiction, which may stretch out to one month or with fine which may reach out to Rs. 500 or with both. On the off chance that the hurt is grievous hurt, at that point the discipline endorsed under Section 335 is detainment of either depiction for a term which may reach out to four years or with fine which may stretch out to Rs. 2000 or with both. The offence under Sections 334 and 335 is cognizable however summons will usually issue in the main example. It is bailable, compoundable and is triable by a Magistrate.

Dangerous Weapons or Dangerous Means

In criminal law, the expression, “dangerous weapon” alludes to a gun, or whatever another article that is utilized or proposed to be utilized so that it could make demise or genuine damage another individual. Legitimately, the term is a lot more extensive than what many people think. For example, respondents who have been seen as liable of ambush with a savage weapon have acted in an accompanying way:

• Assaulting somebody with a bat or other sports equipment 
• Employing a blade at somebody, expecting to harm her 
• Pointing a firearm at somebody’s head and taking steps to pull the trigger 
• Deliberately utilizing a vehicle to hit another driver or person on foot 
• Pursuing an individual with a hatchet

Notwithstanding firearms and blades, different things can be utilized as lethal or dangerous weapons. A couple of models include broken jugs, hounds, control instruments, cultivating devices, gruff items, pontoons, and any mechanized vehicles. There is a motivation behind why the law is expansive, and that is to keep away from any escape clauses in figuring out what comprises a dangerous weapon. Fundamentally, anything that can prompt incredible substantial damage and additionally passing is culpable in an official courtroom. In certain states, an individual’s hands, feet, and teeth may all be utilized as destructive weapons. In spite of the fact that the human body itself is anything but a lethal weapon, it can positively be utilized to cause someone else extraordinary real hurt or demise/death. Different states, for example, California characterize a lethal weapon as an article that is outer to the human body. Be that as it may, California additionally has a provision that expresses “any methods for power liable to create extraordinary substantial damage,” which would warrant an attack with a dangerous weapon charge. On the off chance that somebody assaults an individual by stifling, kicking, or punching, he could confront attack with a fatal weapon. A vehicle is viewed as a lethal and dangerous weapon in situations where the driver planned to hit another driver or walker. Some driving impaired cases are additionally accused as an attack of a lethal or dangerous weapon.

Causing Grievous Hurt by use of Acid

As per Section 326A of Indian Penal Code,” Whoever makes changeless or halfway harm or distortion, or consumes or mutilates or distorts or cripples, any part or parts of the body of an individual or causes offensive hurt by tossing corrosive on or by regulating corrosive to that individual, or by utilizing some other methods with the expectation of causing or with the information that he is probably going to cause such hurt, will be rebuffed with detainment/imprisonment of either portrayal for a term which will not be under ten years however which may stretch out to detainment forever(life imprisonment), and with fine.

“According to Section 326B of Indian Penal Code,” Whoever tosses or endeavors to toss corrosive on any individual or endeavors to control corrosive to any individual, or endeavors to utilize some other methods, with the aim of causing lasting or fractional harm or deformation or distortion or inability or grievous hurt to that individual, will be rebuffed with detainment of either depiction for a term which will not be under five years yet which may reach out to seven years, and will likewise be subject to fine.” Section 357B of Code of Criminal Procedure 1973 sets down, ” The remuneration payable by the State Government under Section 357A will be notwithstanding the payment of fine to the unfortunate casualty under Section 326A or Section 376D of IPC. Section 357C of Code of Criminal Procedure 1973 sets out, “All emergency clinics, public or private, regardless of whether run by the Central Government, nearby bodies or some other individual, will quickly give the emergency treatment or therapeutic treatment, free of cost, to the casualties of any offense secured under Section 326A, 376, 376A, 376C, 376D or 376E of IPC and will promptly educate the police about such an incident.

Recently included seventh provision of Section 100 of the IPC sets out that the privilege of private barrier of body stretches out to deliberately causing death or of some other damage to the attacker in the event of a demonstration of tossing or managing corrosive or an endeavour to toss or regulate corrosive which may sensibly cause the dread that terrible hurt will generally be the result of such act. For the first time remuneration was given to corrosive unfortunate casualty on account of Laxmi v UOI. In Morepally Venkatasree Nagesh v State of AP, the accused was suspicious about the character for his significant other and emptied mercuric chloride into her vagina, she later kicked the bucket because of renal disappointment. The accused was charged under Section 302 and 307 of the IPC. In the State of Karnataka by Jalahalli Police Station v Joseph Rodrigues, one of the most popular cases including corrosive assault. The accused tossed corrosive on a young lady named Hasina for declining his employment bid. Because of the corrosive assault, the shading and presence of her face changed which left her visually impaired. The accused was convicted under Section 307 for IPC and condemned to detainment forever(life imprisonment). Remuneration of Rs 2,00,000 notwithstanding Trial Court fine of Rs 3,00,000 was to be paid by the accused to the guardians for the victim. 

The previously mentioned cases are obvious of the brutal repercussions looked by the unfortunate casualties because of the corrosive assaults. The administration is still in the quest for stringent measures.

Causing Hurt or Grievous Hurt to Extort Property

Under Section 330, the guilty party causes hurt for coercing an admission or data identifying with an offence or unfortunate behaviour. This, for the most part, applies to cops or police officers who mischief accused people to compel them to admit. The coercion on the unfortunate casualty can likewise happen to blackmail such admission or data from someone else. This hurt can likewise occur to oblige the unfortunate casualty to reestablish some property or significant security. For instance, an income official may torment an individual to propel him to settle up back payments of land income. Discipline for Section 330 incorporates detainment/imprisonment as long as 7 years alongside a fine. Section 331 is like Section 330 however it identifies grievous hurt rather than simply basic hurt. Since grievous hurt is progressively extreme, the discipline can reach out to detainment for a long time rather than 7 years.

Causing Hurt by Means of Poison

Under this provision, the guilty party must manage toxic substance or some other stunning, or unwholesome medication to the person in question. The guilty party must do as such with the aim of causing hurt or for submitting or encouraging an offence. Such a goal is significant and no offence emerges without it. Discipline for Section 328 incorporates detainment as long as 10 years with fine. Whoever directs to or causes to be taken by any individual any toxic substance or any stunning, or unwholesome medication like poison, or other thing with plan to make hurt such individual, or with aim to submit or to encourage the commission of an offence or realizing that it will generally be likely that he will in this manner cause hurt, will be rebuffed with detainment of either portrayal for a term which may stretch out to ten years, and will likewise be at risk to fine.” 

Coming up next are the basic elements of Section 328: 

1. The wrongdoer ought to manage a toxic stunning or unwholesome medication; or 
2. Such an individual ought to be with the goal to cause hurt; or 
3. With an aim to submit or encourage the commission of an offence; or 
4. Such an individual ought to be with the information that it is probably going to cause hurt. 

The object of Section 328 is clearly to rebuff people who violate others by putting them out of their faculties by methods for stunning medications, which encourages the commission of wrongdoing as well as in an incredible measure counteracts its recognition. In any case, there must be the regulating of any toxic substance, and so forth., making it be taken by another. The words ‘any individual’ means any individual other than the guilty party. The words ‘manage’ and ’cause to be taken’ are planned to apply to two particular strategies for conferring poison and so on. The principal refers to the giving of toxic substance legitimately to the sufferer, while the expression ’cause to be taken’ refer to a taking by the sufferer under conditions when he was not a free operator to do something else.

The models for regulating ‘unwholesome medication’ are:

1. the juice of certain leaves to certain residents by method for the experience; 
2. powder of dhatura to a lady to loot her adornments while she was silly; 
3. a spouse, not knowing the hazardous properties of aconite, managed it to her significant other by blending it in with his nourishment and he kicked the bucket; 
4. where an accused directed a poisonous substance to an individual so as to burglarize him when the individual was oblivious or stunned, it would be an occurrence of overseeing inebriating substance for encouraging the commission of an offence. The offence under Section 328 is finished regardless of whether no hurt is caused to the individual to whom the toxic or some other stunning or unwholesome medication is given. Under Section 324 genuine causing of hurt is basic; under Section 328 unimportant organization of toxin is adequate to carry the guilty party to equity. This offence is cognizable, non-bailable, non-compoundable and is triable by the Court of Session. The most extreme discipline awardable under Section 328 is thorough detainment stretching out as long as ten years.

Causing Hurt or Grievous Hurt to Deter Public Servants

1. Deliberately causing hurt to deter public servant from his obligation (Sec. 332) 

“Whoever willfully hurts any individual being a community worker/public servant in the release of his obligation all things considered local official, or with aim to forestall or hinder that individual or some other local official from releasing his obligation in that capacity local official, or in result of anything done or endeavored to be finished by that individual in the legitimate release of his obligation accordingly local official, will be rebuffed with detainment of either portrayal for a term which may stretch out to three years, or with fine, or with both.” 

2. Deliberately making grievous hurt to deter public servant from his obligation (Sec. 333) 

“Whoever intentionally makes grievous hurt any individual being a local official in the release of his obligation all things considered community worker, or with goal to avoid or deflect that individual or some other local official from releasing his obligation all things considered local official, or in outcome of anything done or endeavoured to be finished by that individual in the legitimate release of his obligation all things considered local official, will be rebuffed with detainment of either portrayal for a term which may reach out to ten years, and will likewise be at risk to fine.” 

Coming up next are the fundamental elements of Sections 332 and 333: 

1. The guilty party ought to willfully hurt or grievous hurt a local official or public servant; 
2. It ought to be caused: 

a)When the community worker acted in the release of his obligations; 

b)To avoid or dissuade that local official or some other community worker from releasing his obligation; or 

c) In the outcome of anything done or endeavoured to be finished by the local official in the release of his obligation. 

The term ‘public servant’ is characterized under Section 21 of the Code. Section 332 and 333 apply just if the local official was acting in the release of his obligation as a community worker or it ought to be demonstrated that it was the expectation of the blamed to avoid or stop the public servant from releasing his obligation. The articulation ‘in the release of his obligation all things considered local official’ signifies in the release of an obligation forced by law on such community worker in the specific case, and doesn’t cover a demonstration done by him in accordance with some basic honesty under the shade of his office. The obligation need not be to do a particular demonstration. ‘Counteractive action’ alludes or refers to a phase when the execution of the obligation is entered upon; ‘hinder’ refers to a phase when it has not been at this point entered upon. “Or on the other hand in result of anything done” where case the attack would be submitted by method for the counter. These words show that the offence under the section can be submitted not just when an individual is attacked while he is releasing an open obligation yet in addition when he is attacked in the outcome of the release of his obligation. 

Section 353 of the Code also manages criminal attack on community worker to discourage him from the release of his obligation. People other than community workers who may go with them for help and direction are not qualified to guarantee unique security under Sections 332 and 333. The offence under Section 332 is cognizable and warrant ought to customarily issue in the principal occurrence. It is non-bailable and not compoundable and is triable by a Magistrate of the top of the line. The offence under Section 333 is cognizable, however, warrant ought to commonly issue in the primary occurrence. It is both non-bailable and non-compoundable and solely triable by the Court of Sessions. Discipline under Section 332 is detainment/imprisonment of either depiction for a term which may stretch out to three years, or with fine or with both. Discipline under Section 333 is detainment of either portrayal for a term which may reach out to ten years, and will likewise be subject to fine.

Causing Hurt or Grievous Hurt by Endangering Life of Personal Safety of Others

1. Act endangering life or individual wellbeing of others (Sec. 336) 

“Whoever does any demonstration so impulsively or carelessly as to imperil human life or the individual security of others, will be rebuffed with the detainment of either portrayal for a term which may stretch out to a quarter of a year, or with fine which may reach out to 200 and fifty rupees or with both.” 

2. Causing hurt by act endangering life or individual wellbeing of others (Sec. 337) 

“Whoever hurts any individual by doing any demonstration so impulsively or carelessly as to imperil human life, or the individual wellbeing of others, will be rebuffed with detainment of either depiction for a term which may stretch out to a half year, or with fine which may reach out to 500 rupees, or with both”. 

3. Causing grievous hurt by act endangering life or individual wellbeing of others (Sec. 338) 

“Whoever makes shocking hurt any individual by doing any demonstration so imprudently or carelessly as to jeopardize human life, or the individual wellbeing of others, will be rebuffed with detainment of either depiction for a term which may reach out to two years, or with fine which may stretch out to one thousand rupees, or with both”. 

The fundamental elements of these sections are as per the following: 

• The act of the charged probably brought about simple or grievous hurt;
• The act must be done in a rash and careless way; 
• The impulsiveness or carelessness must be to the degree of imperilling human life or individual wellbeing of others. 

These areas will be pertinent in situations where hurt caused is an immediate consequence of the carelessness or rash act. Unimportant carelessness or imprudence isn’t sufficient to bring a case inside the ambit of Section 337 or Section 338. Carelessness or imprudence demonstrated by proof must be, for example, ought to essentially convey with it a criminal obligation. Regardless of whether such risk is available may rely upon the level of culpability having respect for each situation to the specific time, spot and conditions. On the off chance that it is only an instance of remuneration or reparation for damage or harm caused to an individual or property, it is plainly not culpable under both of the areas. The culpability to be criminal ought to be, for example, concerns not just the individual harmed or property harmed however the security of people in general out and about. In any case, the nature and degree of the hurt or harm will be excess in fixing criminal obligation for carelessness under these areas.

An offence under Section 336 is punishable with the detainment of either depiction for a term which may stretch out to a quarter of a year or with fine which may reach out to Rs. 250 or with both. An offence under Section 337 is punishable with detainment/imprisonment of either depiction for a term which may reach out to a half year, or with fine which may stretch out to 500 rupees or with both. An offence under Section 338 is punishable with the detainment of either depiction for a term which may stretch out to two years, with fine which may reach out to one thousand rupees or both. Offences under Sections 336, 337 and 338 are cognizable and subject: Offense under Section 336 is non-compoundable, though under Sections 337 and 338 are compoundable.

Proposals for Reform

It is suggested that a changed rule on offences against the individual ought to not contain the meaning of goal and that the significance of expectation ought to keep on being chosen by general standards of criminal law. 

It is suggested that a changed rule on offences of brutality ought to give for the accompanying two offences: 

1. physical attack, where an individual deliberately or carelessly applies power to or causes an effect on the body of another, without the assent of that other; or 
2. the undermined attack, where an individual deliberately or carelessly causes another to feel that any such power or effect is or might be fast approaching and that different doesn’t agree to the lead-in question.

It is suggested that a transformed rule on offences of viciousness ought to give for an offence of bothered attack, characterized as pursues: 

1. the lead component would be equivalent to that for physical or compromised attack (that is, it would be one offence that can be submitted in two different ways); 
2. the attack must have the aftereffect of causing some damage; 
3. the flaw component ought to be equivalent to that for the physical or compromised attack, without the requirement for aim or foolishness in connection to the damage caused; 
4. the offence ought to be triable just in a judges’ court; and 
5. the most extreme sentence ought to be 12 months.

It is prescribed that a transformed resolution on offences of brutality ought to contain offences of: 

1. causing genuine damage aiming to oppose, avoid or end the legal capture or confinement of himself or a third individual;
2. attack aiming to oppose, counteract or end the legal capture or confinement of himself or a third individual. The greatest punishment for the offence understatement 6 ought to be set at over 7 years yet under life.

It isn’t prescribed that offences of presenting people to the peril of ailment, or of neglecting to uncover infection. 

The offence under condition 3, of deliberately or foolishly causing damage, ought to avoid situations where the hazard taken is, for example, to be commonly adequate in the conventional lead of everyday life, however, we think about this is adequately guaranteed by the foolishness necessity of the offence.

It is prescribed that a changed rule overseeing offences of savagery ought to incorporate an offence of taking steps to slaughter, influence genuine damage to or assault any individual, including situations where the risk is restrictive on the direction of the individual to whom the danger is made or some other actuality or event.

It is suggested that a changed rule overseeing offences of brutality ought to incorporate an offence of support to kill, and this ought to incorporate situations where the support is contingent.

Conclusion

As observed above, ‘Hurt’ is mischief, injuring, torment, irritation, throbbing, inconvenience, hurting, stinging, throbbing, aches. In every single criminal court, the greater part of the cases is ‘deliberately causing hurt’ cases. When there is a neighbourly settlement between the gatherings in non-compoundable hurt cases like 324 and 326 IPC, it is apparent from the decisions of our legal executive and judiciary that tolerant view is being taken. The Law Commission in its 237th report prescribes that Section 324 IPC ought to be inducted into the ambit of Section 320 CrPC and it ought to hold its unique situation in Table 2 attached to sub-section(2) thereof. Medicinal narrative confirmations like medico-legal reports on harms arranged by the restorative specialists are significant for the courts in making their lawful decisions. The kind of wounds and weapons, lawful classes of damages and their ages must be explicitly noted in the damage reports: Medicolegal preparing and encounters fortify the capacities of the restorative master observers.

In my view, to diminish pendency of these cases, it is the obligation of the Government of India to find a way to revise Section 320 of Cr.P.C to compound Section 324 of IPC cases. The injured individual is set up to support the hostile direct of the blamed who became reprimanded and apologetic. Criminal law should be receptive to observe such circumstances and shall give solution to end the criminal procedures in regard to specific sorts of offences. That is the justification behind the exacerbating of offences. Unexpectedly, the aggravating plan assuages the courts of the weight of aggregated cases. Make certain to taste your words before you let them out.

For further knowledge about reforms check out the link given below:

http://www.lawcom.gov.uk/app/uploads/2015/11/51950-LC-HC555_Web.pdf 

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

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The word misappropriation is defined under Section 403 of Indian Penal Code,1860 which is defined as whoever;

1. Dishonestly misappropriated for its own use or another person at the instance of it.
2. Any movable property punishment for the offence is imprisonment of either description which may extend to two years or with fine or with both Section 405 is based on criminal breach of trust. Here ‘trust’ is the essential and ‘breach’ of this makes the offence under section 405 which is punishable with imprisonment of either description which may extend to three years or seven years (depending on the person who has breached the trust) or with fine or both. 

In other words, when one person dishonestly misuses or misappropriate the property provided the property is movable in nature for own use or another is known as criminal misappropriation. 

Essential Ingredients

To constitute the offence of misappropriation the following essential ingredient must be there; 

The property must be of Another

For constituting criminal misappropriation the essence behind this act is that the property must be of some other owner other than the person using it dishonestly for his own use. 

Case 1

Person A took something from person B by mistake or unknowingly but returned it when he found property belong to person B. In this case, there is no misappropriation of property.

Case 2

Person A took something from person B by mistake or unknowingly but don’t return it even when he found property belong to person B. 

Finding of Property 

Someone gets a property of others on the roadside, let’s say, a gold ring or wallet and he keeps it to himself since the real owner is unknown but even if the true owner is identified he uses and keeps the property with himself this act is an offence known as misappropriation of property.

Explanation to this section involves that in case of a finding of the property if one has taken all the careful measures to ascertain the true owner and kept the goods for a subsequent time for restoring it to the real owner but if instantly misappropriate the goods he would be liable under this section of IPC. 

Converts to Own Use;

The essence ‘converts to his own use’ signify the usage or deals with the property in decrying the right of the owner.

Ramaswami Nadar VS. The state of Madras

Servant or Clerk Taking his Master’s Property

Theft of property by servant or clerk stealing the property of his master is a punishable offence with even greater severity under Section 381 of Indian Penal Code. This is so because the master or owner impose greater trust in them to look and care about the property.

Therefore, theft of these property amounts to a violation of that trust. The punishment for this offence in the theft of this possession of these properties is punishable of imprisonment extends to 7 yrs with a subsequent fine. 

Dishonest Intention 

Whoever dishonestly misappropriated or converted to his own use any movable property shall be punished with imprisonment of duration which may extend to two years or with fine or more.

For example; 

• When two people, A and B jointly own a property lets say a car and later B without the consent of A sold that particular good for his own self motive.
• Found some property whose owner can be found and you used it personally for own use. Using of property whose owner is not known but you used it immediately for your own gain without waiting for sufficient time. A Criminal complaint regarding this matter is not maintainable under court, referring to the case U. Dhar & Anr vs The State Of Jharkhand.

Theft under IPC

Theft under IPC is an act of stealing property belonging to someone else. However, its certain requirements and specific ingredients.

According to Section 378 theft includes misappropriating taking or stealing any movable property out of the possession of a person. This act of stealing must be without the consent of the concerned person. Therefore, in order to constitute, it must fulfil the following conditions:

• Dishonest intention to take the property 
• Movable property, not immovable one
• Without the consent of the concerned person
• Must move the property to execute the act

All these essentials must be there to fulfil the requirements. If any of the following essentials are not present then the offender is not guilty of the offence of theft.

Distinction between Theft and Criminal Misappropriation 

Before discussing the distinction between theft and criminal misappropriation lets get clear about the similarities between the two which areas:

1. Movable property- For constituting the offence of criminal misappropriation and theft the basic common element behind this is that the means of property or goods should be movable in nature for committing these acts. To be precise, the property should move from one place to another for executing the purpose of theft or misappropriation of the property.
2. Dishonest intention- The intention or the motive behind these acts should be dishonest. The act involves fraud or misappropriation activity by default.

Now talking about the differences 

• In the case of theft, the intention behind this act is dishonest or malafide with irrational motive and the person constituting theft is cognizant about the process that he is doing wrong.

Whereas, in the case of criminal misappropriation initially there may be the case that there is no dishonest intention in the finder of goods for misappropriating the goods but the offence is committed when after due time the property is detained with the wrong person illegally without the knowledge of the actual owner of the property. Later after some time, there might be the wrong intention to commit misappropriation of the property for his personal use.

• The second difference between the two is that in theft the consent of the true owner is not known to the party on the other hand in case of misappropriation initially the true owner gave consent to the person for using the property and later maliciously the person used it for his own purpose. In theft, the consent is nowhere involved.
• Timing of the offence- In theft, the moment when someone took the property of the owner dishonestly he committed the offence of theft. Rather in case of misappropriation, the offence is committed when the person unduly denies giving the property to the true owner he committed the offence of misappropriation without the consent of the true owner in his own favour. Then the act of misappropriation is committed.

Offences Affecting Property – Criminal Breach of Trust

The Indian Penal Code, 1860 contains various offences against properties under Chapter XVII. Most of these offences require physical movement of properties by the aggrieved person, some of them just require a dishonest intention mind. For instance, criminal breach of trust is one such offence. The basic element of this offence is the infringement of trust with respect to the usage of goods or properties.

Aggravated Form of Criminal Misappropriation

Section 404 is an aggravated form of Criminal misappropriation. This section confers to afford protection of a deceased to the property under which the circumstance needs special protection.

Key Ingredients

To constitute Section 404 of the Indian Penal Code these ingredients must be fulfilled.

(i) The good must be any movable property;

(ii) Such property should be under the possession of the deceased at the time of death of the owner;

(iii) The accused misappropriated it or converted it for his own use;

(iv) The offender did it dishonestly.

An offence under this Section is non-cognizable, bailable, non-compoundable, and capable of being tried by a magistrate of the first class.

Scope of the Section

An individual who converts any movable goods or property to his own use must be punished with imprisonment of either subsequent term which may extend to two years or both.

Criminal Breach of Trust

According to Section 405, this offence requires a person to confer a property or dominion over it onto others. Moreover, this is basically a form of trust which the victim accords on the offender with respect to his property.

Secondly, the offender must misappropriate or convert that property to his own use. He may even fraudulently use or dispose of that property by infringing a law to control or direct according to rule principle of law for proper functioning. This may even lead to the breach of any express or implied contract between the defendant and the victim himself.

For instance, A may lend his car to his friend B to use it for transportation. B, instead, uses it for transporting illegal goods like ivory. Here, B is guilty of criminally breaching A’s trust.

Essential Ingredients 

Entrustment 

Entrustment means control over the property by one person to the other in such a way that the person on whose interests the property is handed over continues to be an owner. The word entrustment is very essential to constitute the offence of criminal breach of trust.

Following the case, Surendra Pal Singh Vs. State of Uttar Pradesh describes the same.

The only difference between the two is that in the scope of criminal breach of trust, the defendant is entrusted with property or with dominion or control over the property. As the title to the breach of law itself suggests, entrustment of property is an essential requirement before any offence under this section takes place. The language of the section is very wide. The words used are ‘in any manner entrusted with property’. So, it extends to entrustments of all kinds-whether to clerks, servants, business partners or other persons, provided they are holding a position of trust. “The term “entrusted” found in Section 405 IPC rules the word “with the property”.

Property

The defendant must spend with a trust or secure the property with authority. There must an entrustment of property. Presiding over the case of Ramaswami Nadar State of Madras, SC held that the basic requirement of entrustment must be there to fulfil the essentials of criminal breach of trust offence under Section 405. 

Dominion Over Property

The domain is the superior right of property inland, it is the most and fullest right of goods or property which is a legal concept derived from dominium of the Roman law. The domain is the right of the property as well as the possession or use of the property. It is absolute and complete ownership of property or land. The government can under some situation seize property without or with permission.

Misappropriation 

‘Dishonest misappropriation’ is the basic element of this action. Dishonesty is as defined in Sec.24, IPC, generating wrongful gain or wrongful loss to a person. The meaning of wrongful gain and wrongful loss is defined in Section 23 IPC. In order to constitute an offence, it is not enough to attain that the money has not been accounted for or mismanaged. It has to be accepted that the defendant has insincerely put the property for his own use or to some without the permission of the owner before using. Dishonest intention to misappropriate is a crucial fact to be proved to bring home the charge of criminal breach of trust.

Case Krishan Kumar V Union of India

Misappropriation arises when a person illegally sets apart or assigns to some other person use to which it should assign to some other person to the exclusion of the owner in case of actus rea it will consist of either of the four positive acts:

• Conversion
• Misappropriation
• Disposal of property
• User

Aggravated Forms of Criminal Breach of Trust

The section of 407- 409 includes aggravated form of criminal breach of trust which talks about three distinct classes to which entitles belong i..e.a carrier, a warehouse keeper and a wharfinger who is the owner of a wharf who received some property or goods under some contract who is expected to carry the goods in the safe custody with them.

Whosoever, being entrusted with the property dishonestly converts or misappropriation for his own use in breach of any law or any legal contract commits ‘Criminal breach of Trust’.

Section 407 confers with ‘criminal breach of trust by carrier’. Carrier is basically a person who attempts or seek to transport goods for hire.

So, according to the section of 407, if any carrier, warehouse keeper or a wharfinger who is entrusted with that property not necessarily movable but dishonestly misappropriated or converts the property for own use then, in that case, he shall be punishable under the offence of criminal breach of trust. And the punishment for the same would be liable with imprisonment of 7 years with a subsequent amount of fine.

Section 408 deals with ‘criminal breach of trust by clerk or servant’

Conclusion

We come to the conclusion that criminal breach of trust and criminal misappropriation cannot be considered as the same offence. there is no contractual relationship of the accused with the actual owner of the property in case of criminal misappropriation.it applies on the conversion of the property where the offender gets possession of the property by any casualty or anyhow where property must be movable and he apparently misappropriated it. In the case of criminal breach of trust, there is a legal contractual relationship of the accused with the actual owner of the property. Property can be either movable or immovable. It applies to the conversion of property held by a person in a fiduciary capacity. Further, the owner or we can say the debtor and the defendant should have a fiduciary relationship with each other. 

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

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This article is written by Sachi Ashok Bhiwgade, B.A.LLB (Hons.) student of Hidayatullah National Law University, Raipur. In this article, she has discussed about Chapter VII of Indian Penal Code which talks about offences relating to Army, Navy and Airforce. 

Introduction

Chapter VII of Indian Penal Code, 1860 deals with offences committed by civilians in relation to officers in Army, Navy and Airforce of the Government of India. The main objective of this chapter is to maintain discipline and order in the Armed Forces of the Union. 

In most of the countries across the globe, the defence personnel are governed by their own special laws. But if they commit serious offences (like murder) they can be tried by civil or criminal courts. However, the Military Court does not have the power to exercise jurisdiction if the offence is committed by a civilian. Similarly, as per Section 139 of the code, persons who are subject to court-martial will not be dealt with under the code. The special laws which govern them in India are: 

• The Army Act, 1950 (46 of 1950);
• The Indian Navy (Discipline) Act, 1934 (34 of 1934); and 
• The Indian Air Force Act, 1950 (45 of 1950).

The correlation between Indian Penal Code, 1860 & Army Act, 1950 can be studied under the following table: 

Offences Relating to the Army, Navy and Air Force 

The classification of offences which are committed by civilians in relation to the Army, Navy and Air Force governed by the Indian Penal Code which can be studied in the following manner:

Abetment of Mutiny 

Section 131 states that any person who abets the commission of mutiny by an officer, soldier, sailor or airman in the Army, Navy or Airforce or attempts to seduce an officer, soldier, sailor or airman from his allegiance or his duty, such person shall be liable to be punished with life imprisonment or imprisonment up to 10 years and shall also be liable to fine.

This section has two parts. First part makes abetment of mutiny punishable and the Second part makes an attempt of seduction punishable. It would in this way create the impression that Section 131 applies to situations where mutiny isn’t committed as a result of the abetment. The offence contemplated under Section 131 is an abetment which is not followed by actual mutiny, or which, supposing actual mutiny follows, is not the cause of that mutiny. 

It was observed by the court that the offence of mutiny consist in extreme subordination as if a soldier resists by force, nor if a number of soldiers rise against or oppose their military superiors, such acts proceedings from alleged or pretended grievances of a military nature. Acts of a riotous nature directed against the government or civil authorities rather than against military superiors seem also to constitute mutiny.

Under Section 132, If mutiny is committed as a consequence of such abetment by any officer, soldier, sailor or airman in the Army, Navy or Airforce then, such a person will be punished with death or life imprisonment or with imprisonment which may extend up to 10 years and also with fine. Both Sections 131 & 132 must be read together.

Section 131, mentions that “officer”, “soldier”, “sailor” or “airman” will include any person who is subject to the Army Act, 1950; the Indian Navy (Discipline) Act, 1934; the Air Force Act, 1950. This explanation was not there originally and was inserted by an amendment of Act 27 of 1870 and was amended by Act 10 of 1927.

Abetment of Assault by an Officer on a Superior Officer

Section 133 states that any person who abets any officer, soldier, sailor, or airman in the Army, Navy or Air Force of the Government of India to assault any superior officer who is in the execution of his office shall be punished with imprisonment for a term which may extend up to 3 years and shall also be liable to fine. Section 134 provides that if an assault is committed as a result of such abetment then such person shall be punished with imprisonment for a term which may extend to 7 years and also with fine. 

Sections 133 and 134 deals with abetment of assault of any officer, soldier, sailor, or airman on a superior officer. Under Section 133, only abetment of an assault is punishable while Section 134 punishes the abetment of an assault when such assault is committed as an outcome of such abetment.

Abetment of Desertion 

Under Section 135, any person who makes an abetment of desertion of any officer, soldier, sailor, or airman in the Army, Navy or Air Force of the Government of India, shall be punished with imprisonment for 2 years or with fine or with both. Section 135 does not recognize whether abetment of desertion is successful or not. The desertion abetted does not need to happen. Mere abetment is made punishable. 

Harbouring deserter

Section 136 states that if any person who knows or has reason to believe that any officer, soldier, sailor, or airman in the Army, Navy or Air Force of the Government of India has deserted, harbours such officer, soldier, sailor, or airman, he shall be punished with imprisonment which may extend to 2 years or with fine or with both. The exception is given only to a wife. 

This Section implies that if any person gives harbour (shelter) to an official who has deserted Army, Navy or Air Force working under the head of Government of India (with the exception of the individuals who are relied upon to so), he shall be punished. The crux of this Section is concealment of the deserter to prevent his apprehension.

Section 137 punishes the master or person in charge of a merchant vessel on board of which a deserter has concealed himself, even though he is ignorant of such concealment. But, some lack of care or maintenance of discipline has to be made out. The penalty is for a sum not exceeding 500 rupees.

However, in this Section, the word ‘penalty’ is used, rather than the word ‘fine’. The object apparently is to restrict the court from imposing a sentence on the accused. The term ‘Harbour’ has been defined under Section 52 A of the code.

Abetment of an Act of Insubordination

Insubordination implies refusal to obey orders. Section 138 states that any person who knows it to be an act of insubordination abets any officer, soldier, sailor or airman in the Military, Naval, or Air Service of the Government of India in his act of insubordination. He shall be held liable and shall be punished with imprisonment which may extend to 6 months or with fine or both if an act is committed in consequence of such abetment. Section 138 says that any person who abets an officer in his act of insubordination shall be punished only if the act is committed as a result of such abetment.

Wearing Garb

Section 140 states that any person who not being a soldier, sailor or airman in the Military, Naval, or Air Service of the Government of India wears a garb or wears a dress which carries a token belonging to any such soldier, sailor or airman with the intention that it may be believed that he is such a soldier, sailor or airman. Such person is liable to be punished with imprisonment up to 3 months or with fine which may extend to 500 rupees or both. 

This Section forbids any person from misleading others by wearing such garb and giving an impression that he is a soldier. The intention of the accused wearing the garb of a soldier is of inducing others to believe that he is in service at the present time. Simply wearing a uniform or carrying a token without any specific intention is no offence. For instance, Actors put on costumes of various defence service personnel for their role. 

Classification of Offences

Proposals for Reform 

The Fifth Law Commission Report suggested certain reforms to be made under Chapter VII of the Indian Penal Code. Few recommendations are discussed as follows:

• The commission recommended that this chapter should not be confined only to Army, Navy and Airforce but should apply to all the armed forces in the Union of India. Accordingly, it proposed to change the heading of the chapter from offences relating to Army, Navy and Airforce to offences relating to Armed Forces. The commission also suggested that the terms ‘Army’, ‘Navy’, ‘Air Force’ should be comprehensively defined under a new Section 130A.
• The commission proposed to revise Section 131, the commission propounded that the punishment of life imprisonment given in cases where mutiny is not committed in consequence of abetment or where it is only an attempt to seduce an officer is ‘unduly heavy’. It proposed that, if any person abets the committing of mutiny by any officer of the defence service personnel, and if mutiny is committed as a consequence of such abetment be punished with death, or life imprisonment or rigorous imprisonment of 14 years and also with fine. In any other case, the punishment should be imprisonment of 10 years and fine.
• Section 135 does not differentiate between cases when the abetment of desertion happens and when the desertion takes place as a consequence of abetment. Accordingly, the commission recommended that under Section 135 where the offence of desertion actually happens, the punishment to be increased up to 5 years.
• It recommended that existing Section 137 be omitted because the Section ‘does not appear to be of any consequence’.
• It proposed to add Section 138A and Section 138B to this chapter, which relates to offences of ‘inciting mutiny or other act of insubordination’ and ‘dissuasion from enlisting and instigating to mutiny or insubordination after enlistment to armed forces’ respectively, punishable with simple or rigorous imprisonment for a term extending up to 3 years or with fine or with both.
• The commission proposed to increase the punishment in case of abetment in an act of insubordination when abetment is successful, from imprisonment for 6 months to extend it for a term up to 2 years.
• The commission also suggested to revise Section 140, in order to increase the punishment from imprisonment of 3 months to extend it for a term up to 6 months and also with an unlimited fine.

These recommendations of the Fifth Law Commission were given effect in the Indian Penal Code (Amendment) Bill, 1978. The Fourteenth Law Commission supported the proposed changes and even affirmed the substance of the 1978 Bill. Yet, these recommendations have not been converted into statutory provisions as the Amendment Bill passed in the Lok Sabha in 1978 lapsed, due to its dissolution.

Conclusion

The Army, Navy and Air Force have a certain set of principles for the officers serving in them, but Chapter VII of the Indian Penal Code is from the perspective of the civilians. This chapter talks about those offence of abetment which might be committed by a regular citizen in connection to an official of the defence service. The fundamental objective is to bring discipline among the officers of the Army, Navy and Air Force under the Government of India. However, it is somewhat confusing that despite the fact that these offences are made punishable, cannot be dealt with under the Indian Penal Code.

References

• Ratanlal & Dhirajlal, the Indian Penal Code, Pg- 277, (rev. Justice K T Thomas, M A Rashid, 35th ed. 2017).
• M&M 112, Ratanlal & Dhirajlal, the Indian Penal Code, Pg- 277, (rev. Justice K T Thomas, M A Rashid, 35th ed. 2017).
• 42nd Report, Fifth Law Commission of India, http://lawcommissionofindia.nic.in/ 1-50/Report42.pdf.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

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This article is written by Parth Verma, a first-year student at Symbiosis Law School, NOIDA. The author here explains in detail about theft and extortion and the difference in between these two terms. The author here helps in defining the thin membrane which cuts these two terms apart.

Theft

Section 378 of the IPC defines theft as, “Whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property to such taking, is said to commit theft”. There are five explanations to the said definition, mentioned in the code (IPC) which are further illustrated by 16 examples.

Hence we can say that section 378 of the IPC defines ‘theft’ as the dishonest removal of moveable property ‘out of the possession of any person’ without the consent of that person.

Intention

Intention (be it in any form, like dishonesty) in theft plays a major role. Hence, if B owes money to C for getting his car repaired and if C keeps the car with him lawfully, as a security for a debt, and B takes the car out of C’s possession, with the intention of depriving C of the property (car) which acted as a security for B’s debt, B commits theft, in as much as he takes it dishonestly. Thus, it can also be concluded from the above situation that a person can be convicted of stealing his property if he takes it dishonestly from another.

However, Section 378 (Illustration clause ‘p’) suggests that when anything is taken under a claim of right, provided that claim is fair, good and bona fide, the thing so taken, cannot be dishonest. Thus, such taking cannot amount to theft.

Fine For Theft

Section 379 of the IPC, penalizes ‘theft’. It lays down the punishment for theft as either imprisonment for a term (which may extend to three years), or with fine, or both.

Ingredients for Theft

Theft has the following defining ingredients which must be proved in a given case, namely:

• Dishonest intention to take the property;
• The property must be moveable;
• It should be taken out of the possession of another person;
• It should be taken without the consent of that person;
• There must be some moving of the property to accomplish it’s taking;
• In the name of justification to theft, if a man in extreme want of food or clothing steals either to relieve his present necessities, the law allows no such excuse to be considered.

In other words, as per law, one can’t steal no matter what.

Movable property

The subject matter of theft must be moveable property. It must not be a static one (immovable property). Moveable property is defined in Section 22 of the IPC.

Animals

While mentioning above about the movable property in section 378, it also includes ‘animals’ in its definition. The section itself explains the matter related to animals. 

Any animal which is a pet, i.e. any animal within the possession of the owner is considered to be the property of the owner. Any property, which is taken away from the owner without the consent of the owner, amounts to theft.

Hence if A, being Z’s servant is entrusted by Z with the care of his dog takes and sells the dog to some other party, without Z’s consent. Here A’s act will amount to theft.

Section 379 of IPC as mentioned earlier, quotes punishment for theft as imprisonment for a term up to three years, or fine, or both.

As in any other theft case, the procedure here remains the same. When a person

approaches the police station with a complaint regarding the theft of an animal (pet), the complainant must give a detailed description of the lost animal and if possible, along with the photograph. It should be immediately filed as an F.I.R, a copy of which should be duly signed, stamped and dated, along with the time and should be handed to the complainant. The duty officer of the police station is responsible for making all the necessary entries. The complainant has the right to file an F.I.R. Hence animals under movable property’s definition are capable of theft.

Fish

Fish in their free state are regarded as ferae naturae (a Latin word meaning, of a wild nature. Animal (roaming freely) is not the subject of absolute ownership. A qualified property in such animals might be acquired by taking or taming them or while they are on one’s estate), but they are said to be in the possession of that person who has possession of any area full of water like a tank. Fishes are also regarded as being in the possession of a person who owns an exclusive right to catch them in a fishery, but only within that spot. Thus, theft can be said to have been committed if fish from a tank which is in the possession of its holder, is caught by the offender without the consent of the owner.

Human corpse

Dealing with a human corpse in IPC can be considered to be a special case. There can be many arguments to support this statement like a dead body is not a “person” in the eyes of the law. Hence, it not being a person, removal of moveables from a dead body can not amount to theft. To be considered theft, the movable property has to be taken out of the possession of any person without his consent and a dead body is not a person. Removing ornaments from the dead body hence, can not be equated to the removal of ornaments from the possession and consent of a person. However, the proper provision to deal with this kind of a case is Section 403 of IPC (Criminal misappropriation).

Electricity

Theft of electricity is a cognizable offence and police can investigate without any complaint by the electrical inspector. The investigation does not require any complaint filed by the person aggrieved by the theft or at the instance of the government.

Possession

As per Salmond, possession means, “the continuing exercise of a claim, to the exclusive use of a thing constitutes the possession of it”. Possession means, “the state of having, owning, or controlling something”. Although there are many kinds of possessions, some of the most important ones are constructive and joint possession.

Constructive Possession: It refers to situations where a person has no hands-on custody of an object. It can also be said that constructive possession exists where a person knows an object and the ability to control it (object), even if the person has no physical contact with it.

Joint Possession: Under this, there are two points to be considered, which are as follows:

• Mere Custody doesn’t Amount to Possession;
• Temporary Deprivation or Dispossession is also Theft.

For any act to come under the definition of theft, it must make sure that the property must be taken out of the possession of its holder without his/her consent.

Dishonest Intention

Intention (be it in any form, like dishonesty) in theft plays a major role. Hence, if B owes money to C for getting his car repaired and if C keeps the car with him lawfully, as a security for a debt, and B takes the car out of C’s possession, with the intention of depriving C of the property (car) which acted as a security for B’s debt, he commits theft, in as much as he takes it dishonestly. Thus, it can be concluded from the above situation that a person can also be convicted of stealing his property if he takes it dishonestly from another.

However, Section 378 (Illustration clause ‘p’) suggests that when anything is taken under a claim of right, provided that claim is fair, good and bona fide, the thing so has taken, cannot be dishonest. Thus, such taking cannot amount to theft.

One of the ingredients to the offence of theft is dishonest intention to take property. The intention is one of the most important deciding factors which helps in making sure that the given act is theft. The intention to take dishonestly must exist at the time of the moving of the property.

Without Consent

For better understanding on the concept of free consent and what constitutes of free , please click here. The con­sent could be implied or express. Further, it may be of the person in possession, or by any person having implied or express authority for that purpose.

Another example of this could be where A asks for charity from Z’s wife. Z’s wife gives A money, food, and clothes, of which A is aware that they belong to Z, her husband. Here A may think that Z’s wife is authorized to give away alms (money or food given to poor people). If this was A’s intention in the form of an impression then he has not committed theft.

The case would have been entirely different if, A was an illicit lover of Z’s wife and she (Z’s wife) gives a valuable property, which A knows to belong to her husband Z, and Z has not given authority to his wife to give that property away at her discretion. Here if A takes the property (dishonestly), he commits theft.

Moving or taking

A puts a treat for B’s dog to induce the Z’s dog to follow him. Here, if A intended to dishonestly take Z’s dog out of Z’s possession without his consent, A has committed theft as soon as Z’s dog had begun following him.

If A meets a bullock carrying a box of treasure and he drives that bullock in a certain direction for dishonestly taking the treasure in his possession, A commits theft of treasure, as soon as the bullock begins to move.

Difference between Larceny and Theft

Going by the literal definition, larceny is illegally taking away somebody’s personal property, with a depriving intention. Theft, on the other hand, is an act of taking of property with an intent to deprive the rightful owner of it. Hence we can conclude that larceny is a kind of theft restricted to personal property. Further, we can hence conclude that theft is an umbrella term under which lies larceny. Hence we conclude that larceny and theft are two entirely different things.

Punishment for Theft

Section 379 of the IPC establishes the punishment for theft as imprisonment up to 3 years or fine or both. Other succeeding provisions contain more severe punishment for theft under aggravating circumstances. For example, Section 380 of IPC punishes the commission of theft in a building, tent or vessel used for dwelling or residence. The object of this provision is to provide greater security to properties in dwelling premises. The punishment for this is imprisonment up to 7 years along with fine.

Aggravated Forms of Theft

Robbery

According to Section 390 of IPC, there is theft in every robbery. In other words, robbery is an aggravated form of theft. Theft essentially means to take a movable property out of a person’s lawful possession without obtaining his consent. Robbery generally takes place when, while committing theft, the offender, either attempts to actually cause or merely cause fear of instant death/hurt/wrongful restraint to any person.

Thus, theft becomes robbery when the offender commits any of the above acts while committing theft. It can also happen when he completes the theft and tries to move the property away.

Dacoity

Dacoity is the aggravated form of robbery which inturn is an aggravated form of theft. Dacoity is said to take place when robbery is committed by 5 or more people and they all share common intention.

Extortion

In literal terms, extortion refers to the illegal practice of obtaining anything by the means/usage of threat or force. Section 383 of IPC defines extortion as, “whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property, or valuable security or anything signed or sealed which may be converted into a valuable security, commits extortion”.

For example;

If A threatens to publish a defamatory statement concerning Z unless Z gives him money. A thus induces fear in Z to give him money. Hence, A has committed extortion.

If X sends club-men to threaten Z unless Z signs and delivers the required bonding to the club-men. Here X commits extortion.

If X threatens Z that he/she will keep the child of Z under wrongful confinement and tells Z that it can be avoided only when Z signs and delivers the promissory note to X. This note states that Z needs to pay certain money to X. Here, X commits extortion.

Ingredients

For any offence to be extortion it must have the following ingredients:

1. Putting a person in fear.
2. The fear so caused must be a fear of injury either to himself or to people of his interest.
3. The fear must be caused intentionally.
4. As a consequence of the exercised fear, the person put in fear must be induced by the offender to deliver any property or any valuable security or anything signed or sealed to any person which is capable of being converted into a valuable security.
5. The offender must act dishonestly in doing so, i.e., he must act to cause wrongful gain or wrongful loss.

Theft and Extortion: Distinction

The offence of extortion differs from the offence of theft in many ways as these two terms are entirely different from each other. The following are some differences:

Delivery of property is a major distinguishing factor when it comes to distinguishing between theft and extortion. In theft, the property is removed or taken away without the consent of the person who has possession of the concerned property. In the case of extortion, there is a delivery of property with consent which is wrongfully obtained, by inducing fear.

Immovable objects and moveable objects both can be made the subject matter of extortion. However, in case of theft, and only movable object can be the subject matter.

Another important distinguishing factor is the mode of delivery of the property:

In case of theft, the property is taken by the offender without the consent of said property’s holder. Hence we can conclude that the property in case of theft is delivered by the offender to himself. However, in case of extortion, the property is delivered to the offender by the person having possession of the said property because he/she is induced to fear of injury either to him/her or to the person of his/her interest. Hence, the delivery of property in extortion is done by obtaining the consent of the property’s holder, but wrongfully.

Sri Hari Singh Gour in his book, “The Penal Law of India” has explained and distinguished the offence of extortion in the following words: “The intimidation by which the extortionist dishonestly victimises another is the principal distinguishing feature of the offence which is otherwise allied to cheating and theft and other offences of which the object is dishonest deprivation of property”.

The offence of extortion is more like cheating than like theft since cheating is also capable of being committed in respect of immovable objects.

In a nutshell, it can be concluded as:

Conclusion

Hence, we saw that Theft and Extortion are two entirely different things, despite their similar appearance. Both have different ingredients. The intention is the gist of theft, whereas it’s not the case with extortion. We saw what is possession. Now it is clear that larceny is illegally taking away somebody’s personal property, with a depriving intention. Theft, on the other hand, is an act of taking of any property with an intent to deprive its rightful owner. Hence, we can conclude that larceny is a kind of theft restricted to personal property. Punishment for both, theft and extortion under IPC is either imprisonment of three years or fine or both. Aggravated forms of theft include robbery and dacoity. An ethical message to the readers, let’s become that generation in which these terms don’t exist. Let’s not be a mere paper generation who can write on paper good things, but let’s be doers of the word. Let’s create an atmosphere where we don’t find such a term’s usage anymore. Let’s be the best citizens the world has ever seen. Let’s do our job of law, to the best level possible. Let’s give this world, new hope. Let’s be a new hope-giving light to this world. Let’s be that source of light that shines forever and in whose light nations come. Nations receive the glory which we carry. People get enchanted when they come to India and be thrilled by our country and be like this is the kind of country we want ours to be. On this note I conclude my article.

References

• https://indiacode.nic.in/bitstream/123456789/4219/1/THE-INDIAN-PENAL-CODE-1860.pdf
• http://lawtimesjournal.in/theft/
• https://shodhganga.inflibnet.ac.in/bitstream/10603/132472/10/10_chapter%205.pdf
• http://www.awbi.org/awbi-pdf/APL.pdf 
• https://legal-dictionary.thefreedictionary.com/Constructive+Possession
• http://www.shareyouressays.com/knowledge/the-most-essential-ingredients-of-thefts-378-indian-penal-code-1860/111710https://www.quora.com/Burglary-dacoity-robbery-and-theft-are-all-different-crimes-under-the-IPC-How-do-we-differentiate
• http://devgan.in/ipc/?a=ipc&q=extortion
• http://www.shareyouressays.com/knowledge/what-are-the-main-ingredients-of-extortion/120076
•  http://lawtimesjournal.in/difference-between-theft-and-extortion/
• https://www.academia.edu/4364238/Differences_Between_Theft_And_Extortion
• https://www.lawnn.com/difference-theft-extortion/

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

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The article has been written by Ayush Verma, 2nd year student at RMLNLU, Lucknow. The article provides the descriptive understanding of bail with the help of various provisions and case laws.

Introduction

The term “bail” has not been defined under CrPC. It is a security given by the accused that he will appear before the court for answering the accusations that have been made against him and include personal bonds and bail bonds. An arrested person is trusted to his sureties upon their security that the said person would appear at the designated place and time, to the jurisdiction of the court. The sureties to whom the arrested person is delivered become the bailor as they are responsible for his presence when required. A person is bailed on the bond given by the sureties and the surety must have an authority to bail the arrested person.

Meaning of bail

Bail is derived from the old French word “ballier”, which means to give or deliver. According to the Cambridge Dictionary, bail is an amount of money that a person accused of a crime pays to a law court so that he can be released until his trial. The payment is a way of making certain that the person will be available to the court for trial. In simpler words, a sum of money given as a guarantee that a person will show up before the court for hearings.

Objective of bail

According to the legal principle of presumption of innocence, a person is innocent until proven guilty. So, the concept of bail is to acknowledge this principle that a person should not be put behind the bars unless his guilt is proved. Therefore, bail is granted to such a person where he is left free of the custody or imprisonment. However prima facie (at first sight), there is a presumption of guilt in the cases of criminal offence, therefore, the conditions are put on the bail that the person would have to appear in court on the fixed date and time when called for. The purpose of such appearance can be an appeal for revision, to plead guilty, or to give evidence etc. The provision also seeks to ensure that the personal liberty of the person granted under Article 21 of the Constitution must not be curtailed, until the person is found guilty.

Classification of offences

There are two types of offences under Section 2(a) of CrPC: bailable and non-bailable.

Bailable offence

According to Section 2(a), an offence which is shown in the First Schedule of CrPC as bailable, or which is made bailable by any other law in force would be a bailable offence. First Schedule consists of two parts: the first part relates to offences under the Indian Penal Code and the second part deals with offences under other laws. The second part says that offences that are punishable for less than three years or with fine only are bailable offences. Some examples of it would be bribery or public nuisance etc. In this type of offence, bail can be claimed as a matter of right, as they are less severe.

Non-bailable offence

According to Section 2(a), any offence which is not included in the First Schedule as a bailable offence is non-bailable offence. In the second part of the First Schedule, the offences that are punishable with death, imprisonment for life or imprisonment for more than seven years are defined as non-bailable offences. In this type of offence, a person cannot be bailed as a matter of right but can request the court to grant bail. The discretion is vested with the court to grant bail or not, subject to the conditions mentioned in Section 437.

Release on bail

Circumstances in which release on bail is important

There are certain circumstances when the release on bail is extremely important. Such circumstances are those where the accused person is:

• less than sixteen years old;
• woman;
• sick or infirmed.

Cases other than those of non-bailable offence

According to Section 436, a person who is accused of an offence other than non-bailable offence, is arrested or detained without a warrant and is prepared to give bail, such person shall be released on bail. The bail in this case may be granted by the police officer having custody of the accused or by the court.

In the case of Rasik Lal v. Kishore, the Supreme Court held that in case of bailable offences, the right to get bail is absolute and if the person accused is prepared to give bail, the court or the police officer is bound to release him.

Procedure: A person needs to fill Form 45 given in the First Schedule and have to apply it to the court for getting bail.

If investigations are not completed within the prescribed number of days

In the case of Uday Mohanlal v. State of Maharashtra, the Supreme Court held if the investigation agency is not able to complete the investigation within the period prescribed in Section 167(2), the person accused is entitled to bail, if he is prepared to and furnishes the bail to the magistrate.

No reasonable grounds for believing the accused guilty of a non-bailable offence 

Under Section 437(2), if at any stage it appears to the court or the officer that the person has not committed a non-bailable offence on reasonable grounds, and there are sufficient grounds for further enquiry, the accused shall be released on bail till such enquiry is pending, subject to the provisions of Section 446A. Such release by the court or police officer can be given on a bond of the person without sureties.

Trial not concluded within 60 days

According to Section 437(6), in a case triable by a magistrate, the person accused of a non-bailable offence is entitled to bail if his trial did not conclude within sixty days from the first date on which evidence was to be taken, and the person was in custody for the whole time.

After trial but before judgement

According to the Section 437(7), a person can be granted bail in case of a non-bailable offence, after the trial but before judgement, if the court finds reasonable grounds showing the innocence of the person, on the execution of bond for his appearance to hear the delivered judgement.

Post-conviction bail

Section 389 lays down the rule for getting bail after conviction. It says that a person can be granted bail after conviction if the sentence awarded by the trial court is less than three years. Such bail can be granted even by the trial court by suspending his sentence, during the pendency of the appeal. However, if the sentence is more than three years, bail can be granted only by the appellate court.

Discretion in granting bail in cases of non-bailable offenses

The discretion to grant bail in non-bailable offences is vested with the court under Section 437 of CrPC.

Exceptions in granting bail

There are certain exceptions given in Section 437 in which bail cannot be granted to the accused person. These exceptions are:

• Where a person has been convicted of an offence that is punishable with death or imprisonment for life, or
• Where a person is a habitual offender and has been previously convicted of offences punishable with three years or more.

Requisite conditions to grant bail

Under Section 437(3), certain conditions are imposed by the court while granting bail where the accused is punished with imprisonment of more than seven years, or abetment, conspiracy, or attempt to commit any such offence:

• That such person shall act, according to the conditions of the bond.
• That such person shall not commit an offence similar to the one he is accused of.
• That such person shall induce any other person to not disclose the facts regarding the case, or tamper with the evidence.
• Other conditions may also be imposed in the interests of justice.

Powers of High Court or Court of Session

Section 439 talks about the powers of High Court or Court of Session in granting bail. They may coordinate:

• That an accused person in custody be discharged on bail, and if the offence is of the nature included in subsection 3 of Section 437, may enforce any condition that it considers fundamental for reasons given in the said sub-section.
• That any condition imposed by a magistrate be set aside or may modify them.

Also, according to Section 439(2), it may direct the person discharged on bail to be arrested and taken in custody.

Cancellation of bail

Section 437(5) provides that, any court which has discharged a person on bail as per subsection 1 and 2 of Section 437, if the court finds it necessary to do so, may direct that such person be arrested and taken in custody. It must be noted that the court which has given the bail may only cancel it, under this subsection. In a case where bail has been granted by a police officer, bail cannot be revoked by the court. In such a case, bail has to be revoked by invoking the powers of High Courts in Section 439.

The cancellation of bail under Section 439 does not require some pre-conditions. It’s just a discretionary power given to the High Court or Court of Session. The court, however, bases its cancellation on subsequent events that take place after the release of a person in bail. In the case of Surendra Singh v. State of Bihar, Patna HC laid down certain grounds on which bail may be cancelled:

• Where the accused is found to be tampering with the evidence either during investigation or trial.
• Where the accused commits a similar offence or some other heinous offence.
• Where the accused absconds and the trial gets delayed due to such act.
• Where the offence committed by the accused has caused severe law and order problems in the society.
• Where the High Court finds that lower court has wrongly granted the bail.
• Where the accused misuse the privilege of bail.
• Where the life of the person accused is in danger itself.

Anticipatory bail

Object

The provision of anticipatory bail was brought to prevent the gross misuse of powers of arrest. There were a lot of cases being filed in the court which led to innocent people being arrested without any fault. Therefore, this provision prevents such arrests. However, if a person is found guilty, the person may be arrested. So the whole idea of anticipatory bail is to prevent unreasonable arrest.

Meaning

Anticipatory bail has not been defined under CrPC. It is a misnomer. Section 438 talks about the anticipatory bail. It is stated as “Direction for grant of bail to person apprehending arrest”. From its wording only, it can be inferred that the bail is given in anticipation of arrest. Here, bail is granted even before a person is arrested. 

Jurisdiction of Courts

In Section 438, the words are clear that the person may ask for anticipatory bail from a High Court of a Court of Session. Therefore, the two courts have been given the power to grant anticipatory bail.

Reasonable apprehension of arrest for a non-bailable offence

A person having a reasonable apprehension that he might be arrested on accusation of non-bailable offence, may apply to the High Court or Court of Session to grant him bail. The bail can be granted by taking into account several factors given in Section 438:

• Nature and gravity of the accusation.
• History of the person, taking into account whether such person was previously convicted in respect of a cognizable offence.
• Possibility of the applicant to evade justice.
• Whether accusation was made with the intent of injuring or humiliating the applicant by having him arrested.

Wide discretion in granting anticipatory bail

There is a wide discretion vested with courts in granting anticipatory bail due to the presence of the term “may, it thinks fit” in Section 438. Such bail must be granted after taking into account the facts and circumstances of the case and by the imposition of conditions that the case may warrant.

Requisite Conditions

There are certain conditions on which anticipatory bail is granted by the court. These conditions are given in Section 438(2) as:

1. That the person shall be available to a police officer as and when required.
2. That the person shall not induce any person for not disclosing the facts of the case.
3. That the person shall not flee from India without the previous permission from the court.
4. Conditions under subsection 3 of Section 437 may be imposed as if the bail were granted under the said section.

Reasons to believe

There must be a reason for a person to believe that he might be arrested for committing a non-bailable cognizable offence. In the case of Adri Dharan Das v. State of Bengal, the court held that the reason to believe must be on the reasonable ground and not the whims and fancies of the applicant.

No “blanket order” of anticipatory bail

No blanket order can be passed giving anticipatory bail to the applicant without looking into the offence he has committed. The applicant should be able to show specific accusations on which relief can be given to him. An order must not interfere with the rights of police to investigate the matter.

Interim order and notice to Public Prosecutor

An interim order under Section 438 can be passed without giving notice to the public prosecutor in urgency cases. But the notice should be issued to the Government advocate or the public prosecutor simultaneously. In such a case, the order of giving bail should be re-examined taking into concern the contentions of both the parties.

After the amendment of 2005 in the CrPC, it is mandatory to hear the public prosecutor before granting anticipatory bail.

No anticipatory bail after arrest

No anticipatory bail can be granted once a person is arrested. This provision is only available before an arrest. After an arrest has been made, a person then needs to apply under Section 437 or 439 to get bail but cannot apply under Section 438.

Cancellation of anticipatory bail

Section 439(2) relates to cancellation of the anticipatory bail. Though there is no specific provision under CrPC for cancelling an anticipatory bail, it can be implied that the court which has the power to grant such bail also has the powers to revoke that bail. The power to grant anticipatory bail shall not be abused in any manner. Courts have opined that the power to cancel such bail must be exercised to meet the ends of justice.

Powers of Appellate Court to grant bail

Under Section 389, if an appeal filed by the convicted person is pending, the Appellate Court may after recording the reason in writing, order that the sentence or order against the person be suspended, and if the person is in confinement, that person be released on bail or on his own bond. However if the if the person is sentences with death, imprisonment for life or imprisonment not less than ten years, give the opportunity to the public prosecutor to show cause against such release. The bail can only be granted by the Appellate Court where the accused person is:

• already on bail, and the sentence given to him is not more than three years imprisonment, or
• where the offence committed by him is a bailable one.

However, there must not be any special reasons for refusing such bail. Under this provision, the intention of the applicant to file for appeal is a sufficient reason for releasing him.

It must be noted that bail under this Section is for a limited period only and can only be granted to a convicted person.

Power of the courts of revision to grant bail

The High Court or the Court of Session in the exercise of its revisional powers under Section 397 can ask for examining the record of any proceeding by an inferior court to check its legality, correctness or propriety. While doing so, the courts may direct that the execution of the sentence or order be suspended, and where the accused is in confinement, that the person be released on bail or on his bond pending the examination of the record.

Power to grant bail where a reference has been made to the High Court

When a reference has been made to the High Court under Section 395 by a magistrate for getting an opinion on any act, regulation or ordinance or any other section under the CrPC, the magistrate may during the pendency of such reference, either commit the accused to jail or release him on bail to appear when called upon. Such discretion by the magistrate may be made after taking into account the nature and severity of the punishment provided in that act, regulation or ordinance.

Cancellation of bail granted by High Court

Neither the Magistrate nor the Sessions judge has the power to cancel the bail granted by the High Court under Section 438 unless the order passed by the High Court is temporary or applies only to a certain stage in the proceedings. Such power may be available if the new circumstances arise during the trial after bail has been granted by the High Court.

Bail-bond

A bail bond is a document where a prisoner and one or more sureties guarantee to pay an amount fixed by the court for release of the prisoner, that he would attend the hearings of the charge that has been made against him.

There are two types of bonds:

• Personal bond: This is the bond stating that the person shall appear when called for the hearings. Here the accused doesn’t have to post but forfeits the amount if he fails to appear before the court according to the bond.
• Surety bond: In this type of bond, a person furnishes his bond with one or more sureties, and in such a case, if the person fails to attend, then the sureties would be made liable to pay the amount for his absence.

General provisions regarding bond of accused and sureties

Amount of bond and reduction thereof

Under Section 440, the amount of every bail bond executed in this chapter shall be fixed after taking due consideration of the circumstances of the case and the bond, in any case, should not be excessive.

Also, the High Court or Court of Session has the powers to direct the bail given by a police officer or a magistrate to be reduced.

Condition and execution of bonds

Section 441 deals with the provision relating to the condition and execution of a bail bond. Before releasing a person on bail or on his own bond, a bond must be executed by that person, and such bond shall be according to the police officer or court, as they think fit. 

Also, if the person is released on bail where a bond has been given by one or more sufficient sureties, it must be made sure by the sureties that such person shall attend according to the time and place mentioned in the bond and shall continue unless otherwise asked by a police officer or the court.

If any other condition is to be imposed for the release of the person, such condition shall also be there in the bond. Such a bond may also require the released person to appear before the High Court, Court of Session or other courts for answering the charge.

For checking that the sureties are fit, the court may require them to file the affidavits for such fitness and sufficiency, and may also order an inquiry itself or by the magistrate to check their fitness or sufficiency.

Declaration of bond

As per Section 441A, every person acting as surety for the accused must declare before the court the number of persons to whom he has stood as security including the accused and should give therein all the relevant particulars.

Discharge from custody

Section 442 deals with discharge from custody. It says that as soon as a bond is executed for release of the person, such person shall be released, and if he is in jail, then the court in which the bond was executed shall direct the police officer of that jail to release the person, and the police officer may do so on receiving the receipt of that order.

Sufficiency of sureties and discharge of sureties

According to Section 443, if a person acting as surety is insufficient or is afterward found insufficient, then the court may issue a warrant for arrest of the accused person and ask such a person to get a sufficient surety, and if he fails to do so, then the court may commit him to jail.

Section 444 deals with the discharge of the sureties. It says that any of the sureties or all of the sureties joint may anytime for the appearance or the attendance of a person, apply to a Magistrate for wholly discharging their bond or in its relation to the applicant. 

On such request, the Magistrate for the arrest of such a person and to be brought before the court, and shall direct the bond to be discharged on appearance of the person in so far as it relates to the applicant, and ask the applicant to find another sufficient surety or sureties, and in his failing to do so, may commit him to jail.

Bond in case of a minor

Section 448 talks about the bond required from a minor. Where the person who is to be released is a minor, then the bond should be executed by a surety or sureties only. A minor himself cannot get a bond executed for his release.

Landmark cases on bail

Hussainara Khatoon v. State of Bihar

This case dealt with the rights of the under trial prisoners, concerning habeas corpus rule.

Facts of the case: A petition of habeas corpus was filed regarding the administration of jails in the State of Bihar. It was found that a large number of prisoners including men, women, and children were put behind bars for years, awaiting their trial. Many of those prisoners had committed offences, for which they would have been given punishment not more than a few months or in some cases, two years, but they were behind jail for three to ten years and that too without any trial. 

Here the court wanted the immediate release of those prisoners. Court said that fairness under Article 21 is impaired where a person is not given a speedy trial, where a person is not given pre-trial should be released on bail on a personal bond, where the person accused is indigent and there are no chances of him to abscond, where a person has been kept under trial for a time greater than the punishment he would have been awarded, where he is not given free legal aid, and where he is too poor to engage a lawyer, provided that the lawyer given by the state is not objected by him. 

Regarding personal bonds, the court said that where a person has roots in the community and is not likely to abscond, the person shall be released. Court asked to take the following factors for ascertaining his roots in the community:

• His length of residence in the community.
• His employment status, history, and financial condition.
• His family ties and reputation in the community.
• His prior criminal record.
• The nature of offence committed, the apparent probability of conviction and the likely sentence.

Moti Ram v. State of MP

In this case, a poor mason was convicted. The apex court referred the matter to Chief Judicial Magistrate (CJM) to release him on bail, without making any specifications as to sureties, bonds etc.

The CJM fixed Rs.10,000 as surety and bond and subsequently refused to allow his brother to become surety as his property was in the adjoining village. The petitioner challenged it to the apex court.

Justice Krishna Iyer criticized the actions of the judge and said that the courts should be inclined to bail, not jail. The court said that the accused cannot be asked to furnish surety from the same district where the offence is being tried. Court further emphasized that bail can be given on personal bonds, as well as on sureties bond; the court shall also keep in mind the condition of the person while fixing the amount of the bond. And where an indigent person is involved, the court should be liberal in releasing them in the personal recognizance.

Bench-hunting or Forum-Shopping

Bench hunting refers to an offer by a litigant, along with its lawyers, to refer their matter to be heard by a specific judge or a bench to get a favourable order or judgement. It is also known as forum shopping. It can happen in three ways:

• By seeking a case to be referred to a specific judge,
• By avoiding a specific judge, or
• By writing a bogus complaint to Chief Justice of India to get an honest judge removed from a specific case.

Emerging trends in granting bail

The major changes relating to bail have been witnessed in the cases of anticipatory bail which has evolved over a period of time. The first case which laid down the principles for granting bail was Sibbia v. State of Punjab. Here, the court held that the power of granting anticipatory bail under Section 438 is extraordinary and cannot be exercised unless there are special circumstances. The court also said that such discretion should not be exercised in cases involving serious economic offences, due to public interest.

However in the recent case of P. Chidambaram v. Directorate of Enforcement which was a case involving serious economic offence, the court granted bail to P. Chidambaram saying that the availability of the appellant for further investigation, interrogation and facing trial is not jeopardized and he is already held to be not a ‘flight risk’ and there is no possibility of tampering the evidence or influencing the witnesses. The issue has been widely dealt here.

Conclusion

It is now clear that the primary objective of granting bail is not to release a person but to ensure that the person appears for the trial. The provision is also brought to prevent the personal liberty of a person and to make sure that no malicious complaint is filed. However, this is not an absolute right but subject to various limitations.

References

• https://www.lawyersnjurists.com/article/general-study-bail-crpc-laws/
• https://lawtimesjournal.in/anticipatory-bail/
• https://www.lawyersclubindia.com/articles/The-basic-rules-for-grant-or-denial-of-bail-under-CrPC-8996.asp
• https://economictimes.indiatimes.com/news/politics-and-nation/supreme-court-grants-bail-to-chidambaram-in-inx-media-case/articleshow/72359875.cms

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This article is written by Saurab Verma student of 2nd year persuing B.A.LL.B. from Dr. Ram Manohar Lohiya National Law University, Lucknow.

Introduction

Sexual offences as we all know are basically the offences related to physically harm the private or the sexual parts of a woman. These offences include offences like rape, child abuse, gang rape, sexual harassment etc. This article will wholly cover the ambit of the provisions related to sexual offences under the Indian Penal Code, 1860. In this article, the main focus will be on the provisions related and the way these provisions have been interpreted by the courts along with the need to reform some provisions given under IPC. This article is gender-neutral and not biased only towards women because the law is equal for both men and women.

Rape 

Rape in India is now a common crime than murder. If we see in terms of crime rate, India stands at 2.2 in terms of murder while stands at 5.2 in terms of rape according to the National Crime Record Bureau(NCIB) till 2017 even if we exclude the other sexual offences like acid attacks, sexual harassment, voyeurism(practice of spying of people involved in intimate behaviours), disrobe a woman etc. Also, these crime rates are made according to the cases filed in the court but what about those incidents which are never reported in the police station due to illiteracy, lack of awareness, fear of respect, fear from society, just think of that. Also, we cannot blame the laws related to sexual offences because now the courts after the outrage of the severe cases, especially after the Nirbhaya case have made very important amendments like they have widened the definition and scope of rape because earlier the definition was just restricted to the ‘Sexual Intercourse’ which was interpreted as “Mere slightest or partial penetration of the male organ with the labia majora or the vulva or pudenda is sufficient to commit a rape” but after The Criminal Law Amendment Bill, 2013 they have explained the whole definition and made it very clear. Now, the definition of the term “Rape” under Section 375 of IPC is defined as “ A man is said to commit a rape if he penetrates his anus into any extent into the vagina, mouth, urethra or anus of a woman or inserts any object, to any extent, or any part of a body other than the anus into the vagina, urethra and anus of a woman or applies his mouth into the vagina, urethra or anus of a woman or makes her to do so with him or any other person”. Also, this definition is further subjected to the several circumstances like if the act is done against her will or without her consent or if the consent is taken by coercion or if the consent is obtained by fraud or if the consent is obtained when the girl was in intoxication or was unsound at that time or obtaining the consent of a girl which is not able to communicate and the most important when the act is done with or without the consent of a girl below 18 years of age. After, the Nirbhaya case, the age of consent was extended from 16 years to 18 years because the court believed that even at the age of 16, the girl is capable of giving the consent and the accused is also capable of the act which he is doing and therefore he should not be prosecuted under the Juvenile Justice Act.

Essential ingredients

As stated above, there are basically seven essential ingredients to constitute a rape-

• Against her will;
• Without her consent;
• With consent obtained by putting her or any other person in whom she is interested under fear of death or of hurt;
• With consent given under a misconception of fact that the man was her husband.
• Consent is given by the reason of unsoundness of mind, or under the intoxication of any stupefying or unwholesome substance;
• Women under the age of eighteen with or without consent;
• When a woman is unable to communicate consent.

‘Against her will’ 

The term “will” basically implies the desire of whether to do any act or not. However, both these expressions ‘Against the will’ and ‘Without the consent’ sounds similar but there is a difference between them because an act is done’ Against the will’ is obviously ‘without consent’ but its converse is not true. The concept of ‘Against her will’ was first explained by the court in the case of Chotelal vs State of Uttar Pradesh, where it was held that ‘Against her will’ means that the sexual intercourse has been done despite the woman has resisted and has opposed to the intercourse.

‘Without Her Consent’

The term ‘Consent’ basically means the voluntary agreement by the words, gestures, direct or indirect form, a verbal or non-verbal form of communication to engage herself in sexual intercourse. It is the most essential element to constitute rape because consensual intercourse does not amount to rape, and obviously, if the intercourse has been done by the consent, then, it defeats all the provisions related to sexual offences under IPC. Also, there is no obligation on the man to prove that whether the consent was there or not at the time of the intercourse the burden of proof is on the woman to proof for the consent. However, it has been interpreted by the courts that have incorporated in several sections of the IPC that consent obtained by misrepresentation or fraud is not consent. The focus related to this ingredient should be on the cases where prostitutions are involved because it involved consent in return of the monetary consideration by the man, therefore, if we see technically and according to the legal provisions, this is valid but actually, prostitution is illegal, therefore, the legislation should be made on the prostitution under IPC that whether consent obtained in return of money is a consent or not.

‘Consent Obtained under Fear of Death or of Hurt’

Section 375(c) of the IPC asserts that consent of the woman in order to exonerate the accused of the charge of rape must be given freely and voluntarily without any fear of death or injury. In such a case the consent obtained will not be valid consent. The scope of the clause has been widened by the Criminal Law (Amendment) Act 1983 by the insertion of the words “or any person in whom she is interested” after the words “putting her” in fear of death or hurt in the clause. In the case of Prakash vs State of Maharashtra, where there was sexual intercourse with the wife by the businessman and policeman where they obtained the consent because they started beating her husband. The court held them liable and said that the actual force is not necessary but a threat to use force is sufficient to obtain the consent for intercourse.

‘Consent Obtained by Fraud’

As incorporated in Section 375(4) of the IPC that consent given by a woman to a person for intercourse believing the person to be her husband whereas, in fact, he is not her husband, is no consent in law. In such a situation the person knows the fact of deception and pretends to be the husband of the woman. These cases are basically related to the bigamy which means that at the time of the marriage, the accused has another spouse living and the consent is obtained by making believe to his wife that he is unmarried to obtain the consent for sexual intercourse with the victim. Its applicability is interpreted by the court in the case of  Bhupinder Singh v. Union Territory of Chandigarh, where the complainant Manjit Kaur married the accused Bhupinder Singh, who she had met through work, in 1990 and they engaged in the intimate relations. Later, she became pregnant but accused made her abortion in 1991. When she was pregnant again in 1994, she met her husband’s two friends who told her that he was already married and had children from his first wife. On being confronted her husband left her on the pretence of work and did not turn up even after she gave birth to a daughter. She made a complaint and he was held guilty of rape because prosecutrix married accused without knowledge of his first marriage. The consent for cohabitation was given under the belief that the accused was her husband. It was also held that delay in lodging complaint by prosecutrix couldn’t, in any event, wash away the offence because there was no consent. Therefore, the Supreme Court refused to interfere with the order of conviction passed by the High Court.”

Is Promise to Marry the Victim a Misconception of Fact Viciating her Consent?

There is a difference between a ‘breach of a promise’ and ‘a false promise’. Breach of promise is done in a bonafide form, where the consent to engage in sexual intercourse is made by making promise to marry but later the situations and circumstances are such that later he refuses to marry, that does not amount to rape because the intention was good at the time of the intercourse and he genuinely wanted to marry her later whereas ‘false promise’ includes the consent obtained only for having sexual intercourse with a woman and is having mala fide intention at the time of obtaining the consent, and where promise to marry was used as a tool to obtain the consent, therefore, this amounts to rape. Therefore, it totally depends upon the intention of the man or a woman, however, the burden of proof is on the woman to proof the mala fide intention of the man to prevent the man from being accused against the malicious and false proceedings against them. 

Consent of an Insane or Intoxicated Woman

Section 375(5) of the IPC states that if the consent has been taken of the woman who at the time of giving the consent was intoxicated or not of sound mind or if the consent is taken by administration by him personally by any stupefying substance to which the woman is unaware about the consequences of that to which she gives consent. This clause was incorporated by the Criminal Law Amendment, 1983 to prevent the girl from being raped in a condition where she is not aware of the consequences of her actions and the man knowing about this condition can not take advantage of that woman by obtaining the consent in that situation. This was also been interpreted by the court in the case of Tulsidas Kanolkar vs State of Goa where the accused had sexual intercourse with the girl when she was intoxicated and the girl later became pregnant. The Apex court held him liable and was given the rigorous imprisonment of ten years with the fine of Rs.10000.

Consent of a Woman under Eighteen Years of Age

As incorporated in Section 375(6) of the IPC, a man is said to commit a rape, if the consent has been taken of a girl who is below the age of eighteen. Earlier, the age for giving the consent was sixteen but after the Criminal Law Amendment Act, 2013, it was extend to eighteen years after the Nirbhaya Case to prevent the sexual offences and abuse to the teenagers, because the courts have interpreted that girls of the age group from 13 to 18 years are not that mature to understand the consequences of the acts related to intimated relations, therefore, the courts have immuned them. Also, the fact that every person gets its every right when he/she becomes an adult and the age is considered as eighteen years, therefore, the age for giving the consent is to be made as eighteen years.

Marital Rape—An Exception to ‘Rape’

Marital Rape is the sexual intercourse between the husband and the wife without the consent of the wife. It is recognized as an exception in the definition of rape as incorporated under Section 375 of IPC stating that “Sexual intercourse or sexual activities with a man with his own wife, the wife not being under fifteen years of age, is not rape”.This topic has two sides, from the view of a man and the other from the woman. If we see from the woman side, sexual intercourse with a wife without her consent amounts to physical and sexual violence as held in the case of State of Karnataka vs Krishnarappa, also, in the case of Suchita Srivastava vs Chandigarh Administration, Right to make choices were given related to sexual activities, with right to liberty, privacy, dignity and bodily integrity under Article 21 of the constitution. The constitutionality of this exception has also been challenged in several petitions as violative of Article 14 and 21 of the Indian Constitution. As Article 14 states about the equality before the law and equal protection of laws, the woman is discriminated against the criminal law who are the victims who have been raped by the husbands. This section also discriminates against the married woman by denying them equal protection from rape and sexual harassment. One more concern if we see especially from the side of a married woman, this exception has created the classification between the married and unmarried woman, because unlike married woman, unmarried woman is protected under IPC but if a married woman is being raped by her husband, then, she cannot claim justice under IPC due to lack of legislative provisions regarding marital rape under IPC, they can just move to the court with the offence of domestic violence, whose punishments are different and are less strict as compared to the provisions under IPC.

 If we see it under the ambit of Article 21 of the constitution, this violates their right to life with dignity, because it is totally the choice of a woman to engage herself in sexual intercourse or not and you cannot force her. Thus, it had been recognized in the case of Justice K S Puttaswamy(Retd.) vs Union of India, where the court held that the right to privacy as a fundamental right and held that right to privacy also includes ‘Decisional Privacy’, especially an ability to make intimate decisions primarily consisting of a sexual or procreative nature and also which is in respect of the intimate relations. If we look from the man’s side, if this exception is criminalized under IPC, then, it will lead to increase in a number of false complaints just for the sake of personal revenge and ego and it will overburden the judiciary. Another big concern is intercourse with the husband denies the concept of ‘Against her will’ because as we know from the earlier times, India has been known to as a patriarchal society end at the time when IPC was made, the woman was considered not as a separate entity but as a chattel of her husband but Indian law has recognized woman as separate entity and laws are made accordingly. Also, this fact should be considered that if the woman is married, then she becomes the wife of her husband and not the slave of her husband and thus she has the right to whether to engage herself in the intimate relations or not and therefore legal provisions should be made on Marital Rape.

Punishment for Rape

The provision for punishment for rape is stated under Section 376 of the IPC where the rigorous imprisonment for not less than 10 years is given which can be extended up to imprisonment for life. Also, some entities are specified separately, namely, public servant, police officers, members of armed forces, management of staff or jail or if the rape is committed repeatedly on the same woman, are also subjected to liable for the rigorous imprisonment for not less than 10 years and can be extended up to imprisonment for life and will also be liable for fine for the same. Also, if the rape is committed to a woman who is under the age of twelve, he will be liable for the imprisonment which shall not be less than 20 years and can extend to imprisonment for life as incorporated under Section 376AB of the IPC. The legislation have made further and separate provision for the sexual intercourse by a person in authority which basically means if there is a fiduciary relationship between a man and a woman meaning thereby, where one person is in a position to dominate the other like the relationship between a doctor and a patient, or by the manager of a jail of a  custody, where a man who has committed the offence is liable to the rigorous imprisonment for not less than 5 years which can extend up to 10 years and is incorporated under Section 376B of the IPC. This provision was made to restrict the sexual abuse to a woman by the doctor because “ doctor ” is a position which can easily influence the patient and the patient believes in them easily, thus, no questions can be raised against their acts to the patients, therefore, this provision limits the sexual abuse especially by the doctors. Also, after the Nirbhaya Case, 2012, some provisions were modified and some new provisions were added like earlier the punishment for rape was earlier 7 years of imprisonment but changed to 10 years, stalking was also made as an offence and imprisonment up to 3 years was made for the same under Section 354D of the IPC, the imprisonment for the offence of Gang rape was increased from not less than 10 years to not less than 20 years under Section 376D of the IPC. Also, earlier there were no provisions made for the unwelcome physical contact, words or gestures, demand or request for several favours, showing pornography against the will of a woman or making sexual remarks but now all these activities are recognized as an offence and laws are made under IPC.

Gang Rape

Section 376D of the IPC defines gang rape as the rape committed by one person or more than one constituting a group or acting in furtherance with the common intention and each of those persons shall be liable for the imprisonment for not less than twenty years which can be extended to imprisonment for life and they would also be liable for fine and the fine will be reasonable to the medical expenses of the victim and the rehabilitation of the victim. As stated above, earlier the punishment was for imprisonment for not less than ten years was there but was later changed after The Criminal Law Amendment, 2013 to imprisonment not less than twenty years.

 If we critically analyse this provision, we can see that no exception is given to a person who is below the age of eighteen years and would be prosecuted as an adult because earlier there was a loophole that if a man who is not the age of eighteen and involved in the rape were treated under the Juvenile Justice Act, 2000 and so was able to escape from the rigorous punishment but the court has realized later especially after the Nirbhaya Case where one man who was not of the age of eighteen was also involved, that, a man who is of the age of sixteen is still able to know the consequences of his actions and cannot the take the defence of a minor and thus will be treated as an adult. Further, some provisions were also made taking into consideration the age of the victim. As Section 376DA of the IPC states about the life imprisonment for the gang-rape committed to a woman who is below the age of sixteen years and would also be liable for the fine and Section 376DB of the IPC which stated for the imprisonment for life if the rape is committed to a woman under the age of twelve years of age, by both these sections, the age group of a woman from thirteen years to 16 years are prevented under IPC.  

Rape Causing Death or Resulting in Persistent Vegetative

The court has defined ‘Persistent Vegetative State’ as ‘a person who is alive but does not show any evidence of being aware of his environment is known to be in a position of ‘Persistent Vegetative State. This definition and the term was not under the IPC before 2013, but its need occurred after the Nirbhaya Case because in that case the victim after being raped was left in such a position that she was not in an aware state and was later died, thus, after several discussions, this provision was incorporated under Section 376A of the IPC under the Criminal Law Amendment, 2013 which states that when the offence is committed under Section 375 of the IPC and in the course of commission inflicts an injury which causes the death of a woman or causes the woman to be in a persistent vegetative state will be liable for the rigorous imprisonment of not less than twenty years which can be extended to imprisonment for life.

Repeat Offender

As incorporated in Section 376E of the IPC, whoever has been previously convicted of an offence punishable under Section 376 or Section 376A or 376AB, 376D, 376DA or 376DB shall be liable for imprisonment for life. But I think that the accused who has the courage to repeat the same offence means he has no fear of the law and he is ready even for imprisonment for life and therefore there should be the punishment of death penalty for the accused who has previously been convicted under these sections because by doing these crimes and even actually two times, he has destroyed the life of two girls and therefore he is not entitled to the second chance and again the imprisonment should not be given whether it is for even life.

Consensual Sexual Intercourse not amounting to Rape

As the term ‘Consensual Intercourse’ suggests, it means the sexual intercourse between a man and a woman with the consent of the woman. However, this statement seems to be simple that obviously sexual intercourse with the consent of a woman is not rape but the problem occurs in those cases where a man obtains the consent of a woman by making a promise that he will marry her but later refuse to do so. These cases are witnessed mostly in live-in relationship cases. Also, the Supreme Court have differentiated between the rape and consensual intercourse emphasising on the distinction between “breach of promise” and “false promise” as breach of promise means that at the time of the intercourse, the consent was obtained with the bonafide intention but later the circumstances were such that the man has later refused to marriage and therefore it does not amount to rape because that refusal could be due to the family pressure or other domestic problem and therefore that intercourse does not amount to rape whereas, for a false promise, the requirement is that there had to be the mala fide intention of a man and he had made the promise to marry for just obtaining the consent of a woman and therefore he will be liable for rape under Section 375 of the IPC. The court also said that it is not every time the man wants to engage in the intimate relations but there may be the cases where the woman agrees to engage herself in the intimate relations on the account of “her love and passion for the accused” and not based on the “misconception made by the accused”.One big concern regarding this situation is that the court says that if there has been consensual sexual intercourse has been done between a man and a woman by obtaining the consent of a woman to marry her and later refuses, then, he will be liable only if it is been proven that his intention was mala fide at that time, so, the burden of proof is on the woman to prove the bad intention of a man and it is very difficult to prove but on the other side, it is mandatory also otherwise, it will lead to the malicious proceedings by the woman. So, I think this law is gender-neutral and its application will depend on the facts and circumstances of each case.

Evidence of Prosecutrix

As written in the definition of rape, the word ‘penetration’ is mentioned which is itself sufficient to constitute rape and it does not exclude ‘partial penetration’. It has been strictly interpreted by the court in Nirbhaya Case, that even slight penetration will amount to rape. Other evidence can be the biological evidence which is obtained by the crime laboratories like semen, blood, vaginal secretions, vaginal cells, these can be identified. Also, tools like rape kits are very useful in determining the extent of penetration. DNA profiling method is also used to identify the accused. Motile sperm are also collected by the crime laboratories which is produced during the recent coitus to identify the accused and in these cases, the statement of the victim is considered as strong evidence and mainly the primarily evidence.

Disclosure of Identity of Rape Victims

Section 228-A of the IPC which was inserted after the Criminal Law Amendment Act, 1983 states about the disclosure of the identities of certain offences, in which it has been specifically written that whoever prints or publishes about the identity of the victims related to the offence mentioned in Section 376, 376A, 376B, 376C, 376D, 376DA, 376DB, 376E will be liable for imprisonment for either description of the term which may be extended up to two years and shall also be liable for the fine. It has also been mentioned in Section 23 of the POCSO (Prohibition of Children from Sexual Offences) Act, 2012 to imprisonment for two years if any person has revealed about the name, address, photograph, family details, schools, neighbourhood and similarly the restrictions are also made in Section 21 of the Juvenile Justice Act, 2000. The proposed idea behind this was to save the victim from the post offence atrocities of society which came in the form of ridicule and deterioration of marriage prospects. Rape and sexual assault victims were commonly targeted as one who was abetting the crime. Surrendering to the social stigma of victimization after the crime, the legislature came up with Section 228A prohibiting anyone from making the identity of a victim of such offence known. While it cannot be denied that the media houses and news reporting agencies are cautious about such law, still there have been instances where there have been willful or negligent breaches. But the irony and apathy about these provisions are there have been many instances where the judiciary whether the Supreme Court, the High Court or the Trial Court have rashly disclose the identity of the victims in several cases and these judgements were widely circulated by the websites, social media. However, the courts have conveniently ruled that provisions given under Section 228-A are not applicable to the judicial servant acting in a bonafide manner. 

The Hon’ble Supreme Court in the case of State of Karnataka vs Puttaraja has stated that in the cases related to sexual offences, the name of the victim will not be revealed by the courts but instead of name, they will be called as ‘victim’ in the case for the social object to prevent the social victimization of the sexual offence for which the Section 228-A was enacted. Also if we emphasis this section, it has been made as a non- compoundable offence to prevent the powerful media houses from purchasing the victim’s approval from money for selling the news. As these days, care should be taken on social media rather than to media houses because now the news spread very fast through Whatsapp, Facebook etc. and people share it in the bonafide intention and not to harm the reputation of the other but they are unaware about the consequences of their act, therefore, certain restrictions should be made by the Ministry of Information and Technology to prevent the sharing of the identities of the victim because reasonable restrictions can be imposed by the state to right to freedom of expression guaranteed under our Constitution.   

Unnatural Offences

Provision related to unnatural offences is incorporated under Section 377 of the IPC mentioning about imprisonment for life or of ten years against the one who is voluntarily doing carnal intercourse against nature with any man, woman or animal and shall also be liable for fine. This section came into existence in 1861 during the British rule where the term “against nature” included homosexual activities. Unnatural offences also include sterilization, sodomy, bestiality etc. This section has not made any classification between the married or unmarried woman because in marriage under Hindu Law(Hindu Marriage Act, 1954) also sodomy, bestiality or sterilization are the grounds for the annulment of the Hindu marriage. Also, the concept of bestiality revolves around the consent as how can you obtain the consent of an animal when they are not able to communicate, similarly ‘anal’ or ‘oral’ sex is equally unnaturally because both these two are out of the scope of the normal sexual intercourse and are physically harmful to both men and woman and are not the essential ingredients for a sexual intercourse.

Constitutional Validity of section 377

Section 377 was first challenged by an NGO, Naz Foundation and AIDS Bhedbhav Virodh Andolan in the Delhi High Court in 2001 as violative of the Article 14, Article 15 and Article 21 of the Indian Constitution on behalf of the Lesbians, Gay, Bisexual, Transgenders because no educational, constitutional rights were there for them, they were not treated like the ordinary man or woman and thus their conditions were worst. Then, by taking into consideration the conditions of the transgenders, in 2014, the Court has made the transgender quota and has categorized them into the Other Backward Castes(OBC). Later Supreme Court in the Right to Privacy judgement also called for equality and condemned discrimination, stating that the protection of sexual orientation lies at the core of the fundamental rights and that the rights of the LGBT population are real and founded on constitutional doctrine. In January 2018, a three-member bench of the SC heard the petition by filed by five people to review the judgement given in Naz Foundation Case and the SC have finally decriminalized homosexuality by declaring Section 377 of the Indian Penal Code as unconstitutional. The Apex Court unanimously ruled that individual autonomy, intimacy and identity are protected fundamental rights and scrapped the controversial Section 377 of IPC- a 158-year-old colonial law on consensual gay sex. The Supreme Court reversed its own decision and scrapped section 377 of IPC that criminalized homosexuality and opined that the application of Section 377 to consensual homosexual sex between adults was unconstitutional, irrational, indefensible and manifestly arbitrary. But Section 377 remains in force relating to sex with minors, non-consensual sexual acts, and bestiality.

Proposals for Reform

The punishment given under the provision related to rape under IPC is for imprisonment for not less than ten years which can extend up to imprisonment for life. These are the following proposals which should be made regarding these offences-

• There should be the provision of the death penalty for the accused where the rape is of such extent that it has amounted to the death of the victim. Also, the accused which we witness in these cases, they are not different species but they exist between us only, therefore, changes are required in the minds of society rather than the law, like, there should be a strict ban on porn websites, adult entertainment because nowadays in the time of technology, these are accessible to everyone in the society and can be accessed by even the child who is not even a teenager, therefore, the Ministry of Information and Technology should take strict action about this problem.
• There should be some awareness programs in urban as well as rural areas where the children, especially girls should be made aware about the good touch and the bad touch, this will help to prevent the cases of child abuse. 
• There should be legal awareness programs primarily in the rural areas, about not to fear from filing a case, if the offence is related to rape, it has to make them understood, that now the crime has committed and the police, the judiciary will be able to help them if they wanted them to.
•  Another big concern is the speedy trial, it is to suggest that in the cases where there is constructive evidence like CCTV recording etc. where it is clearly seen the identity of the accused, then, those proceedings should be done quickly. 
• There should be the programs regarding the sex education to be organized in schools, so as to aware the students about these things because it is important to aware about the reproduction process, especially make them aware about the sodomy, bestiality or sterilization, about the contraceptives which make them aware about these private things.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

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This article is written by Kartikeya Kaul, a first-year student pursuing BA.LLB. from Symbiosis Law School, Noida. This is an exhaustive article dealing with the Protection of Minorities under Company Law.

Introduction

In a country like India, we can always see in the news about crimes regarding battery, assault, discharge etc, such crimes are very common in our country and happen almost every single day, one may argue that it happens hourly and because of this, people were facing a lot of problems, the government had to step in and so they made certain laws that ensured strict punishment to all those people who committed such crime and thus it reduced to number of such crimes in our country. 

Criminal Force 

When a person intentionally uses force on another person without that person’s consent, in order to commit an offence and with the prior intention of causing harm to that person in the form of injury, fear or annoyance to whom the force is used, is said to use criminal force on the other person. It comes under Section 350 of the Indian Penal Code.

Force

A person is said to be using “force” on another person when he causes a change in motion, cessation of motion or a substantial change in motion of another person, or brings a substance in contact with another person’s body or it affects another person’s sense of feeling. The term force in Section 349 is force used in connection with the human body. 

Consent

In criminal force, a person may use undue force on another person without the consent of that person so as to cause harm to him. If there is consent, it won’t be counted as criminal force.

Assault

When a gesture is made to any person, knowing that the person is going to apprehend it as the person is going to use criminal force on that person is known as assault. Mere words do not consist of an assault. But a person may use certain gestures and expressions or preparation, such gestures, expressions and preparations may amount to assault. For example:

• X shakes his fist at Y, intending or knowing that may cause to believe Y that X is about to strike Y. X has committed assault.
• X loosens the muzzle of a ferocious dog knowing that the dog will cause harm to Y. So, X has committed an assault upon Y.
• A takes up a stick, says to Z, “I am going to beat you up”. Here, although the words employed by A may in no case amount to a direct assault, and although the mere gesture, unaccompanied by the other circumstances, may not amount to an assault, the gesture explained by the words might amount to an assault.

Ingredients

Gesture or Preparation

When a gesture or preparation is made from one person to another person with the intention to use criminal force, it is said to commit assault. 

Cause Apprehension of Assault

Generally speaking, assault happens when someone causes harm to other person’s body which may be usually followed by battery, as this may include things like unlawful physical conduct, violence or unlawful sexual contact. Though, all threats are not considered assault. Also, to rise to the level of actionable offence, the plaintiff may file the suit:

• The act was intended to cause apprehension of harm or offensive contact;
• The act caused apprehension in the eyes of the victim that he would be harmed by the other person’s actions. 

Difference between Assault, Criminal Force and Hurt

When a person intentionally uses force on another person without that person’s consent, in order to commit an offence and with the prior intention of causing harm to that person in the form of injury, fear or annoyance to whom the force is used, is said to use criminal force on the other person. It comes under Section 350 of the Indian Penal Code whereas assault is when a gesture is made to any person, knowing that the person is going to apprehend it as the person is going to use criminal force on that person is known as assault and whoever causes bodily pain, disease or infirmity to another person is known as hurt. It is defined in Section 319 of the Indian Penal Code. 

Punishment for Assault or Criminal Force

When someone assaults or uses Criminal force another person based on sudden and grave provocation by another person, he may be sentenced to prison time of a term which may be extended for a term of three months or a fine of up to INR 500, or both. It is defined under Section 352 of the Indian Penal Code.

Aggravated Forms of Assault or Criminal Force

Aggravated forms of assault or use of criminal force includes aggravating elements that consist of the intention to outrage the modesty of a woman and he has the knowledge that will outrage his modesty. It comes under Section 354 of the Indian Penal Code.

Assault or Criminal Force to Deter Public Servant

Assault or criminal force on another person to discharge him from duty, this comes under Section 353 of the Indian Penal Code. Whoever assaults any public servant when he is in the course of his or her duty, or with the intent of deterring the person of his duty, the person shall be imprisoned for a term which may be extended for up to 2 years, or a fine, or both. 

Assault or Criminal Force to Woman to Outrage her Modesty

A person who assaults another woman, intending to outrage her and thus likely to outrage her modesty, shall be punishable under this act under Section 354 of the Indian Penal Code. It consists of assault or use of criminal force, mere knowledge is also sufficient without any deliberate intention.

Assault or Criminal Force with Intent to Disrobe a Woman

Any man who assaults or uses criminal force on another woman abets such act with the intention of disrobing or compelling her to be naked, shall be punished with the sentence of the term of 3 years minimum with the sentence also extending to seven years and also shall be liable to a fine. This comes under Section 354B of the Indian constitution. 

Assault with Intent to Dishonour a Person

Whoever assaults or uses criminal force on that person, hereby intending to dishonour that person, otherwise on grave and sudden provocation given by that person, shall be imprisoned for two years or be fined, or both. This comes under Section 355 under the Indian Penal code. 

Assault in Attempting Theft

Whoever assaults or uses criminal force to another person to commit to attempt theft on any person that he is wearing or he owns, shall be punished for a term which may extend to 2 years, or a fine, or both. This comes under Section 356 of the Indian Penal Code.

Assault in Attempting Wrongful Confinement

Any person who assaults or uses criminal force on another person with the intention to wrongfully confine another person, shall be imprisoned for a period of one year or be fined Rs. 1000 or both. This comes under Section 357 of the Indian Penal Code. 

Specific Acts Offending Decency of a Woman

There are specific acts which offend the modesty and decency of a woman. Whoever, intending to insult the modesty of any woman, utters any word, says something bad, makes any sound or gesture, such an action may be seen by the woman, and in order to protect her privacy, shall be punished with imprisonment for a term which may simply be for a year, or a fine, or with both. 

Sexual Harassment

A man committing any of the following acts: 

• Physical contact and advances involving unwelcome and specific sexual overtures. 
• A demand or request for sexual favours.
• Showing porno against the desire of a woman.
• Making sexually coloured remarks shall be guilty of the offence of sexual harassment.

Any man that commits the offence laid out in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be penalised with rigorous imprisonment for a term which can extend to 3 years, or with fine, or with both of these.

Any man that commits the offence laid out in clause (iv) of sub-section (1) shall be penalised with imprisonment of either description for a term which can be one year or with fine, or with both. This comes under Section 354A of the Indian Penal code. 

Voyeurism

Any man that watches, or captures the image of a lady participating in an exceedingly personal act in circumstances wherever she would typically have the expectation of not being discovered either by the culprit or by the other person at the dictation of the culprit or disseminates such image shall be penalized on initial conviction with imprisonment of either description for a term that shall not be but one year, however, it may add up to 3 years, and shall even be at risk of a fine, and be penalized on a second or subsequent conviction, with imprisonment of either description for a term which shall not be but 3 years, however, which can add up to seven years, and shall be liable to fine. 

Explanation: For the aim of this section, “private act” includes an act of observation allotted in a place that, within the circumstances, would fairly be expected to produce privacy and where the victim’s private parts, posterior or breasts are exposed or covered solely in underwear; or the victim is employing a lavatory, or the victim is doing a sexual act that is not of a form unremarkably done in public.

Where the victim consents to the capture of the pictures or any act, however not to their dissemination to third persons and wherever such image or act is disseminated, such dissemination shall be thought of an offence under this section. This comes under Section 354C of the Indian Penal Code. 

Stalking

In the groundswell of support for exploited women, the one common experience most girls have undergone has been that of stalking. Before the advent of the internet age, the offence was not even recognized in the statute. Social media platforms like Facebook, Twitter, etc. have given stalkers a replacement weapon to victimize girls and harass them online. The recognition of stalking as an offence was a slow and gradual method that finally got introduced within the statute once the 2013 criminal law amendment. The Indian Penal Code, 1860, being a colonial law, did not contemplate stalking as an offence at all.

The only protection to girls was under Section 354 for harassment and Section 509 of IPC for victimization words or gestures to insult the modesty of a lady. Under Section 354 of the IPC, whoever assaults a woman knowing that it would outrage her modesty is liable to be punished under the law. The essence of a woman’s modesty is her sex.

The ultimate check to be seen if the lady’s modesty is incensed is to examine if the act or assault would be enough to stun the sense of decency of a woman. The law makes it punishable providing 3 ingredients are met- i.e, the assault should be on a lady, the suspect should have used criminal force and that it should outrage her modesty. This comes under Section 354D of the Indian Penal Code. 

Conclusion

Assault is basically the apprehension that the other person is going to get hurt. It is done to another person with the use of criminal force with the ill will to harm the other person. People face a lot of problems because of this, especially women. So, it was inevitable that strict laws regarding Assault and Criminal force had to be put in place and be implemented properly so that every person is protected by the law. Any person who assaults any other person by using criminal force, he may be punished or fined, or both, according to the Indian Penal Code. 

References 

• http://devgan.in/ipc/chapter_16.php#s351
• http://vikaspedia.in/social-welfare/social-awareness/legal-awareness/law-on-outraging-modesty-sexual-harassment-and-stalking-of-women
• https://indiankanoon.org/doc/1569253/
• https://barandbench.com/me-too-law-protects-you-stalking/

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

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This article has been written by Lakshmi. V. Pillai of 5th year pursuing B.A. LL.B from GLS Law College, Ahmedabad. This article in depth discusses the various types of punishment provided under Section 53 of the Indian Penal Code,1860. Further, the constitutionality of the death penalty and various case laws wherein the death penalty has been upheld and not upheld by the Apex Court are also cited. This article also includes topics like sentencing policy, compensation to victims and proposals for reform under IPC. 

Introduction

Under the sanction of the law, punishment is retribution on the offender to the suffering in person or property which is inflicted by the offender. Punishment is the way through which an offender can be stopped from doing offences against person, property, and government. Therefore, punishments can be of various types like deterrent, rehabilitative, restorative and retributive.

Sentencing Policy

Under the Indian Penal Code, the sentencing policy is measured on the following factors:

• The gravity of the violation;
• The seriousness of the crime; and
• Its general effect upon public tranquillity.

There is a correlation between measures of punishment and the measure of guilt. Accordingly, the sentencing policy in a particular offence is standardized.

In March 2003, a body was established by the Ministry of Home Affairs, the Malimath Committee (the Committee on Reforms of Criminal Justice System) in India. The purpose of the committee was to give recommendations on the sentencing guidelines for the Indian Judiciary. The aforesaid committee had issued its report in which it stated that there is a need to introduce guidelines on sentencing to minimize the uncertainty of awarding sentences. The committee observed that “for many offences, only the maximum punishment is prescribed and for some offences, the minimum may be prescribed” and thereby there is a lack of uniformity. This results in wide discretionary powers to the Judges to decide the sentencing duration, which leads to uncertainty in the sentencing policy. In 2008, the Madhava Menon Committee (the Committee on Draft National Policy on Criminal Justice), again reaffirmed the need for statutory sentencing guidelines.

As per the white paper introduced by the British Parliament, the aim of having a sentencing policy should be “deterrence and protection of society from evils”. The lack of sentencing policy will not only affect the judicial system but it will also substantially harm society. 

Fundamental Principles for Imposition of Different Types of Punishments 

As per the United States Institute of Peace, the principle of the imposition of punishment can be based on:

1. The necessity for criminal justice compulsion; and
2. The proportionality of punishment based on the nature and degree of the danger which is present against the fundamental freedoms, human rights, social values, rights guaranteed and protected under the Constitution or international law. 

In the case of Soman v. Kerala, the Supreme Court of India cited a number of principles while exercising discretionary powers by the Court. The general principles are proportionality, deterrence, and rehabilitation. In the proportionality principle aggravating and mitigating factors should be considered. Mitigating circumstances are related to the criminal and aggravating circumstances are related to the crime.

In para 12 of the Soman’s case, the Supreme Court pronounced that “Giving punishment to the wrongdoer is at the heart of the criminal justice delivery, but in our country, it is the weakest part of the administration of criminal justice. There are no legislative or judicially laid down guidelines to assist the trial court in meting out just punishment to the accused facing trial before it after he is held guilty of the charges.” Further, the court acknowledged and opined the observation made in the case of State of Punjab v. Prem Sagar, wherein the Court stated that “In our judicial system, we have not been able to develop legal principles as regards sentencing. The superior courts except making observations with regard to the purport and object for which punishment is imposed upon an offender have not issued any guidelines.” Therefore, there is a necessity to have a sentencing policy with due consideration to the recommendations made by the Madhava Menon Committee and Malimath Committee. 

Scope of Section 53

In the Indian Penal Code, 1803 (“Code”), Section 53, specifically deals with different types of punishments which can be given by the Criminal Courts if the person is held liable under the Code.

There are five kinds of punishments recognized under Section 53 of the Code:

1. Death;
2. Imprisonment for life;
3. Imprisonment:

1. Rigorous Imprisonment; or 
2. Simple Imprisonment.

1. Forfeiture of property;
2. Fine.

Considering the above punishments, the courts are supposed to follow the procedures and provisions which are prescribed under other adjective and substantive laws. 

As per the scheme of the Code the maximum punishment is prescribed, leaving the minimum to the discretion of the Judge. The Judge has all the means to form an opinion on the sentence which would meet the end of justice in a particular case. If the offence is grave in nature then the Code had prescribed the maximum and the minimum duration of the punishment.

Awarding Appropriate Sentence is the Discretion of the Trial Court

In the case of Sibbu Munnilal vs State Of Madhya Pradesh, the three-judge bench of the Madhya Pradesh High Court had observed the scheme of punishment as follows:

1. The classification of offences is made with reference to the maximum punishment to which the offender is liable to receive.
2. In the case of the death penalty and imprisonment for life is provided as a punishment under a section. Imprisonment for life shall be considered as an alternative. And death penalty shall only be given if the case comes under the ambit of ‘rarest of rare case’. While giving the death penalty as punishment the Judge shall give due importance to the facts and nature of the case. 
3. Imprisonment can be categorized into two categories- simple and rigorous.
4. Imprisonment for life means rigorous imprisonment for twenty years.
5. The difference between imprisonment for life and imprisonment is the former can be rigorous and the imprisonment is till his last breath, however, the duration of the latter can vary from period 24 hours to 14 years.
6. Lastly, offences punishable with fine means the offences for which the maximum penalty can be fine only.

In a recent case of 2017, in State Of H.P vs Nirmala Devi, the Supreme Court ruled that the trial court has the discretion to give punishments as per the scheme provided under the code.

When Appellate Courts Can Interfere with Sentence Imposed

As per Section 386 of CrPC, the Powers of Appellate Court are as follows:

1. The Appellate court can interfere or dismiss the appeal if it finds sufficient grounds to do so after hearing the parties of the appeal;
2. If the matter is an appeal from an order or acquittal:

1. Then the appellate court can reverse such order and direct further inquiry of the matter or;
2. Direct for retrial of the accused.

3) If an appeal from a conviction, then the Appellate court have the following powers:

1. Reverse the finding and sentencing and acquit or discharge the accused or order for the retrial by a competent court, or committed for trial;
2. Alter the maintaining, finding of the sentence, or;
3. Alter the nature or the extent or nature and extent of the sentence, with or without altering the finding. However no power to enhance the sentence by the court.

4) If an appeal for enhancement of sentence, then the Appellate court have the following powers:

1. Reverse the finding and sentencing and acquit or discharge the accused or order for the retrial, or committed for trial;
2. Alter the maintaining, finding of the sentence, or;
3. Alter the nature or the extent or nature and extent of the sentence, with or without altering the findings with the power to enhance or reduce the sentence.

5) if the appeal is from any other order, then power to alter or reverse such order;

6) the appellate court can make any amendment or act incidental or any consequential order can be ordered which may seem to be just or proper to the court.

The section also includes a provision wherein it lays out conditions to the Appellate Court while exercising this power:

The conditions are as follows:

1. The Appellate Court shall not enhance the punishment unless the accused given an opportunity for such enhancement;
2. Further, the Appellate Court shall not inflict the punishment given by the court under appeal (trial court or lower court) unless the Appellate Court has a view that the punishment is inadequate.

In the recent case of State Of H.P vs Nirmala Devi, the Supreme Court held that the Appellate court shall not exceed its powers under Section 386 of Cr.P.C. beyond the statutory scheme provided under the Indian Penal Code. For example, to alter the sentence of imprisonment and fine with a sentence only of fine, the Appellate Court can not alter the order likewise where the consequences will be unjust and unfair. 

Principles for Sentencing 

The principle for sentencing developed through court decisions and legislation. And these principles form the sentencing decisions. The principles which are generally followed by the court are as follows:

• Excessiveness/Parsimony– the punishment which is given shall not be severe unless required.
• Proportionality– the sentencing shall fit to the overall gravity of the crime.
• Parity– the punishment should be similar for similar types of offences committed by offenders under similar situations.
• Totality– when an offender is punished with more than one sentence, the overall sentence must be just and appropriate which shall proportional to the offending behaviour.
• Purpose– the sentencing shall achieve the purpose of the punishment. The purpose of punishment can be a deterrent, rehabilitative, protection of the public, etc.
• Simplicity and predictability– sentencing shall not be depending on the bias or personality of the judge. There shall be a clear and definite scheme of sentencing.
• Truthfulness- the sentencing shall reflect the actual term to be served by the prisoner in prison, so there shall be no place for ambiguity.

Aggravating Circumstances 

The aggravating circumstances to which the Judges consider are as follows:

1. The surrounding of the crime itself;
2. The circumstances relating to the criminal’s background;
3. The circumstances relating to the criminal’s conduct; 
4. The criminal’s future dangerousness;

The other factors which are considered under aggravating circumstances are as follows:

• Professionalism and premeditation;
• Prevalence of offence;
• Offences committed in the group;
• Breach of trust.

In the case of Sangeet & Anr. v. State of Haryana, the court noted that the approach which was laid down in the case of Bachan Singh was subsequently not fully adopted by the courts. The mitigating factors and aggravating factors both need to be considered and balanced while sentencing a punishment to the accused. 

Types of Punishments

1. Death Sentence

 The death sentence is a punishment which is sanctioned by the government and ordered by the court where a person is put to death for a crime acted by him. It is also referred to as ‘Capital Punishment’. The act of carrying out such practice is called execution. As per the Amnesty International survey, the report on as of July 2018 is 56 countries retain capital punishment and 106 countries have completely abolished capital punishment for all crimes. In India, the death penalty is given by the method of hanging. The other ways through which death sentences executed at world scenarios are stoning, sawing, blowing from a gun, lethal injection, electrocution, etc.

The subject of death sentence always has been a matter of controversy. While considering the Constitution as the supreme, the validity of death sentence v/s fundamental rights constantly came forward for the debates. However, the death sentences are rarely given in the Indian criminal courts. In the case of Bachan Singh vs State Of Punjab, the Supreme Court held that capital punishment shall be given in the “rarest of the rare” case. However, what constitutes the “rarest of the rare cases” is not prescribed by the Supreme Court or by the legislature.

In the case of Jagmohan Singh v. State of Uttar Pradesh, the SC ruled that the approach towards imposing capital punishment shall be balanced on mitigating and aggravating factors of the crime. However, in the case of Bachan Singh, for the first time, this approach was called into question due to the amendments in the Cr.P.C. As per the amendment in the Cr.P.C. in the offence of murder the offender shall be punished with the sentence of life imprisonment. After taking due consideration of the amendment, the Court stated that capital punishment shall be given in special cases only. However, in the case of Sangeet & Anr. v. State of Haryana, the court noted that the approach laid down in Bachan Singh’s case is not fully adopted. The courts still give primacy to the crime and not to the circumstances of the criminal. The balance of the mitigating and aggravating factors have taken a bit of a back seat in ordering punishment. 

The provisions under which the death penalty is given as punishment under IPC are as follows:

• Section 115– Abetment for an offence punishable with death or imprisonment for life (if offence not committed);
• Section 118– Concealing design to commit an offence punishable with death or imprisonment for life.
• Section 121– When armed rebellion (i.e. waging, abetting to waging of war or attempting to wage war) is made against the constitutionally and legally established government;
• Section 132– Uprising, supporting and encouraging the formation of the mutinous group of people in the nations armed forces;
• Section 194- With the intent to obtain a death sentence to an innocent by presenting concocted vexatious proof;
• Section 302– Causing murder of another;
• Section 305– Abetting suicide to an insane or minor person;
• Section 303– When a life convict person murders another person;
• Section 396– Causing dacoity with murder;
• Section 364A– Kidnapping;
• Section 376A (as per the Criminal Law Amendment Act, 2013)- Rape

Some other Acts under which the death penalty covered as punishment are: 

1. Section 4, part II of the Prevention of Sati Act- Abetting or aiding an act of sati.
2. Section 31A of the Narcotic Drugs and Psychotropic Substances Act- Drug trafficking in cases of repeat offences.

However, the death penalty as a punishment is an exception to certain persons like intellectually disabled, pregnant women and minors.

Procedure When Death Penalty is Imposed 

The death sentence is executed by two modes in India:

1. Hanging by the neck till death (this is mostly ordered by the Courts);
2. Being shot to death.

The various states of India have jail manuals that provide a method for the execution of death sentences. In accordance with Section 354(5) of the Code of Criminal Procedure Act, 1950 hanging by neck till death is the mode of the execution. After the death sentence is awarded by the court, the accused have the right to appeal the order. After exhausting all remedies and confirmation of the order, the execution is made as per procedure under Section 354(5) of Cr.P.C. The process of execution is provided separately under the Air Force Act, 1950, the Army Act, 1950 and the Navy Act, 1957. However, the procedure under the above-mentioned defence acts is applicable to defence officers only.

The Prison manual of different states of India gives detailed instructions about the execution particulars. Some are as follows:

1. The prisoner who is convicted for death sentence shall be given a proper diet, examined twice a day. The officers shall satisfy that the prisoner has no article by which he can attempt for suicide.
2. The description of the rope and testing of rope.
3. Regulation of the drop while executing the hanging.
4. Time of executions.

Constitutional Validity of Death Penalty

The issue of the death penalty is not a recent issue. It has been discussed, studied and debated for a prolonged time. However, till today no conclusion is drawn about the abolition or retention of the provision. The death penalty has been the mode of punishment from the British era. Various countries have abolished this practice. However, in Arab countries the principle of retributive punishment i.e. “an eye for an eye” is practised. In the list of retention countries as mentioned above, India is one of them which have retained to give death penalty unless some ‘special reasons’ or ‘rarest of rare case’ condition arise. 

Under Article 21 of the Constitution of India, the right to life and liberty is guaranteed, including the right to live with human dignity. There are certain exceptions that are recognized by the law wherein in the name of law and public order the state can restrict the rights. In Maneka Gandhi v. Union of India, the SC laid down the principle of “due process” through which a state can restrict the citizens from enjoying their rights. In the case of the death penalty the due process can be as follows:

• Death penalty to be given in ‘rarest of the rare’ cases;
• The accused shall be given the ‘right to heard’;
• As per Article 136, the death penalty shall be confirmed by the High Court;
• Under Section 379 of the Cr.P.C., the accused have the right to appeal in the Supreme Court;
• Under Section 433 and 434 Cr.P.C., the accused may pray for commutation, forgiveness, etc. of the sentence.

In various cases, the constitutional validity of the death penalty was challenged. In the case of Jagmohan Singh v. State of U.P, the argument was that the death penalty is in violation of Article 14 (Right to Equality), Article 19 (Right to Freedom) and “right to life” i.e. Article 21, which has been unanimously rejected by the five-judge bench of the Supreme Court. Further, it was contended that as per Cr.P.C. the procedure is confined to findings of guilt and not awarding death sentence. However, the Supreme Court held that the death sentence is a choice by the court made according to the procedure established by law and the choice between capital sentence or imprisonment of life is based on the circumstances, nature and facts of the case brought during the trial.

In the case of Rajendra Prasad v. State of U.P, Justice Krishna Iyer had empathetically stressed that the death penalty is violative of articles 14, 19 and 21. With this the Justice Iyer said two conditions under which the death penalty can be given:

• While giving the death penalty the court shall record special reasons.
• Only in extraordinary cases the death penalty to be imposed.

However, in the case of Bachan Singh vs. State of Punjab, within one year the five-judge bench (4:1- Bhagwati J. dissenting) overruled the decision of Rajendra Prasad’s case. The judgment expressed that the death penalty is not violative of Article 14,19 and 21 of the Constitution of India and pronounced that in the “rare of the rarest case” i.e. those cases in which the collective conscience of the community is so shocked that it will expect the judiciary to deliver the death penalty on the accused the death penalty can be ordered. Although, Justice Bhagwati in his dissenting judgment stated that the death penalty is not only being violative to Article 14 and 21 but also undesirable because of several other reasons.

Further, in the case of Machhi Singh vs. State of Punjab, the Supreme Court laid down the broad outlines of the circumstances under which the death sentence can be imposed. The court pointed out that under five categories of cases the extreme penalty can be given. Those points are as follows:

1. Manner of commission of murder;
2. Motive;
3. The magnitude of the crime;
4. Anti-social abhorrent nature of the crime;
5. The personality of the victim of murder.

Similarly, in the case of Sher Singh v. State of Punjab and Triveniben vs. State of Gujarat, the Apex court asserted affirmatively that the death penalty does not invalidate the rights enriched under the Constitution of India.

In the case of Mithu v. State of Punjab, the Supreme Court held that the mandatory death penalty is invalid and unconstitutional in nature. However, no comments were made on the consequent legislation for drug and criminal offences wherein the death penalty is considered mandatory. But at the same time, Indian courts actually applied the mandatory death penalty for these crimes. 

However, recently in the case of Channu Lal Verma v. State of Chattisgarh, the question of the constitutional validity of the death penalty came to the three-judge bench. The Bench Constituted of Justice Kurian Joseph, Justice Deepak Gupta, and Justice Hemant Gupta. The bench upheld the decision of the Bachan Singh case. However, Justice Kurian Joseph had a different view, he said that “there is no substantial proof for the death penalty as a deterrent to crime”.

Evolving Parameters for Imposition of Death Sentence

The basic evolving parameters for the imposition of Death Sentence are: 

1. The punishment shall not be so severe, so as to degrade the dignity of humans;
2. The state shall not arbitrarily inflict a severe punishment;
3. In a contemporary society such severe punishment shall not be unacceptable;
4. Such severe punishment must not be unnecessary.

However, there are other two questions which can be pondered by the Court while imposing the death penalty as punishment:

1. There is something uncommon in the crime which calls for the imposition of the death penalty and renders the sentence of imprisonment for life as inadequate.
2. Even after giving maximum weightage to the mitigating factors which are in favour of the offender there is no other alternative other than imposing the death sentence.

Sentencing Procedure: Mandatory Provision of Section 235(2), Code of Criminal Procedure 1973

In the ‘41st report of Law Commission’, it recommended for the insertion of new provision which made a significant contribution in acknowledging the cardinal feature of procedural fairness and natural justice. Under the old code, there was no statutory opportunity given to the accused to explain the mitigating factor which is relevant to decide the nature of the punishment. However, after the recommendation of the Commission introduction of Section 235(2) and Section 248(2) of the Cr.P.C. was made. The new provisions provided an opportunity for the convict to place necessary information to the court to determine the mitigating factors and decide the case accordingly. Therefore, the choice of sentence shall be made after following the procedure under section 235(2) duly followed by the court. In the cases of death sentence the importance of “right of hearing” has been overemphasized.

In 1976, in the case of Santa Singh v. State of Punjab, the Supreme Court explained the nature and scope of Section 235(2). The Bench remarked that “The provision is an acknowledgement of the fact that sentencing is an important stage in the criminal justice administration as the adjudication of guilt. And in no case, it should be consigned to a subsidiary position. It seeks to personalize the punishment so that the reformist component remains as much operative as the deterrent element. It is, for this reason, the facts of social and personal nature, maybe irrelevant for guilt determination, should be brought to the notice of the court at the time of actual determination of sentence”.

Further, the court also opined about the meaning of the word ‘hearing’. The hearing is not only limited to the oral submissions but it is wider than that. It gives both parties the right to put facts and materials which can be essential for the questions of sentencing. The Court stressed on the point that it is mandatory for the lower courts to comply with this provision. Not complying with Section 235(2) will not only be considered as mere irregularity, but that shall vitiate the sentence.

In the case of Allauddin Mian v. State of Bihar, Justice Ahmadi emphasized the purpose of Section 235(2):

1. It gives the accused an opportunity of being heard, which satisfies the rule of natural justice;
2. To determine the sentence of the award it assists the court. 

Case laws on Death Sentence (When the death sentence is confirmed)

(1) State of Tamil Nadu v Nalini

In the case of State of Tamil Nadu v Nalini, the case was filed as an appeal against the judgment of the High Court of Tamil Nadu. This case is popularly known as Rajiv Gandhi’s assassination case. The offenders were accused under Indian Evidence Act, 1872, Indian Wireless Telegraphy Act, 1933, The Foreigners Act, 1946, Passports Act, 1967, Arms Act, 1959, Explosive Substances Act, 1908, Indian Penal Code, 1908 (IPC), TADA Rules, The Terrorist And Disruptive Activities (Prevention) Act, 1987. In the case, there were 26 accused out of which four accused were punished death penalty by the Apex Court. The accused were from the LTTE (Liberation Tigers of Tamil Eelam) group and were seeking revenge for the Indian government’s decision for sending army troops in Srilanka. However, as per recent update Nalini Sriharan, V Sriharan, and Murghan have applied plea for mercy killing as there is no response to their mercy petition till date.

(2) Jai Kumar v State of Madhya Pradesh

In Jai Kumar v State of Madhya Pradesh case, an appeal by the grant of special leave against the order of the Division bench of the High Court of Madhya Pradesh was made. In this case, the accused brutally murdered sister-in-law and 7-year-old niece. The Court considered the factual matrix of the case and observed that the act of murder was not done in the rage and the accused himself under Section 313 of the Cr.P.C admitted the murder. Thereby, the Supreme Court upheld the verdict of the Sessions Court and the High Court of Madhya Pradesh.

(3) Suresh Chandra Bahri v State of Bihar

The case of Suresh Chandra Bahri v State of Bihar was filed as an appeal from the High Court of Patna. The Sessions Court convicted the three appellants named Suresh Bahri, Gurbachan Singh and Raj Pal Sharma for the death penalty under Section 302 and Section 120 B of the IPC. The High Court of Patna dismissed the appeal affirming the sentence awarded by the trial court. In this case, the accused killed Urshia Bahri and her two children because of some dispute in the property. The Supreme Court confirmed the death penalty of Suresh Bahri, whereas the death penalty of the Gurbachan Singh and Raj Pal Sharma was commuted to a life sentence.

(4) Dhananjoy Chatterjee alias Dhana v State of West Bengal 

In the 21st century, the case of Dhananjoy Chatterjee alias Dhana v State of West Bengal can be called as a historic case as the accused was the first person who was lawfully executed for a crime not related to terrorism. The accused was working as a watchman in the building of the deceased. He had raped and murdered an 18-year-old girl at her own home. The trial court ordered the death penalty under Section 302 of the IPC. The same has been confirmed by the High Court of West Bengal. While the appeal in the Supreme Court, the court held that case will be considered under “the rarest of the rare” case, thereby there will be no commutation of the punishment.

(5) Sushil Murmu v State of Jharkhand

In the case of Sushil Murmu v State of Jharkhand, the accused was punished with the death penalty for the sacrifice before Goddess Kali of a 9-year-old child. The accused made the sacrifice for his own prosperity. The trial court held the accused liable under Section 302 and 201 of the IPC, 1860 and the Jharkhand High Court confirmed the death penalty. The Appeal was made to the Supreme Court, however, the Apex court upheld the order of the lower court and affirmed that this is an exemplary case which can be treated as the rarest of rare case, therefore there is no exception to be given to this case.

(6) Holiram Bardokti v State of Assam

In the case of Holiram Bardokti v State of Assam, there were 17 accused. The appellant is one of the accused who has been awarded the death penalty under Section 302 read with Section 149 of the IPC by the Sessions Judge. The same has been confirmed by the High Court of Assam. The accused was being held for two murders i.e. of Narayan Bordoloi, Padam Bordoloi and Nayanmoni (6-year-old child). The Supreme Court observed that the appellant had no spark of kindness or compassion while burning the bodies and cutting the body into pieces, the whole accident shocked the collective conscience of the community. Therefore, the Apex Court upheld the order of the lower courts and observed that the court is not able to find any mitigating factors to refrain from the death penalty.

Cases laws on Death Sentence (When Death Sentence has been Commuted to Life Imprisonment)

(1) Om Prakash v State of Haryana

In the case of Om Prakash v State of Haryana, the accused named Om Prakash was guilty of seven murders, thereby the Sessions court held him guilty under Section 302 of IPC, which was upheld by the High Court of Punjab and Haryana. There were two other accused but they were given life imprisonment and a fine of Rs.2000. During the appeal to the Apex Court, the court observed that mitigating factors of the case and considering other circumstances of the case, this can not be counted under the rarest of rare cases. The court considering the background of the case found that the murder was acted due to constant harassment of the family members (deceased ones). 

Further, the court observed that this is not the case which was committed to fulfil the lust for women or wealth, neither it is for money, the act does not include any anti-social element like kidnapping or trafficking, the act does not include any dealing in dangerous drugs, nor any act committed for political or power ambitions. And further, the accused was working in BSF at the age of 23 with no criminal antecedents. Thereby, the Apex Court converted the death penalty to the sentence of imprisonment for life.

(2) Rajendra Rai v. State of Bihar

In the case of Rajendra Rai v. State of Bihar, the accused were held guilty of the murder of Krishnandan (deceased 1) and Sir Bahadur (the son of deceased 1), as the accused and deceased had a dispute over the land situated between their houses. The Trial court-ordered death penalty and the High Court confirmed the order. However, the Apex Court was of the view that the case cannot be regarded under the rarest of rare cases. Thereby the death penalty was reduced to life imprisonment.

(3) Kishori v State of Delhi

In the case of Kishori v State of Delhi, the accused was in relation to the mob attack which occurred against the Sikh community immediately after the assassination of Mrs. Indira Gandhi, the then Prime Minister which broke out in several places including Delhi. The appellant was held to be a part of the mob. The Sessions court was of the view that the accused deserves a death sentence, as he has been convicted for several murders and he killed innumerable Sikhs in a brutal manner. The High Court of Delhi confirmed the order. However, the Apex Court had a different opinion. The Court said that the acts conducted during the chain of events shall be considered as one. Further, the act of the accused was not a personal action, was just a part of the group activity which can not be called as a systematic or organized activity. Therefore, the Apex court felt that the act of the accused as a result of the temporary frenzy act, so the court reduced the death penalty to life imprisonment.

(4) State v Paltan Mallah & Ors 

In the case of State Of M.P Through C.B.I., Etc vs Paltan Mallah, the deceased Shankar Guha Yogi, who was a popular and powerful trade union leader was killed. As he had been working for the welfare of the labour, the industrial unit at Bhillai and Durg wanted him to be out of their way. The deceased was the leader of the labourer organization named “CHATTISGARH MUKTI MORCHA” (‘CMM’). The workers at Bhillai asked for help in the protest. To help those labourers SG Yogi shifted to Bhilla with his servant Bhahal Ram. There was a widespread movement, due to this, the leaders of the CMM were attacked by the industrialists. The deceased apprehended that there is a serious threat to his life. On the midnight of 27.09.1991, Bahul Ram heard a noise from the neighbouring room where the deceased was sleeping. The servant found Niyogi lying on the bed in pain because of gunshot injuries. However, the accused Paltan Mallah and others were acquitted by the Sessions and High Court due to lack of evidence. However, the Supreme Court reviewed the matter and reversed the order of acquittal by the lower court. As there was a long lapse of time from the lower court’s decision of acquittal to appeal, the court sentenced him to undergo imprisonment of life.

(5) Sambhal Singh v State of Uttar Pradesh

In the case of Sambhal Singh v. State of UP, wherein the four accused (Sambhal Singh, Jag Mohan Singh, Krishna Mohan Singh, and Hari Mohan Singh) murdered the three children of the Munshi Mall (deceased- the brother of the Sambhal Singh) because of a family land dispute. The Sessions court found them guilty and the High Court confirmed the sentence. However, the Apex Court observed that the age of the four accused was not considered by the lower court. Sambhal Singh was old and the other three were young, therefore, the court reduced the punishment of death penalty to life imprisonment. 

(6) Swamy Shraddananda @ Murali Manohar Mishra v State of Karnataka 

In the case Swamy Shraddananda @ Murali Manohar Mishra v State of Karnataka, the accused was the second husband of the deceased Shakereh. The deceased came from a highly reputed and wealthy family. The accused murdered the deceased after a well-designed plan and executed it accordingly for attaining property which was on her name. The Session Court ordered the death penalty and the same was confirmed by the High Court of Karnataka. However, the Supreme Court converted the death penalty to life imprisonment. This is an important case from the point of view of sentencing and remitting the sentence. The Apex Court clearly differentiated the sentence of imprisonment for life from ordinary life imprisonment and held that the remission is not applicable to the cases where the imprisonment of life is given as a substitute to the death penalty, it means the accused will be in imprisonment till his last breath. 

Commutation of Death Sentence by the State or Central Government Scope

The powers of commutation of the death sentence by the State and Central government is provided under the following provisions of the Constitution:

1. Article 72– gives pardoning power to the President.
2. Article 161– gives pardoning power to the Governor.

The difference between Article 161 and Article 72 are:

1. Article 161 is narrower than Article 72.
2. Article 72 covers the punishment sentenced by a Court Martial, however, Governor is not entitled with such powers.
3. Article 72 covers all death sentences, however, under the ambit of Article 161 death sentences are not covered.

Imprisonment for Life

Life imprisonment is one of the types of punishment which is recognized under Section 53 of the IPC. Earlier this was also known as transportation for life. This punishment is given for serious crimes wherein the convicted remains in prison until his/her last breath. 

Scope of Section 57

Section 57 of the IPC is used when fractions of terms of punishment need to be calculated. However, it is important to understand that this section does not give any implied or explicit right to the prisoner to reduce his life imprisonment to 20 years of the sentence.

Under some sections like Section 116,119,120 and 511 of the Code, the prisoners can ask for relief under this section.

Is Life Sentence does Period of 14 Years? 

In the case of Duryodhan Rout vs State Of Orissa (2014), the Apex Court clearly stated that reading Section 55 of the Code and Section 433 and 433 A of Cr.P.C, life imprisonment is not confined to 14 years of imprisonment, only the appropriate government can commute the life imprisonment of the prisoner.

The government can commute the punishment of life imprisonment to the imprisonment of term equal to or less than 14 years, or if the prisoner exceeded 14 years of imprisonment then he can be released.

In 1961 in Gopal Vinayak Godse vs. The State of Maharashtra & Ors., the question ‘whether there is any section in the law wherein the life imprisonment without formal remission by the appropriate government can be automatically treated as one for a definite period?’ came to the Apex Court as a question of law. Answering the question the court pointed out the observation made by the judicial committee which stated that, the transportation for life shall be deemed to be transportation for 20 years, however, this does not say that it shall be deemed to be considered the same for all purposes. Further, the provisions under which transportation for life has been amended to imprisonment for life can also not be put under Section 57 IPC. Therefore, a sentence of imprisonment for life or transportation for life must prima facie need to be considered as imprisonment or transportation for the whole life of the prisoner till his natural death.

The distinction between ‘Commutation’ under Section 55, Indian Penal Code 1860, and Section 433, Code of Criminal Procedure 1973

There is a thin line difference between Section 55, IPC and Section 433, Cr.P.C. Section 55 of IPC covers only the commutation of life imprisonment for a term not exceeding 14 years. Whereas Section 433 of Cr.P.C. covers the following powers of commutation to the appropriate government:

1. Death sentence- to any other punishment can be given which is recognised under the IPC.
2. Life imprisonment- to imprisonment not exceeding 14 years or fine.
3. Sentence of rigorous imprisonment- to any term of simple imprisonment (within the term he is convicted ) or fine.
4. Sentence of simple imprisonment- Fine. 

However, both provisions give power to the appropriate government to commute the sentencing of the offender without the consent of the offender. For the understanding of the section, the appropriate government can be either State or Central Government. If the order is passed under the matter which is exclusively covered by the union list, then the central government will be considered as an appropriate government. Otherwise, in all other cases, the State Government will have the power to commute the sentence. 

In the case of Harishankar, Gayaprasad Jaiswal vs State Of Gujarat, the Gujarat High Court observed that Section 55 of IPC is independent of Section 433 (b) of Cr.P.C. 

Imprisonment

The general meaning of imprisonment means captivity or to put someone in prison. Under Section 53 of IPC, imprisonment can be of two types. One is simple and the other is rigorous. As per Section 60 of the IPC, the competent court has the discretion to decide the description of sentencing. It can be of various types, like:

1. Wholly or partly rigorous; or
2. Wholly or partly simple; or
3. Any term to be rigorous and the rest simple.

Minimum Wages for Prisoners 

The prisoners who are prisoned in jail get wages for doing work inside the jail. The work done by them either can be voluntary or it can be part of their punishment. The wages of the prisoners are fixed as per their skills. Their classification is based on a) skilled, b) semi-skilled and c) unskilled.

Kerala High Court was the first High Court which took the initiative of giving minimum wages to the prisoners. The National Human Rights Commission (NHRC) after taking into the recommendation of the Mulla Committee proposed Indian Prisons Bill 1996. As per the Bill, it was prescribed that the wages should be fair, adequate and equitable wage rates. While considering the minimum wage rate it shall be prevalent to each State and Union territory agricultural, industry, etc. wage rate. Units of work shall also be prescribed for such minimum wages. The average per capita cost of the food and clothing shall be reduced from the wages and the remaining wages shall be paid to the prisoners.

The wages are given on per day basis. The idea of the prisoner’s wage is to compensate the victim or the relative of the victim from the fund made by the prisoner’s wage. As per Prison Statistics India 2015 of National Crime Records Bureau (NCRB), the highest wages were paid in Puducherry, followed by Delhi’s Tihar and Rajasthan. The wages for skilled varied from Rs.180- Rs.150, for semiskilled Rs.160- Rs.112 and for unskilled Rs.150- Rs.103 as per the top three high waged states.

Forfeiture of Property

Forfeiture generally means the loss of property without any compensation in return, which is the result of the default caused by the person in terms of contractual obligation, or in paying penalty for illegal conduct.

In two provisions the forfeiture of the property has been abolished:

1. Under Section 126 for committing depredation on territories of Power at peace with the Government of India.
2. Under Section 127 for receiving property taken during war or depredation mentioned in sections 126 and 126 of IPC.

Fine

The court may impose a fine as an alternative for imprisonment or can add it is an addition to the imprisonment. In certain cases the fine is added along with imprisonment. Section 63 to 69 covers various fines under the IPC. However, as per Section 64 of the Code, when there is a default in the payment of a fine, the court may order for imprisonment. 

Amount of Fine should not be Excessive

As per Section 63 of the IPC, when the sum is not expressed under the provisions of the Code, the amount of fine to which the offender is liable is unlimited, however, the fine shall not be excessive. 

In the case of Palaniappa Gounder v. State of Tamil Nadu, the Apex Court stated that the sentence given by the court shall be proportionate to the nature of the offence which includes the sentence of fine. And the punishment shall not be unduly excessive.

Sentence of Imprisonment for Non-payment of Fine 

Under IPC Section 64, the following offences are covered:

1. Imprisonment with fine;
2. Imprisonment or fine;
3. Fine only and where the offender is sentenced to:

(i) imprisonment; or 

(ii) fine or both.

In such cases, the court of competence shall direct the sentence to the offender for a certain term. Under Section 66 of the IPC, the court has the discretion to provide any description for the imprisonment. 

In the case of H.M Treasury (1957), the court said that in the case if the death of the convict has occurred then also the fine will be recovered from his property. 

Scope of Section 65

As per Section 65 of IPC, the court shall limit the imprisonment when the offender is sentenced to imprisonment and fine because of non-payment of fine. The limit of imprisonment shall not exceed one-fourth of the term of imprisonment which is the maximum period of the particular offence.

Scope of Section 67

Under Section 67 of IPC, the offences for which this section will be applicable is the offence which is punishable with fine only.

1. The imprisonment so awarded shall be simple only;
2. However, the term shall not exceed the following scale: 

• If fine does not exceed Rs. 50- the term shall not exceed two months;
• If fine does not exceed Rs. 100- the term shall not exceed four months;
• If fine exceeding of Rs. 100 to any amount- term shall not exceed six months. 

Recovery of Fine

Under Sec 421 of the Cr.P.C., the Court after passing the sentence can take the action for the recovery of the fine in two ways:

1. The court can issue a warrant to levy the amount by attaching and selling any movable property which belongs to the offender; or
2. Can issue a warrant to the collector of the district at the place of living of the offender, authorizing him to take the money from the immovable property or movable property or both. 
3. Provided that such actions shall not be ordered by the court if the offender has undergone imprisonment due to the default he made for the payment of the fine. Further, if the court gives any such order as after the offender has undergone imprisonment, then the court shall give special reasons for the same.

Further, in the case of Raju Tiwari v. State of Chhattisgarh, the Chhattisgarh High Court stated that without giving a proper ‘special reason’ the court can not order for the levy of money under Section 421 of CrPC when the offender already had undergone imprisonment for non-payment.

Conviction for Doubtful Offences

As per Section 72 of the IPC, when there is doubt regarding which offence has been committed by the offender and there is a problem to get evidence for the offences committed by the offender, in such circumstances the court can give the lowest punishment if the same punishment provided for all.

Solitary Confinement

Section 73 of the IPC covers solitary confinement (“Sol. Conf.”). The Code gives the description of the way punishment to be ordered by the Court. While giving solitary confinement the court shall keep in mind not to exceed three months in total. The scale is as follows:

• If the term not exceeds more than six months- Sol. Conf. not exceeding one month;
• If the term exceeds more than six months but not exceed one year- Sol. Conf. not exceeding two months;
• If the term exceeds one year- Sol. Conf. not exceeding three months.

Section 74 of the IPC gives the limit of Solitary Confinement while executing the Sol. Conf. the duration shall not exceed fourteen days.

And further, if the solitary confinement given exceed three months, then confinement shall not exceed 7 days in one month. 

Scope of the Sections Providing Solitary Confinement

In the case of Sunil Batra Etc vs Delhi Administration And Ors. the court observed that the Sol. Conf. should not be ordered unless it is deemed to be required as per the offence committed by the offender. The offence shall be extreme violence or the commission of the offence shall be brutally committed by the offender. However, the court felt that Sol. Conf. inhumane and horrendous. 

In the case of Smt. Triveniben & Ors vs State Of Gujarat & Ors, the court had a similar view and held that under Sec 30 (2) of the Prisons Act, the jail authorities do not have right to Sol. confine the prisoner who is under sentence of death. 

Enhanced Punishment 

Scope of Section 75

Under Section 75 of the Code when a person is convicted for the second time of an offence which is punishable under Chapter XII (Offences Relating to Coin and Government Stamps) or Chapter XVII (Offences Against Property), if sentenced for more than three years imprisonment, they are liable to greatly enhanced sentence. 

However, even when it seems like under Section 348 of the Cr.P.C. the magistrate is competent, the magistrate is not competent to award sentence under this provision when viewed with the amendment in Section 30 of Cr.P.C. wherein the Session Judge has the power to adjudicate such matters. Even though Section 75 makes certain classes of cases liable to be enhanced, it is not obligatory to the Court to do so while sentencing.generally this provision is used to give a deterrent effect. Further, it needs to be noted that the previous convictions for the attempt to commit an offence not covered under the ambit of this section.

Compensation to Victims of Crime 

The purpose of the criminal justice system is to protect the rights of the individuals and give punishment to the offenders. In such cases, the accused is caught and he is punished. However, an essential part is left over i.e. the ‘victim’. Earlier no one uses to consider the losses of the victim. Thereby compensation is the method to provide justice to the victim.

Compensation to Victims of Crime from Fine

The IPC provided various provisions under which fine is given as a mode of punishment. However, the fine sometimes is not sufficient enough to realise the actual loss of the victim. And the amount prescribed under IPC is minimal which need to be amended as per the current requirements.

Compensation to Victims of Crime from Victim Compensation Scheme

In 2009, the Central Government ordered the State to prepare a scheme for the compensation of victims. The main objective of the scheme was to support the dependents of the victims who suffered the loss or injury due to offence. Under this scheme, the rehabilitation can also be made.

Compensation to Victims of Crime from Wages of Prisoners

Under this, from the wages of the prisoners, a certain percentage of money is deducted and the saved money is converted into a fund for the welfare of the victims. However, recently a PIL was filed in the High Court of Delhi wherein the deduction of the wage of the Prisoners was considered to be arbitrary in nature and asked for repealing such provisions. Another interesting fact is as per the records of 2006 around Rs.15 crore was collected out of which only Rs.14 Crore is lying unutilised. However, the Delhi High Court held that deduction in prisons wages not wrong if allowed under the law.

Proposals for Reform

The proposals for reform in sentencing can be as follows:

• Reclassification of criminal offences: There is a huge increase in the types of offences, therefore to classify offences into different classes or separating them into different codes will make the Code more understandable and lucid. Further under the different codes the procedure and nature of trail can also be explained.
• The punishments need to be deterrent at the same time it shall not be severe. Therefore, it is time for Indian Judiciary to have a sentencing policy, so there is no space for ambiguity and bias of the Judge which creates a barrier while sentencing. And this step will also reduce the appeals for enhancing or reducing punishment which will be a great relief for the judiciary.
• A proper victim compensation fund can be created under the Code, wherein the confiscated assets from organised crime can also be included.

References

• https://www.loc.gov/law/help/sentencing-guidelines/india.php
• https://www.usip.org/sites/default/files/MC1/MC1-Part1Section2.pdf
• https://indiacode.nic.in/handle/123456789/2263?locale=en
• https://www.iitk.ac.in/wc/data/IPC_186045.pdf
• https://madhavuniversity.edu.in/constitutional-validity-of-capital-punishment.html
• https://www.indianbarassociation.org/constitutionality-of-death-penalty/
• https://shodhganga.inflibnet.ac.in/bitstream/10603/201779/12/12_chapter%205.pdf
• https://www.drishtiias.com/daily-updates/daily-news-analysis/commutation-of-death-sentence
• https://www.srdlawnotes.com/2017/04/punishments-under-indian-penal-code1860.html
• https://www.jatinverma.org/need-for-reforms-in-indias-criminal-justice-system/

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This article has been written by Ansh Mohan Jha, a student of BA LLB, First Year at Pune University. This article encompasses major labour laws that have been enacted to regulate the labour of our country.

Introduction

Unlike developed countries, most of the industrial establishments in India are labour intensive i.e workers are extensively employed to carry out the production of goods and services. To date, labour-intensive methods are preferred in our country because it not only lowers down the cost of production but also provides employment to a myriad of people, but as soon as industrialisation gained pace in our country, a plethora of cases surfaced in which employers had exploited their employees working under them. In some cases, the workers were made to work for long hours at minimal wages while in other ones, they were not remunerated periodically and heavy deductions were made from their salaries over trivial issues. In a nutshell, we can say that the majority of the employers were committing atrocities on their workers. Hence, it became the need of the hour to formulate a set of laws to protect the basic rights of the labourers so that a favourable working environment could be set up. The set of laws which are enacted to uphold the basic rights of labourers and provide them employments and benefits are collectively known as ‘Labour Laws’.

Central and State Laws

In India, the subject of ‘Labour’ falls under the category of concurrent list i.e both central and state governments have the authority to make legislation on this subject. However, there are certain matters on which the state government are not entitled to make any law. 

Labour Jurisdiction  Constitutional Status.

Source: Labour Ministry

Central Statutes

Statutes relating to Industrial Relations

The statutes relating to industrial relations have been enacted with the object of maintaining a healthy and amicable relationship between an employer and an employee. The provisions under these statutes pave the way for the creation of several institutions which not only empowers the members of industrial establishments but also creates a favourable environment to resolve any dispute which may slow down the industrial growth.

Industrial Disputes Act, 1947

Post World War I, workmen rebelled and held strikes against their employers because of the oppressive term and condition of the work, which was solely formulated by employers. In retaliation, employers began to lock out workers, which worsened the relationship between them. Finally, on April 1st, 1947, the Industrial Disputes Act was enacted to provide a permanent machinery for the settlement of industrial disputes amicably and peacefully.

According to this Act, an industrial dispute may be defined as the differences of opinions between workmen and employers or between workmen and workmen, which is linked with employment or non-employment or the terms of employment or with the conditions of labour. 

Primary Objective

The legislative intent of the Industrial Disputes Act, 1947 is to investigate and settle down the industrial disputes in order to maintain peace and harmony among workers and employers of an establishment.

Applicability

The Industrial Disputes Act, 1947 is applicable to the whole of India. Every industrial establishment that is carrying on the production of goods and services, irrespective of the number of workmen employed there falls under the jurisdiction of this Act.

Key Provisions

1. Under the provisions of this Act, various entities such as Works Committee, Board of Conciliation, Courts of Inquiry, Labour Courts, Tribunals and National Tribunals are constituted not only to expedite the settlement of dispute but also to resolve it fairly and peacefully.
2. Neither a worker shall go on an unauthorised strike nor an employee shall declare unwarranted lock-out, contravening the Section 22 or Section 23 of the Act.
3. An employer shall pay compensation to his employees in case of lay-off, closing down of undertakings, or transfer of undertakings.
4. An employer shall not retrench his employees arbitrarily;it is necessary that he follow the rules laid down under the provisions of the Act.

Trade Unions Act, 1926

In layman’s terms, a Trade Union may be defined as an organisation of workers constituted with the object of protecting their basic rights. The workers began organising themselves to prevent employers from exploiting them and to make employers commence welfare schemes for them as well. Moreover, the formation of trade unions thwarted employers to take unanimous decisions and paved the way for collective bargaining as well.

Primary Objective

The Trade Union Act, 1926 has been enacted with the object to provide for the registration of Trade Unions and in certain respects to define the law relating to registered Trade Unions.

Applicability

It extends to the whole of India.This Act is not only applicable to the union of workers but also to the organisation of employers.

Key Provisions 

1. The appropriate Government shall appoint a person known as Registrar for the purpose of registering functional Trade Unions. 
2. Any seven members of a Trade Union may make an application, along with all the required documents such as name and address of the Trade Union, information about the members making the application and information about the office bearers to the Registrar for the purpose of getting the Certificate of Registration.
3. The general funds of a Trade Union shall be spent on the payment of salaries to the office bearers, the payment of expenses to administer it, the payment of compensation arising out of trade disputes, the payment of pensions to its members, and the issuance of policies insuring members against sickness, accident or unemployment, etc. 
4. The certificate of a Trade Union may be withdrawn if the Registrar finds that it was obtained through either a mistake or fraud. In case, a Trade Union violates the provisions of this Act, or it ceases to function, then he may revoke its status.

Statutes relating to Wages

Looking back into history, we find that the employers used to exploit their employees in every possible manner to maximise their profits. In this sub-point, we will discuss the economic exploitation of the workers. The wages that were paid to the workers were so minimal that they could not fulfil their basic needs. Moreover, the wages were not disbursed periodically, and heavy deductions were made from the wages even after enforcing the employees to work for long hours. There was no provision of providing bonuses to the employees. Therefore, the statutes relating to wages were enacted to protect the workers from being exploited economically and to make every employee financially independent.

Payment of Wages Act,1936

Before the enactment of the Payment of Wages Act, 1936, several cases were found where the employees were not getting their remunerations periodically, and at the same time, the employers were making deductions from their salaries over petty issues. In order to fix these two primes issues, this Act came into existence.

Primary Object

The Payment of Wages Act, 1936 has been enacted to regulate the regular remuneration of the workers and to prevent hefty deductions and arbitrary fines from their salaries as well.

Applicability

It is a central legislation and is applicable to the whole of India. It is applicable to every person employed in any factory or certain specified industrial or other establishments.

Key Provisions

1. Under the provisions of this Act, payment should be made to employees before the 7th day of a month if the establishment consists of less than 1000 employees and on 10th day otherwise.
2. Payment should be paid in currency notes or coins. However, an employer could also pay the remuneration by cheque payment or by transferring the due amount to the bank account of an employee after taking his consent.
3. Payment period should not exceed 30 days. 
4. No deductions shall be made except those provided in the Act such as deductions for absence from duty, deductions for damage to or loss of goods, fines, deductions for services rendered, etc.

Minimum Wages Act, 1948

The concept of minimum wages gained ground due to the fact that the workers of an establishment performing the same labour were receiving substantially low wages as compared to the other workers engaged in the same labour in other establishments. In 1929, the Royal Commission on Labour was appointed in India to discuss the wage-fixing process comprehensively. It was again discussed at the 3rd and 4th meetings of the Standing Labour Committee in 1943 and 1944 respectively. It was widely discussed at the sessions of the tripartite labour conference in 1943, 1944 and 1945 respectively. Finally, on 11 April 1946, a Minimum Wages Bill was introduced and the Bill became a law in 1948.

Primary Object

The Minimum Wages Act of 1948 regulates the fixation of the minimum rates of wages for both skilled and unskilled workers employed in an establishment.

Applicability

It is applicable to the whole of India. Any establishment consisting of 1000 employees or more in the respective state falls under the jurisdiction of this Act. 

Key Provisions

The minimum wages shall consist of the following components, namely:

1. A basic rate of wages and the cost of living allowance.
2. A basic rate of wages with or without the cost of living allowance, and the cash value of the concessions in respect of supplies of essential commodities at concession rates.
3. A basic rate, the cost of living allowance and the cash value of the concessions, if any.

• The appropriate Government, under Section 3, shall fix the wages payable to employees in an establishment.
• It shall also review the minimum rates of wages so fixed at regular interval of time. After reviewing the rates of wages, it may revise the minimum rates, if necessary. 
• An employer shall be punishable with imprisonment which may extend to 6 months, or with fine which may extend to 500 rupees or both.

Payment of Bonus Act, 1965

The history of payment of bonus can be traced back to the First World War. During the war, in 1917, certain textile mills disbursed 10% of the wages to their labourers as war bonus. In 1950, the full bench of the Labour Appellate prepared a formula for payment of bonus to the employees of an establishment. Ultimately in 1961, the Central Government constituted a tripartite commission for the purpose of evolving a comprehensive method for the disbursal of bonus to the employees. In 1965, the payment of bonus has been enacted by the Government of India.

Primary Objective

The Payment of Bonus Act, 1965 has been enacted with the object of regulating the payment of bonus to persons employed in an establishment based on its profit and productivity. 

Applicability

This Act is applicable to the whole of India. Every factory and establishment in which twenty or more workers are employed on any day during an accounting year shall be liable to pay the bonus to its employees.

Key Provisions 

1. Every employer is bound to pay a minimum bonus to his employee, which shall be 8.33% of his total salary earned during an accounting year. If the payable bonus is less than 100 rupees, an amount equal to 100 rupees shall be paid to an employee. 

2. The payable bonus shall be disbursed within eight months after the closure of an accounting year, and it shall be paid in cash.

3. Contravenors of the provisions under this Act shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

Statutes relating to Social Security

According to Fridlander, the term ‘Social Security’ may be defined as a program of protection provided by society against the contingencies of modern life like- sickness, unemployment, old age, industrial accident against which the individual cannot be expected to protect himself and his family by his own ability and his foresightedness. In accordance with our constitution, the state is responsible for providing social security to citizens of our country. Over time, social security of employees gained traction in India, and a slew of legislation was enacted to protect workers against contingencies like retirement, resignation, retrenchment, old age, unemployment, death and other similar conditions.

Employees’ Provident Funds and Miscellaneous Provisions Act, 1952

On March 4, 1952, the Employees’ Provident Funds and Provisions Act received the assent of the President after being passed in both houses of the Parliament. The social welfare legislation was enacted to provide social security to the workers of an establishment so that they could lead their life decently during their old age or on the happening of various contingencies such as voluntary retirement, retirement due to incapability of the employee to work, etc. 

Primary objective

The Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 was enacted with the object for providing the institution of provident funds, pension fund, and deposit-linked insurance fund for employees in factories and other establishments.

Applicability

It extends to the whole of India. This Act is applicable to every establishment which is a factory engaged in any industry mentioned under Schedule I of the Act, and in every establishment, twenty or more employees must be employed. The Central Government, by notification in the Official Gazette, may include any establishment to which this Act shall be applicable, employing twenty or more workers.

Key Provisions

1. Under this Act, the Central Government may, by notification in the Official Gazette, formulate a scheme to be known as the Employees’ Provident Fund Scheme to set up provident funds for employees.
2. Every employer shall contribute 10% of the basic wages, dearness allowance and retaining allowance payable to employees to the Fund, and employees’ shall also contribute the same amount to it.
3. The Central Government may, by notification in the Official Gazette, formulate a scheme to be known as the Employees’ Pension Scheme to provide superannuation pension and retiring pension to employees of an establishment. Widow or widower’s pension and children or orphan pension are payable to the beneficiaries of such employees.
4. In order to provide life insurance benefits to employees of an establishment, falling under the jurisdiction of this Act, the Central Government may, by notification in the Official Gazette, formulate a scheme to be known as the Employees’ Deposit-linked Insurance Scheme.

Employees’ State Insurance Act, 1948

In the pre-independence era, the Employee’s Compensation Act, 1923 was enacted to ensure social security to workmen, but after getting independence, our policymakers felt the need to enact a slew of social security legislation to provide social security to workmen and protect them from getting exploited In 1948, one such Act, Employees’ State Insurance Act, 1948, got the assent from the President that provides financial aid to workmen during their sickness, disability, maternity and other similar conditions.

Primary Objective

The Employees’ State Insurance Act, 1948 was enacted to provide financial aid to employees in case of sickness, maternity and employment injury and provide medical benefits to employees of factories and establishments and their dependants.

Applicability

This Act is applicable to the whole of India. It shall apply to all factories, including factories belonging to the Government. However, this Act does not apply to seasonal factories.

Key Provisions

• Under the provisions of this Act, every employee who gets employed in a factory or establishment to which this Act applies shall be insured.
• Under this Act, the contribution payable to an employee shall consist of the contribution payable by the employer as well as the contribution payable by the employee, provided the amount of payable contribution shall be determined by the Central Government. Then, the whole amount shall be paid to the Corporation.
• An insured person shall be entitled to get periodical payments in case of his sickness certified by a duly appointed medical practitioner. Such person may also claim sickness benefit, provided the conditions subject to which such benefit may be given, rates and period thereof shall be determined by the Union Government.
• An insured woman, who is certified by an appropriate authority, shall be entitled to get periodical payments in case of confinement or miscarriage or sickness arising out of pregnancy, confinement, premature birth of child or miscarriage. Such woman may also claim maternity benefit, provided the conditions subject to which such benefit may be given, rates and period thereof shall be determined by the Union Government.
• An insured person, who is certified by an appropriate authority, shall be entitled to get the periodical payment in case of his disablement that is caused during the course of employment. Such person who sustains temporary disablement for not less than thirty days or such person who sustains permanent disablement may claim disablement benefit, provided the conditions subject to which such benefit may be given, rates and period thereof shall be determined by the Union Government.

Payment of Gratuity Act, 1972

The Payment of Gratuity Act, 1972 is social welfare legislation, which was enacted to pay gratuity to workers for their dedicated services in an establishment. Earlier, only a few establishments used to pay gratuity to a specific class of employees. Ultimately, it was felt that every worker engaged in any establishment shall get gratuity from employers. Consequently, the Government of Kerala and the Government of West Bengal enacted the legislation for the same in 1970 and 1971 respectively. Thus, a need for uniform central legislation regarding the payment of gratuity was felt, and as a result of which, the whole matter was discussed in the Labour Ministers’ Conference held in August 1971 and the Indian Labour Conference held in October 1971. Finally, the central legislation for the payment of gratuity came into effect on September 16, 1972.

Primary Objective

The legislative intent of the Payment of Gratuity Act, 1972 is to provide for a scheme for the payment of gratuity to employees engaged in factories, mines, oilfields, plantations, ports, railway companies, shops or other establishments and for matters connected therewith.

Applicability

It extends to the whole of India. This law shall be applicable to every factory, mine, oilfield, plantation, port and railway company. It shall also be applicable to every shop or establishment in which ten or more people are employed on any day of the preceding twelve months.

Key Provisions

1. An employee who has rendered continuous service for not less than five years shall get the payable gratuity after the termination of his service on the following grounds- superannuation, retirement or resignation, death or disablement due to an accident or disease.
2. The employer shall determine the amount of payable gratuity to his employees and send a written notice to the person eligible to get the gratuity and the controlling authority mentioning the amount of gratuity payable to his employee. He shall pay the amount of gratuity within thirty days from the date it becomes payable to the employee. 
3. If an employee does not get the gratuity payable to him within the prescribed time, he shall make an application to the controlling authority regarding the same. The controlling authority, on receiving the application, issues a certificate to the collector to recover the payable amount, along with the compound interest incurred on the amount at an interest rate fixed by the Central Government from the date of expiry of the prescribed time.

Employee’s Compensation Act, 1923 

Before the implementation of the Employee’s Compensation Act, an employer used to pay compensation to his employers if an accident had taken place due to his negligence. An employee was not entitled to get any compensation otherwise, and he had to bear all the loss arising out of medical expenses, deduction from wages and other reparations. In 1884, fatal and major accidents occurred in our country, which led to the formation of a committee consisting of Legislative Assembly, employers’ representatives, workers and experts in insurance and medicine. After meticulous observation, the committee submitted its report to the State, and this Act came into effect.

Primary Objective

The Employee’s Compensation Act, 1923, social welfare legislation, was implemented with the object of paying compensation to workmen for an injury caused by an accident during the course of employment.

Applicability

It extends to the whole of India. It is also applicable to those workmen who are recruited by the companies registered in India and sent abroad. However, this Act does not apply to those areas which are covered by the Employees’ State Insurance Act, 1948.

Key Provisions

1. In the course of employment, if an employee gets injured by an accident, his employer shall be liable to pay compensation as per the provisions of the Act. 
2. If an employee contracts any disease during the course of employment due to the nature of work, he shall be paid compensation because the contracting disease, which is also known as an occupational disease, is treated as an injury under the provisions of this Act.
3. If an employee dies during the course of employment, his employer shall have to pay an amount equal to 50% of his monthly wages multiplied by the relevant factor or an amount equal to one lakh twenty thousand rupees, whichever is more.
4. If an employee gets totally disabled permanently due to an injury caused during the course of employment, his employer shall have to pay 60% of his monthly wages multiplied by the relevant factor or an amount of one lakh forty thousand rupees, whichever is more.
5. If an employee gets partially disabled permanently due to an injury caused during the course of action, his employer shall pay him an amount equal to the compensation given during the permanent total disablement, provided the injury is mentioned in Part II of Schedule I. If the injury is not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement that is proportionate to the loss of earning capacity.
6. If an employee gets temporarily disabled, his employer shall pay him a half-monthly payment of the sum equivalent to 12% of his monthly income.

Statutes relating to Working Hours, Conditions of Services and Employment

In order to regulate working hours, interval for rest, holidays, spread over, wages for overtime work, etc., these Statutes were enacted. After the enactment of these Statutes, every employer needs to follow the conditions of services that are prescribed by these laws, and they have no authority to alter these conditions. 

Factories Act, 1948

The first Factories Act was enacted in 1881. After the enactment of the Act, it has been amended on several occasions, and finally in 1934, a newer version of the Act, drafted on the recommendations of the Royal Commission on Labour, was passed. However, there were several defects in the newer bill even after amending it several times. As a result, the administrative authority of factories was unable to regulate labour properly, which, in turn, hampered the growth of factories as well. Ultimately, on April 1, 1949, the Factories Act, 1948 came into effect, amending all the flaws of the previous Factories Act.

Prime Objective

The Factories Act, 1948 was enacted with the object of consolidating and amending the law to regulate labour in factories. The Act primarily focuses on the health, safety, working conditions of adult workers, working conditions of young employees and welfare of the workers.

Applicability

It extends to the whole of India. This Act is applicable to all such factories in which 10 employees or more are employed on any day of the preceding 12 months, provided the manufacturing process is being carried out with the aid of power. In those factories, where the manufacturing process is carried out without the aid of power, the threshold number of employees should be 20.

Key Provisions

1. Each factory shall be kept clean, and effective arrangements shall be made for the disposal of wastes and effluents. There shall be adequate ventilation by the circulation of fresh air and the level of temperature shall be maintained at such a level that workers could work comfortably without having any fear of getting injured. Every part of the factory shall be provided sufficient and suitable lighting. Moreover, no part of the factory shall be overcrowded to such an extent that can cause injury to workers. In every factory effective arrangements shall be made to provide pure drinking water to workers, sufficient latrine and urinal accommodation, and spittoons.
2. In every factory, the machinery shall be securely fenced and the fence shall be constantly maintained and kept in position. No young person shall operate any machine unless he is properly instructed regarding the operation of machines. Furthermore, women and children are strictly prohibited to work near cotton openers. Floors, stairs and means of access shall be of sound construction and properly maintained. At the same time, effective measures shall be taken to protect the workers from dangerous fumes and gases, the explosion of inflammable dust and gas, and the outbreak of fire. The Act also states that every part of the factory shall be properly maintained and any part of the factory that is dangerous to the lives of workers shall be immediately repaired. 
3. In every factory, proper and adequate washing facilities shall be provided, along with the facilities for storing dry clothing and drying wet clothing. Facilities for sitting shall be provided to employees so that they could take a rest during their leisure. In every factory wherein more than 150 workers are employed. shelters, restrooms and lunchrooms shall be provided and maintained for the use of workers. Moreover, there shall be creches, rooms for the use of children under the age of six, in every factory wherein more than 30 women are employed.
4. No adult worker shall be made to work more than 48 hours in any week. Moreover, he shall not be required to work in a factory on the first day of the week. No adult worker shall be made to work more than 9 hours in any day. At the same time, no worker shall work for more than 5 hours without getting an interval for rest of at least half an hour as well.
5. In any factory, no child who has completed the age of 14 shall be made to work. In addition, a child who has completed his fourteenth year shall only get employment if he possesses a certificate of fitness. In every factory wherein children are employed, the manager shall maintain a register in which the nature of work, working period and information about children are recorded. The period of work for children shall be properly displayed in all those factories wherein children are employed.

Industrial Employment (Standing Orders) Act, 1946

The Labour Committee that was constituted in 1944-1946 identified that the employees were unaware of the employment conditions framed by their employers. The committee wanted to enforce legislation, making it obligatory for the employers to frame employment conditions and get them certified by an appropriate authority, that empowers the workmen to know every nuance of the employment conditions formulated by their employers. As a result of which, in 1946, the Industrial Employment (Standing Orders) Act, 1946 came into effect.

Prime Objective

The Industrial Employment (Standing Orders) Act, 1946 was formulated with the prime object to require employers in industrial establishments formally to define conditions of employment under them. According to this Act, every workman shall have the right to know regarding the condition of work so that they could protect themselves from exploitation.

Applicability

It extends to the whole of India. It applies to every industrial establishment wherein one hundred or more employees are working or were working on any day of the preceding twelve months.

Key Provisions

• An employer shall submit five copies of the draft standing orders that he proposes to adopt in his industrial establishment to the Certifying Officer who is either a Labour Commissioner or Regional Labour Commissioner, along with the details of the workmen employed in his establishment including the name of the Trade Union they belong to if any. Provisions shall be made on every matter that is mentioned in the Schedule.
• Classification of workmen, e.g., whether permanent, temporary, apprentices, or probationers
• Manner of intimating to workmen periods and hours of work, holidays, pay-days and wage rates.
• Shift working.
• Attendance and late coming.
• Conditions of, the procedure in applying for, and the authority which may grant, leave and holidays.
• Requirements to enter premises by certain gates, and liability to search.
• Closing and re-opening of sections of the industrial establishment, and temporary stoppages of work and the rights and liabilities of the employer and workmen arising therefrom.
• Termination of employment, and the notice thereof to be given by employer and workmen.
• Suspension or dismissal for misconduct, and acts or omissions which constitute misconduct.
• Means of redress for workmen against unfair treatment or wrongful executions by the employer or his agents or servants.
• Any other matter which may be prescribed.

1. Standing orders shall be approved and certified only if the provisions framed on each matter that is specified in the Schedule are in conformity with the provisions of this Act.
2. The Certifying Officer, on receiving the copies of draft standing orders, shall send the draft copies to the Trade Unions or the representatives of the workmen to file any objection on any of the matters specified in the standing order. After hearing employers and the grievances of workers, he shall decide whether to modify or make any changes in the standing order.

Contract Labour (Regulation and Abolition) Act, 1970

Nowadays employers are keen to employ contract labour in their establishments because it not only enables employers to make contract labourers work at lower wages but it also helps employers to exploit them in every possible manner as they can not exercise the rights given to permanent workers. In order to protect the contract labourers in India from the exploitation of employers, the Contract Labour (Regulation and Abolition) Act came into effect in 1970. 

Primary Objective

The Contract Labour (Regulation and Abolition) Act, 1970 was enacted with the object of regulating the employment of contract labour and introducing better conditions of work. This Act also aims at abolishing the employment of contract labour in those establishments where the work can be done by regular labourers, the work is done perennially, and the employment of permanent workers is necessary due to the nature of work, etc.

Applicability

It is applicable to the whole of India. It applies to every establishment wherein twenty or more workmen are employed or were employed on any day of the preceding twelve months as contract labour. A contractor also comes under the jurisdiction of this Act if he employs or employed twenty or more workmen on any day of the preceding twelve months as contract labour.

Key Provisions

1. Both the Central Government and State Government shall constitute a board for taking advice on such matters arising out of the administration of this Act. The board constituted by the Central Government is known as Central Advisory Board while the board constituted by the State Government is known as State Advisory Board.
2. Every principal employer of an establishment to which this Act applies shall make an application to the registering officer, who is appointed by the appropriate Government, along with all the required documents for the registration of his establishment under the provision of this Act. If the registering officers are confirmed that all criteria are met, he may register the establishment under this Act. A contractor needs to obtain a license under the provisions of this Act to undertake any work through contract labour.
3. The employment of contract labour is strictly prohibited in any work in any establishment if it is done perennially, it is done ordinarily through regular workmen, it is sufficient to employ a considerable number of full-time workers and it is necessary for the industry, trade, business, manufacture or occupation that is carried on in the establishment.
4. Those establishments that fall under the jurisdiction of this Act shall provide canteens, restrooms, pure drinking water, a sufficient number of latrines and urinals and first aid facilities to contract workmen.

Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979

In search of better job opportunities, workmen often migrate from one place to another. However, the migrant workers were not treated equally and discriminated against the native workers. The working conditions of the migrants were harsher than that of the native ones. In order to uphold the rights of migrant workers and protect them from exploitation, the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 came into force in 1979.

Prime Object

The Inter-State Migrant Workmen Act, 1979 was enacted with the purpose of regulating the employment of inter-State migrant workmen and providing for their conditions of service.

Applicability

It extends to the whole of India. It applies to every establishment in which five or more inter-State migrant workers are employed or were employed on any day of the preceding twelve months and every contractor who employs or employed five or more inter-State migrant workers on any day of the preceding twelve months.

Key Provisions

1. The wage rates, holidays, hours of work and other conditions of service for inter-State workmen employed in an establishment shall be the same as those applicable to other workmen performing the same duty in the same establishment.
2. Every contractor shall pay displacement allowance to every inter-State migrant worker which shall be equal to fifty per cent of the monthly wages payable to him or seventy-five rupees, whichever is higher.
3. Every contractor shall pay journey allowance to every inter-State migrant worker, which shall not be less than the fare from the place of residence to the place of work.
4. A contractor shall ensure that every workman gets regular payment, suitable working conditions, residential accommodation, medical facilities, equal pay for equal work, protective clothing. In case of a fatal accident, he shall report to the authorities of both the States and relatives of the workman.

Weekly Holiday Act, 1942

The Weekly Holidays Act, 1942 came into force so that employees get a weekly off, that is any day during the week when employed persons are exempted from doing work and exempted from coming to the workplace as well.

Primary objective

The Weekly Holiday Act, 1942 was enacted with the purpose to provide for the grant of weekly holidays for a whole day to persons employed in shops, restaurants and theatres.

Applicability

It extends to the whole of India. It applies to the persons employed to shops, restaurants and theatres.

Key Provisions

1. Every shop shall remain entirely closed once in a week. The owner of the shop shall specify the day of closure, and exhibit the notice in a conspicuous place in the shop.
2. Every person employed in a shop, restaurant or theatre shall be allowed a holiday each week. However, this provision is not applicable to those employees who occupy a position of management in the shop. The persons employed in a confidential capacity are excluded as well.
3. The State Government may, by notification in the Official Gazette, provide additional half-day closing or holiday to the employees of shops, restaurants and theatres.

The Plantation Labour Act, 1951

More than 1 million labourers who are employed in the plantation industry, i.e., tea, coffee, rubber and cinchona plantation, have been excessively exploited because of their illiteracy and lack of other employment opportunities. Most of the plantations are located in isolated areas. As a result, workers have no other option but to work on plantations to earn their livelihood. To date, their living conditions are most dismal as compared to that of workers employed in other industries. That’s why in 1951, the Parliament passed the Plantation Labour Act, 1951 to safeguard the rights of plantation workers and to protect them from exploitation as well.

Prime Objective

The Plantation Labour Act, 1951 was enacted with the object of providing for the welfare of labour, as well as regulating the conditions of work, in plantations.

Applicability

It extends to the whole of India. It applies to all tea, coffee, rubber and cinchona plantations. The State Government may, by notification in the Official Gazette, apply it to other plantations as well.

Key Provisions

1. In every plantation, effective arrangements shall be made by an employer to provide a sufficient supply of pure drinking water, a sufficient number of latrines and urinals at convenient locations and medical facilities to his employees.
2. The State Government may make rules that there shall be one or more canteens in every plantation wherein one hundred and fifty workers are employed, The canteens shall be provided and maintained by the employer. Moreover, educational, creche recreational and housing facilities shall also be provided to the plantation workers.
3. An adult worker shall not work more than 54 hours, while an adolescent or child shall work for only 40 hours on a plantation. A worker shall not work more than 12 hours a day, inclusive of the period for rest and the time spent in waiting. Moreover, no worker shall work for more than five hours without having an interval for rest. A day of rest shall be given to all workers during a week.
4. Every woman and child, who has completed his twelfth year, shall be made to work only between 6 A.M. and P.M.

The Mines Act, 1952

The Mines Act came into force in 1952 to regulate the working conditions of those workers who were either working in mines below ground or mines above ground. This Act also restricts the employment of young employees and women in the mines below ground. The provisions of this Act also provides for the safety and health of mineworkers. 

Prime Objective

The Mines Act, 1952 was enacted with the object of amending and consolidating the law relating to the regulation of labour and safety in mines.

Application

It extends to the whole of India.

Key Provisions

1. In every mine, effective arrangements shall be made to provide drinking water facilities, sufficient number of latrines and urinals and proper medical facilities. The Chief Inspector or an Inspector may give notice to the owner, agent or manager of the mine if the safety of mine workers are in danger due to the ongoing practices in the mine. 
2. No worker shall be allowed to work more than 6 days in a week.
3. No adult worker shall be allowed to work for more than 48 hours in any week or for more than 9 hours in any day, provided a worker works above the ground.
4. No adult worker shall be allowed to work for more than 48 hours in any week or for more than 8 hours in any day, provided a worker works below the ground.
5. No person shall be allowed to work in any mine if he has not completed the age of 18 years.
6. No woman shall be employed in any part of the mine which is below the ground. A woman shall work in those mines that are above the ground between 6 A.M and 7 P.M.

The Dock Workers (Safety, Health And Welfare) Act,1986

Those workers who are employed in any work within the vicinity of any port for the purpose of loading, unloading, movement or storage of cargoes,i.e, anything carried in a ship or vessel, into or from a ship, port, dock and storage place are known as dock workers. To provide for the safety, health and welfare of the dock workers, the Dock Workers (Safety, Health And Welfare) Act, 1986. came into effect in 1986.

Primary Objective

The Dock Workers (Safety, Health And Welfare) Act, 1986 was enacted with the prime object to provide for the safety, health and welfare of dock workers.

Applicability 

It extends to the whole of India. It shall be applicable to every port. However, it shall not apply to any ship of war of any nationality.

Key Provisions

1. No dock worker shall wilfully alter or neglect the use of any appliance, convenience or other things that are provided for the purpose of securing safety, health and welfare of dock workers. Nor shall he wilfully and without any reasonable cause to take any such action that is likely to endanger his life or other workers’ lives.
2. The appropriate Government may direct inquiry into cases of accidents or diseases occurring in connection with dock workers.
3. The appropriate Government may, by notification in the Official Gazette, appoint the Chief Inspector and inspectors subordinate to him for the purpose of dock safety.
4. If a person takes any step in a good faith then no legal proceedings shall lie against him.
5. The appropriate Government may, by notification in the Official Gazette, frame rules in accordance with the provisions of this Act to provide for the safety, health and welfare of dock workers. Effective arrangements shall be made to provide adequate ventilation and suitable temperature, fencing of machinery, fire and explosion protection, proper handling of dangerous substances, protective equipment, sanitary, washing and welfare facilities, medical supervision, ambulance rooms and first aid facilities, investigation of occupational accidents, dangerous occurrences and diseases, etc. 

Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996

Those workers who are employed in the process of construction, repairs, maintenance and demolition of buildings, streets, roads, drainage, railways, etc. are generally known as the building or other construction workers. The Building and Other Workers (Regulation of Employment and Conditions of Service) Act was enacted in 1986 to regulate their employment and conditions of service. 

Primary Objective

This Act was primarily enacted with the object of regulating the employment and conditions of service of building and other construction workers. Moreover, this Act also ensures their safety, security and welfare during the course of employment.

Application

It extends to the whole of India. It applies to every establishment which employs or had employed ten or more building workers on any day in the preceding year in any building or construction work.

Key Provisions 

1. Every building worker who has been engaged in any building or other construction work for not less than 90 days in the preceding 12 months shall be eligible for registration as a beneficiary under this Act, provided his age should be greater than 18 years, but less than 60 years.
2. Every building worker registered as a beneficiary shall be entitled to get the benefits from the Building and Other Construction Workers’ Welfare Board constituted under the provisions of this Act. Some of the benefits are payment of medical expenses, maternity benefits, payment of pension and financial assistance in case of accidents etc.
3. The appropriate Government It may provide a day of rest every week and provide for payment in respect of such days of rest, and if a worker works on the day of rest then it may also fix the wage rate which shall not be less than overtime wage as specified under the provision of this Act may fix the number of hours of work on a normal day for a building worker.
4. Effective arrangements shall be made to provide drinking water facilities, sufficient latrines and urinals accommodations, temporary living accommodation at the construction site, creches, first aid and canteens to building workers.
5. Safety committees shall be constituted for every establishment in which five hundred or more building workers are employed. The appropriate Government may also formulate policies for the safety and health of building workers. Such rules may include the following matters, namely- a safe transportation system, precautions to be taken in case of fire, safeguarding of machinery, proper handling of explosives precaution to be taken while demolishing any part of the building, and adequate and suitable lighting of every workplace, etc. 

Building and Other Construction Workers Welfare Cess Act, 1996

The Building and Other Construction Workers Welfare Cess Act has been passed in 1996 to augment the resources of the Building and Other Construction Workers’ Welfare board that was constituted under the provisions of the Building and Other Construction Workers (Employment and Conditions of Service) Act, 1996 to provide benefits to the building and other construction workers.

Primary Objective

The Building and Other Construction Workers Welfare Cess Act was enacted with the object of levying and collection of cess on the cost of construction incurred by employers. The collected cess shall be provided to the Building and Other Construction Workers” Welfare Boards that are constituted to provide benefits building and construction workers.

Application

It extends to the whole of India.

Key Provisions

1. Cess shall be levied on the cost of construction incurred by an employer at such rate not exceeding two per cent, but not less than one per cent. It shall be collected and provided to the welfare board of the building workers.
2. Every employer liable to pay cess shall have to furnish returns otherwise, a notice shall be given regarding the same.
3. The appropriate authority shall decide the cess payable by an employer, depending on the returns he furnished.

Sales Promotion Employees (Conditions of Service) Act, 1976

A person who is employed or engaged in any work relating to the promotion of sales or business or both is known as sales promotion employees. The Parliament of our country passed separate legislation to safeguard their rights and regulate their conditions of service in 1976: The Sales Employees (Conditions of Service) Act. 

Primary Objective

The Sales Promotion Employees (Conditions of Service) Act, 1976 was enacted with the object of regulating the conditions of service of sales promotion employees in certain establishments.

Applicability

It extends to the whole of India. It shall be applicable to every establishment engaged in the pharmaceutical industry. However, the Central Government may, by notification in the Official Gazette, may apply this Act to any establishment engaged in any notified industry.

Key Provisions

1. The Central Government may declare certain industries as notified industries if it finds employees of those industries are engaged in any work relating to the promotion of sales or business or both.
2. Apart from holidays such as casual leave or other kinds of leave as may be prescribed, a sales promotion employee shall also be granted earned leave and leave on a medical certificate.
3. Every employer shall issue an appointment letter to a sales promotion employee in the prescribed manner.
4. The provisions of the Workmen’s Compensation Act, 1923, the Industrial Disputes Act, 1947, the Minimum Wages Act, 1948, the Maternity Benefit Act, 1961, the Payment of Bonus Act, 1965 and the Payment of Gratuity Act, 1972 shall be applicable to sales promotion employees.

Labour Laws (Exemption from Furnishing Returns and Maintaining Registers by Certain Establishments) Act, 1988

In 1988, the Labour Laws (Exemption from Furnishing Returns and Maintaining Registers by Certain Establishments) Act came into force to ease down the process of furnishing returns and maintenance of registers in relation to small establishments. Employers in small establishments were exempted from obeying the complex processes involved in furnishing returns and maintaining registers. 

Primary Objective

This Act was enacted for the purpose of simplifying the procedure for furnishing returns and maintaining registers in relation to establishments employing a small number of persons under certain labour laws.

Applicability

It extends to the whole of India.

Key Provisions

1. On the commencement of this Act, an employer of any small establishment to which a Scheduled Act applies shall be exempted from furnishing the returns or maintaining the registers required to be furnished.
2. The commencement of this Act shall not affect any provision of a Scheduled Act that was followed in any small establishment in accordance with the Scheduled Act.
3. The Central Government may, by notification in the Official Gazette, amend any form listed in the Second Schedule of the Act.

Statutes relating to Equality and Empowerment of Women

A slew of statutes was passed by the Parliament of our country to prevent discrimination against employed women. In most of the establishments, the wages of women were lesser than that of men even though both men and women do the work of similar nature. Moreover, women were often asked to work overtime without any additional wage, and in many cases, they were dismissed by their employers during the maternity period. By and large, women were exploited by their employers, which discouraged women from doing any work. The policymakers of our country passed several laws to ensure proper representation of women in the workforce. Some of the statutes are discussed below.

The Maternity Benefit Act, 1961

The Maternity Benefit Act, 1961 was a great step taken by the Government of India to protect the employment of women while they undergo maternity. Before the enactment of this Act, the employers used to deduct the salary of a woman during her maternity period and some of the employers also used to dismiss them. This Act also includes several maternity benefits that an employer is liable to provide to every woman.

Primary Objective

The Maternity Benefit Act, 1961 was enacted with the prime object of regulating the employment of women in certain establishments for certain periods before and after child-birth. A woman shall also be entitled to get the maternity benefits under the provisions of this Act.

Application

It extends to the whole of India. It is applicable to every factory, mine or plantation including any such establishment belonging to Government and to every establishment in which persons are employed to showcase equestrian, acrobatic or other performances. Moreover, this Act extends to every shop or establishment wherein 10 or more persons are employed, or were employed on any day of the preceding twelve months.

Key Provisions

1. No employer shall knowingly employ a woman for a period of six weeks following the day of her delivery. In addition, no woman shall work in any establishment during the six weeks from the date of her delivery.
2. Every woman shall be entitled to receive her maternity benefits from her employer at the rate of the average daily wage for the period of her actual absence, provided the woman has worked not less than 80 days in the twelve months immediately preceding the date of her expected delivery.
3. Every woman shall get nursing breaks to look after her child, apart from the interval for rest.
4. Every establishment wherein fifty or more employees are employed shall have the creche facility. 
5. An employer shall not dismiss any woman who makes her unavailable for work in accordance with the provisions of this Act.

The Equal Remuneration Act, 1976 

To fix the gender pay gap that existed in the majority of establishments, the Equal Remuneration Act was passed in 1976. Before the enactment of this Act, women were usually paid lower wages than men even after doing the same work or work of similar nature, which discouraged women from doing work as well. The Act not only encouraged women to start working but also protected their right to equality.

Primary Objective

The Equal Remuneration Act, 1976 was enacted with the object of providing for the payment of equal remuneration to men and women workers. It also prohibits discrimination against woman, on the ground of sex, when it comes to employment.

Applicability

It extends to the whole of India.

Key Provisions

1. An employer shall pay equal remuneration to men and women workers employed by him if they perform work of similar nature. He can not discriminate against his employees on the ground of sex. To comply with the provisions of this Act, an employer shall not reduce the salary of any of his employees. 
2. No employer shall discriminate against women when it comes to recruitment for the work of a similar nature, promotions, training or transfer, except where the employment of women in such work is prohibited.
3. The appropriate Government may constitute an Advisory Committee to take suggestions on how to increase the employment opportunities for women and to determine the extent to which women may be employed in such establishments or employments.

Prohibitive Labour Laws

Prohibitive Labour Laws were formulated by our legislators to ensure the extermination of bonded labour, child labour, sexual harassment of women at the workplace, and at the same time, these laws regulate the working conditions of young employees and women. Before the enactment of these laws, employers used to exploit child labourers and bonded labourers at a massive scale. The working conditions of women were dismal and they were also traumatised sexually. Therefore, a slew of such laws was enacted to curb the illegal practices of employers.

Bonded Labour System (Abolition) Act, 1976

Bonded labour was a practice in which employers used to give loans at a high rate of interest to workers and in most of the cases, Primary Objective workers, earning a low wage, failed to return the loan to their employers. For the recovery of loans provided to workers, they were coerced to work as bonded labourers. To end the practice of bonded labour across the country, the Bonded Labour System (Abolition) Act, was passed in 1976.

Prime Objective

The Bonded Labour System (Abolition) Act, 1976 was enacted with the object of abolishing bonded labour system to prevent the physical and economic exploitation of the weaker sections of the people.

Applicability