This article is written by Mohd Sarim Khan from Lloyd Law College. This article will discuss the scope and various provisions related to the Hindu marriage act of 1955.

Introduction

Hindu Marriage refers to kanyadan which means gifting a girl to the boy by the father with all the tradition and rites or custom. Hindu marriage is an ancient tradition which is prevailing from the Vedic periods to the modern world with different modifications that have occurred until now. There are 16 sacraments in the Shastri Hinduism in which marriage is one of the important sacraments of Hinduism.

Section 2 of the Hindu Marriage Act 1955 states that this act applies to any person who is a Hindu by birth or who has changed his/her religion to either any of its forms such as Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj. Any person who is a Buddhist, Jain, or Sikh also comes under this act. It also applies to any person living outside this territory except who is a Muslim, Christan, Parsi, or Jew by religion or it is proved that such person is being governed by Hindu law. It is believed that it is the strongest bond between husband and wife. It is an unbreakable bond that remains even after death. The importance of marriage is not to the extent of one generation but it is an in-depth belief of Hinduism. Without a wife, a person is considered incomplete while performing any rites of Hinduism. It is very important to perform all the rites with the wife.

Who are Hindus?

Hindu by Religion

The Medieval period of Hinduism lasted from 500 to 1500 AD. Hinduism is the oldest religion which contains a wide range of tradition and culture which are followed by all the Hindus across the globe. Any person who is a Hindu by religion or born in Hindu family with Hindu father or mother in any of its forms such as Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj or any person who is a Buddhist, Jain, or Sikh is also a Hindu by religion. Thus, any person except a follower of Muslim, Christan, Parsi, or Jew religion is a Hindu.

Hindu by Birth

Any person born in a Hindu family or has a Hindu father or mother such a person is considered as Hindu by birth. Any person born in any community apart from Muslim, Christian, Jews is also a Hindu. Any child, legitimate or illegitimate if either of his parents is Hindu, if he is brought up by the parent who is hindu shall be considered as Hindu by birth.

The Concept of Marriage under the Hindu Law

For a long period of time Hindu marriage rites have been changed accordingly due to the needs and convenience of the people from time to time. It is the relationship between husband and wife. According to Hinduism, this sacrament is one of the most important sacraments out of 16 sacraments in Hinduism. It is a sacred tie that can’t be broken. It is a relationship from birth to birth, it is a bond which continues after rebirth and death. According to Veda, a man is incomplete until he gets married and meets with his partner.

Sacramental Nature of Marriage

Characteristics of the Sacramental Nature of a Hindu Marriage

Hindu marriage is “a religious sacrament in which a man and a woman are bound in a permanent relationship for the physical, social and spiritual need of dharma, procreation and sexual pleasure.”

There are three characteristics of the sacramental nature of marriage:

It is an enduring bond of the husband and wife which is permanent and tied even after death and they will remain together after the death.
Once it is tied cannot be untied.
It is a religious and holy union of the bride and groom which is necessary to be performed by religious ceremonies and rites.

Hindu marriage is considered as one of the most important sacraments. In ancient times, there was no need for the girls’ consent. Fathers have to decide the boy without asking for her advice or consent. It is the sole duty of the father to find a suitable boy. If the person was of unsound mind or minor at the time of the marriage, it was not considered as a void marriage. But in the present world, consent and mental soundness of the person are a very essential part of the Hindu Marriage, without the absence of any such element marriage will be annulled or void or no legal entity.

Section 12 of the Hindu Marriage Act 1955 lays down that when one’s consent is not obtained, the marriage is considered void. It shows that despite the absence of consent of the bride, the marriage is valid and legal.

The nature of modern marriage is contractual. Thus, it accepts the idea of equality and liberty. It has been adopted due to western Ideas. There must be an agreement of voluntarily entering into it by both parties.

Thus, the Hindu marriage is not a contract and neither is it a sacrament. But it can be said it is a semblance of both.

Forms of Marriage under the Hindu Law

The ancient Hindu law recognized three forms of Shastric marriages as regular and valid. These were Brahma (bride given gift by father), Gandharva (mutual agreement of bride and bridegroom) and Asura (bride virtually sold by the father).

There are three forms of marriage which are been described in Shastri’s law as valid and regular:

Brahma Marriage

The bride is given as a gift to the groom by the father generally known as the arranged marriage that is mostly followed in India. The act called marriage which is performed according to the Shastric rites and ceremony or customary ceremonies prevalent in the community.

Gandharva marriage

There is the mutual consent of the bride and groom and is generally known as love marriage. These marriages are prevalent in the present modern world. where the bride and groom select each other and perform marriage according to the Shatri rites and ceremony.

Asura marriage

Asura marriage is aggressive and forced marriage where the bride is sold by the father, it is still prevalent and performed very commonly even by high-class Hindu.

The Current Hindu Marriage Act doesn’t define or describe or acknowledge these forms of marriage. So, in the present world, people are not obsessed with only these forms of marriage. People are more aware of their choices and instead of accepting their father’s choice they want to select their partner on their own.

Ceremonies to be performed in a Hindu Marriage

Marriage in the Hindu religion is a sacred tie performed by certain ceremonies and rites which are necessary for a valid marriage. There are three important stages wherein certain ceremonies are to be performed.

Sagai -Hindu engagement is an important pre-wedding ritual in Indian culture, it is a type of culture in which the bride and groom come face to face and are engaged with a religious bond by each other’s families. The Hindu tradition of “Vagdanam” dates back to Vedic period where the groom’s father gives their words to the bride’s father that they will accept their daughter and will be responsible for their future well being. There are various terms which are used instead of engagement in different places like Mangi, Sagai, Ashirbad, Nishchayam etc.
Kanyadan– The word kanyadan consists of two words- Kanya which is maiden or girl and daan which means donation. It is the donation of a girl. It is an age-old tradition where the bride’s father presents his daughter to the groom, giving him responsibility for her future wellbeing. It is an emotional and sentimental laden ritual which recognizes the sacrifice a father makes in order to ensure her daughter’s happiness. It is followed till now from the Vedic times. It is an integral part of traditional Hindu marriage.
Saptapadi– Saptapadi is a very important and integral component of a typical Hindu marriage. It is an activity which is undertaken by the bride and groom in front of the fire god, where couples go around the sacred fire seven times while reciting certain vows. This movement is also known as phera. Fire or Agni is considered highly sacred in the Hindu religion, vows taken in front of the Agni are unbreakable. The god of fire, Agni deva is considered to be a witness to be solemnization of the marriage as well as a representative of the supreme being to provide his blessing to the newlywed couple. Section 7 of the Hindu marriage act 1955 states the solemnization of the Hindu marriage, a Hindu marriage may be performed by all the ceremonies and rituals of both the party or either anyone. It is concerned with the Saptapadi which means that taking seven rounds around the fire with their partner; after its completion, marriage becomes complete.

Conditions for validity of a Hindu Marriage

Section 5 A valid marriage shall be solemnized between two Hindus if the following conditions are fulfilled:

Any person doesn’t have a spouse living at the time of the marriage. According to the Hindu Marriage Act, It is not permissible to have two living wives at the same point in time, which amounts to bigamy. It is punishable under Section 494 of the Indian Penal Code.
The groom shall attain the age of 21 and the bride attains the age of 18. It is necessary at the time of marriage the person shall attain the specified age given in this Act.
The consent shall not be given by coercion or threat. In the modern world, a father can’t get the girl married to any without a girl’s consent. Marriage will be void.
They don’t fall under the Sapinda relationship, or within the degree of prohibited relationship unless it is allowed by their custom or tradition.
The person shall be not suffering from any insanity or mental disorder at the time of the marriage.

Essential elements of Section 5

Condition of monogamy

Section 5 (i) of the Hindu marriage act 1955 states that at the time of the marriage a person should not have a living spouse. It is not permissible in Shastri law to have two married women at a point in time. It is also punishable under the Indian penal code 1955.

Bigamy

Bigamy amounts to having two living wives at the same time which is illegal in Hindu law; without finalizing the divorce from the first marriage, a person can’t marry someone else. The first one will be considered a legal marriage. The provision of section 494 and 495 of the Indian Penal Code 1860 will be applicable to the person performing the second marriage after already having a living husband and wife.

Conditions regarding mental health or capacity

Section 5 (ii) (a),(b),(c) Hindu marriage Act 1955 discusses the condition of valid of Hindu marriage related to mental health or capacity of the person; if a person is suffering from unsoundness of mind at the time of marriage, Marriage will be considered as void. It is necessary that a person shall be capable of giving valid consent at the time of the marriage.

Condition for marriageable age

Section 5 (iii) of the Hindu Marriage Act 1955 states that the bridegroom has completed the age of twenty-one and the bride has completed the age of eighteen years at the time of the marriage. If the person has not attained given in section 5 (iii) the marriage will be void it has no legal status.

Sapinda relationship

All prohibited relationships are Sapinda but all Sapinda relationships are not prohibited relationships. Sapinda relationship is the chain of all the relationship from the side of the brother and sister in the family; they can’t marry each other due to prohibited relationship and also their generation till three generations from the girl side and five-generation from the boy side, till that they all are in Sapinda relationship. Avoidance of Sapinda can be achieved as the girl reaches the fourth generation and boy (brother) reaches the sixth generation after that both families can have a marriage that will be neither prohibited relationship nor Sapinda relationship.

Some other essential provisions for a Hindu Marriage

Solemnization of Marriage (Section 7)

Section 7 of the Hindu marriage act 1955 states the solemnization of the Hindu marriage, a Hindu marriage may be performed by all the ceremonies and rituals of both the party or either anyone. It is concerned with the Saptapadi which means that taking seven rounds around the fire with their partner; after its completion marriage becomes complete and binding.

Each party to the marriage declaring in any language shall be understood by each of the parties.
Each party to the marriage shall put the ring upon any finger of the other.
tying of the thali.

The marriage renders to be valid if it is performed between Hindu couples according to the customary ceremony and rituals of each party or any one of them. Any child born after performing the marriage according to this section will be legitimate. The beginning of the child before the dissolution of the marriage is not the cause to dissolve the marriage. It is one of the most important duties of the father to bring up the girl child, find a suitable boy for her and do Kanyadan for the girl. Girl leaves their gotra and enters into the gotra of the boy. It is an unbreakable bond that is tied for the generation to generation. It is a sacrament, not a contract.

Registration of Marriage (Section 8)

Section 8 states that:

The state government is facilitating the provision as a proof to Hindu so that the person comes into a valid marriage with the prescribed manner.
All the rules made in this section shall be laid before the state legislature as soon as May.
Hindu marriage registrar has all the powers and reasonable time open for the inspection and collects evidence and certified them after the payment of a prescribed fee.

Void Marriages (Section 11)

Section 11 of the Hindu Marriage Act 1996 states that any marriage solemnized after the commencement of the Hindu Marriage Act 1955, if it contravenes any of the provisions of this act, the marriage will be void. The marriage will have not any legal entity nor will it be enforceable.

Voidable Marriages (Section 12)

Any marriage solemnized after or before the commencement of this will be voidable on the following grounds:

No sexual intercourse has been done after the marriage due to the impotence of the Husband.
Marriage is in contravention of Section 5 (ii) of this Act which states that the bride shall attain the age of 18 and the groom shall attain the age of 21.
There shall be a consent of the bride.
If the husband has pregnant another woman other than the wife.
The wife has filed a request for annulling the marriage.

Conclusion

This article discusses the concept of Hindu marriage; to whom Hindu marriage act 1955 applies, how many forms of marriage are valid in Hindu marriage and different ceremonies performed before the marriage, validity of a marriage, who is sapinda, ritual, and customs of the marriage.

References

Online Sources

https://www.toppr.com/guides/legal-aptitude/family-law-II/nature-of-marriage-under-hindu-law/

Bare Act

Youtube

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This article is written by Arijit Mishra, from KIIT School of Law, Odisha. This article talks about how to draft a patent claim and what are the common mistakes faced while drafting the claims.

Introduction

A patent is an intellectual property given to inventions and it’s an exclusive right for a limited period of time given by the government to the patentee in exchange of the disclosure of their invention. An invention of a product or the process of invention that is new, which has an inventive step and also capable for industrial application can be patented in India.

What is a patent claim?

Patent claim is the part of the patent specification which defines the borders of patent protection. They form the substructure of the protection given by law by morality of patents. One of the major functions of the patent claim is that of forming the ambition of the patent. In a way, claims create a border line if someone crosses it then it will amount to infringement of the patent holders rights. As the claims are so significant, it must be perfectly worded for complete protection. If it is not properly worded then it may cause problems in relation to prosecution and litigation. So, it is to advise the inventors to take help from legal professionals in drafting claims as it is considered as a legal document. An exclusive is provided to the patent to prevent others from selling, making or offering for sale of the subject matter is defined by the claims.

Types of patent claims

Patent claims are classified on the basis of drafting, invention and structure.

On the basis of Drafting

Original claims

Original claims are known as principle claims. They have to define the essential features of novel invention. The inventive process must be properly defined in respect of prior art.

Dependent claims

These claims are supported by independent claims. They are dependent on independent claims that are mentioned in the specification.

On the basis of Invention

Product claims

These are the claims for the protection of the product. For instance, some medical products are protected because the inventor has to submit the chemical composition of the product which he wants to protect.

Process claims

Such claims are filed on a new innovative process. The end result will not get the protection, only the process of that invention can be protected.

On the basis of Structure

Composition of Matter claims

These claims are commonly and significantly used by patent applicants. If the inventor finds that the invention differs in the prior art that he can claim protection.

Means plus Function claim

These claims are for computer related inventions because they are not treated as conventional patent claims. These claims state the scope of invention. The term must be supported by the description in the claim.

What are the Advantages and Disadvantages of Patent Claims?

Advantages

They protect the Intellectual Property

Well written patents claims gets good patents. It helps in keeping exclusive rights on your inventions and designs. If someone sells your invention or design then you can protect it through prosecution.

You can add more

If you file a patent application then it should be complete. After completion, if you think of an important claim then later on you can add it. You can also add or amend claims after prosecution. Be sure to make high quality claims from the first because without claims your invention or designs won’t be patentable.

Disadvantages

They can be too broad

Many of the claims have broad statements at the starting. The statement should be more specific. If your claim includes too broad a statement then it won’t be approved.

They can be too narrow

Sometimes the claims get too narrow, the claims should be specific to describe your unique invention. Sometimes if your claim is narrower than they exclude potential copies. Specific claims only don’t give the protection that you need there must be some description to it to support the claims.

How to draft a patent claim?

By looking at the patent claim format and types of the claims published in the world by the WIPO (World Intellectual Property Organization), which we can see it here, the following formula is put forward:

Patent Claim- A+B+C

A B C

{put title} comprising: {state the parts one by one} {explain how they are connected with each other}

Every claims are divided into three parts-

Preamble
Linking word
Main Body

Preamble

Recognize the category where an invention falls. (composition, process, device)
Speaks about the objective of the invention.
Connect the claims with the title of the invention.

Linking Word

Open Ended Phrases – “including”, “characterized by” this helps in expanding the aimbid of the claims.
Close Ended Phrases – “comprising” “consists of” it helps in listing the items mentioned.

(e.g- A chemical compound consists of: 50% C Component, 25% D Component, 25% E Component)

Main Body

A logical or inconsistent statement which explains the content of the claim.
Not just the list of parts.

Example– An equipment, comprising of: a lot of printed pages; a binding shape to hold the printed page together and a cover joined with that binding.

In the above sentence,

Preamble: An equipment

Linking: comprising of

Main Body: a lot of printed pages; a binding shape to hold the printed page together and a cover joined with the binding.

Criterias to be followed for drafting your claims

There are three criterias, which need to be followed while drafting your claims that should be clear, complete and supported. Every claim should be in one sentence, if it’s a long or short sentence it must be completed.

Should Be Clear

Your claim should be clear so that the reader should not face any problem while reading. If you use some words like “thin” “strong” “a major part” “such as” then it is considered that you are not clear. These words make the reader give a subjective judgement, not an objective observation.

Should Be Complete

Every claim must be completed so that it can cover the inventive feature and enough elements for putting the invention in the proper context.

Should Be Supported

By giving descriptions the claims need to be supported. It means all the characteristics of your inventions that form your claim must be descriptively explained. If you use any terms in the claims then it must be either found in the description or deduct it from the description.

https://lawsikho.com/course/diploma-advanced-contract-drafting-negotiation-dispute-resolution — Click Above

How to portray patent claims in a patent draft?

Patent claims define the invention for what they are claiming for patent protection. The drafting of the patent claim decides whether your invention is a novel or is infringing upon someone’s invention.

Taking care of design of patent claim

It talks about how to represent our claims in the draft.
While at the time of patent drafting, be mindful of drafting claims of various scopes. It is a mixed fashion that includes both independent and dependent claims.
From both broad and narrow scope, patent claims should be included. It gives an advantage, the claims with broad scopes has a wider group of infringers and claims with narrow scopes makes invention more precise and definite.

Choice of words

Words should be very precise in manner while drafting the claims. While drafting for the technical feature of your invention the statement for your claim describes your invention and its variant parts.

Use of technical words in a patent claim and explain that when you are writing an invention description. Writing of claims must be in positive terms.

If you are writing “a cylinder that is not solid” instead of this write “a hollow cylinder”.

Talk about variations of your invention

Many competitors try to infringe your claim. So include all the variations of your invention in the claims as well as the description to protect the patent right. Try your best on the claims which gives an advantage to your invention.

What are the common mistakes that can be faced by you while drafting claims?

Writing claims yourself

In patent applications, patent claim is that part which is very difficult to write. If your claim is not correct, then you could get a bad patent. The language of the claim must be specific. It will be better if you hire a patent attorney for the help in the application process. If you do it, then you will endup with a good patent.

Starting with a wrong claim

You should first start with a most general claim then they must go for making more restrictive claims. Order them in most general claims to least general.

Grouping claims incorrectly

Claims for product and process are done separately. Dependent claims must be grouped together.

Using antecedents incorrectly

Use the term “said” to make it clear that you are recommending the antecedents. Terms like “a” or “the” should be used if you are referring to more general terms. You can refer to the term more than one time in your claim.

Including the wrong number of claims

If the patent examiner thinks that some claims are not useful then he might reject one or more of your claims. So, you should list as many as you can to protect your invention.

Basics of patent claim drafting

The claim must be in broad sense and there shouldn’t be anything unnecessary. While reading the claims “scope”, “characteristics” and “structure” must be clear.
The claim must have clarity and must be comprehensive.
For defining the borders of the invention with detailing and specificity there can be the addition of dependent claims.
The main focus must be on the “scope” through which someone can check whether it covers all parts of invention or not.
The claims must include “broad” claims and “specific” claims. This helps in balancing the invention in such a manner that the claims should not leave anything that invention does.
Explaining the connection between several parts of the invention is a key where effective claim drafting depends upon.

Illustrations-

Sample 1

A shovel comprising of:

a long handle and; and

a head of shovel,

Wherein the said long handle is attached to the head of shovel.

Sample 2

A building and its material comprising of;

stones and sands, and

a cement binding filled between the stones and sand to make it harder,rigid and strong for building.

This explains how the elements of the inventions are interconnected with each other.

The main objective of claim drafting shows that invention is different from knowledge, so drafting can be done in such a manner that it shows the uniqueness of the invention.
Praising language must be avoided. Most importantly praises of an invention do not matter in a Patent specification.

How to punctuate a claim

A comma (,) divides the preamble and the linking word or transition phrase into two parts. A colon (:) breaks up the transitional phrase from the main body of claim.
semicolons (;) divides the small paragraphs that describe the elements.

What does an effective claim look like?

Example: Almond Butter and Jelly Sandwich

Claim Sample

A sandwich comprising:

2 pieces of bread,

almond butter and jelly

wherein the almond butter is spread on the other piece of bread and then the both pieces of bread are put together so that the almond butter and jelly can touch.

The explanation of this claim is in general sense and it doesn’t visions like a part of a techno-legal document.

Conclusion

Patent claims are important in a patent process, so you should consult with an Intellectual Property lawyer to make sure that claims adequately protect the invention. An experienced patent attorney can have a better knowledge regarding the drafting of patent claims that will maximise the scope of the patent.

References

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This article is written by Chandan Kumar Pradhan from KIIT School of Law, Odisha. This article talks about the challenges under the arbitration process.

Introduction

The Arbitration process in India is something, which usually works as a dispute resolution forum for the termination of business disputes. The Arbitration and Conciliation Act, 1996 is the key to the law governing arbitration in India. Arbitration in India is provided by the law of arbitration in India, which is only for adopting the arbitration dispute resolution, which consists of only business purposes, any dispute between companies, or any other civil issues. This process does not entertain any kind of criminal cases. People opt for the arbitration custody because of the pendency of the cases in the Court. And in the arbitration sector, the cases mostly get solved within a year according to the Amendment of the Act in 2015. Here, the proceedings are initiated very quickly and arbitrators give their judgements speedily. The parties, those are coming to the arbitration sector, don’t disclose the issues to the public. The judgement of a case can not be used further in the next case in arbitration.

Challenges and Conflict of Interests under Arbitration

Appointment of Arbitrator

A prominent person should have the grounds of qualification by which he can be appointed as an arbitrator. And which should be checked by the Arbitral Tribunal, then only the prominent person will be capable of giving a decision in the tribunal.

Section 11 of the Arbitration and Conciliation Act, 1996 provides for the appointment of arbitrators. And the arbitrator will be appointed by two cases

Appointment by parties
Appointment by Court

Number of Arbitrators

The Arbitration and Conciliation Act, 1996 provides that the parties can elect any number of arbitrators as they wish to. But the group of arbitrators must not constitute an even numbered group, they should be an odd number of arbitrators. And if the parties are unable to do so, the arbitral tribunal will consist of a sole arbitrator.

Qualification of Arbitrator

The arbitrator who was appointed, he/she should be satisfied with some conditions of qualification. The Head person of the institution, who appointed the arbitrator, should check the qualification of that prominent person according to the agreement of the parties. The appointment of an arbitrator can be challenged within a period of 30 days. The following essential features should be satisfied to act as an arbitrator:

Confidence of parties
Impartiality
Disinterested party to litigation and no conflict of interest
Technical and legal qualification

On what grounds appointment of an arbitrator is challenged

In Section 12(1) of the Arbitration and Conciliation Act, 1996, it is given that on what grounds the appointed arbitrator can be challenged.

There are some conditions under the following, from which if the arbitrator satisfied then he can be challenged:

Arbitrator’s relationship with any of the party
Arbitrator’s relationship to the dispute
Arbitrator’s interest in the dispute
Relationship of arbitrator between each other
Any other situation can be happen

Seat and Venue of Arbitration

According to Section 20 of the Arbitration and Conciliation Act, 1996, Venue of Arbitration are selected by the parties if it had already in the agreement and no one can change the Seat because there is a difference between Seat and Venue. Seat is the business place where the dispute is going on and the Venue is the place where the arbitration will happen. But the venue also can not be changed in one situation, which is institutional arbitration. And If the case proceeds in an institutional arbitration then the parties have to present in the institution at the proceeding time.

And the other type of arbitration is Ad hoc arbitration, in this arbitration, the parties will decide the place of Venue where the arbitration will happen.

On what grounds Seat and Venue is challenged

If either of the parties are absent at the time of the proceeding.
If the arbitrator accepts the choice of place of one of the parties.

Choosing of Language

According to Section 22 of the Arbitration and Conciliation, freedom is given to the parties to choose the languages which will be used in proceedings. But in many situations like abroad, one party is from Russia and one party is from Japan and the arbitrator is from England then there will be a big problem to understand the languages. Here, a common language will be decided by the arbitrator and the parties.

On what grounds language is challenged

If anyone doesn’t obey the rules and change the language which is not understandable to the other party or the arbitrator.

Arbitrability of Dispute

Generally, all disputes can be resolved by the arbitration which is decided by a Civil Court. Like involving private rights, disputes about property or money, dispute about the amount of damages payable for breach of contract etc., under the Arbitration and Conciliation Act, 1996.

But, there are some cases, where a person can not come to arbitration for help, which are in the following:

Matrimonial problems like divorce and others
Matter which is relating to guardianship of a minor
Testamentary matters
Insolvency matters
Criminal proceedings
Dispute related to charities

These are some main matters. Basically, many other matters are also there which are not coming in the jurisdiction of the Arbitration.

On what grounds Arbitrability of the dispute is challenged

Whether the disputes are capable of resolution or not and can it be settled by the arbitration?
Whether the disputes are coming under arbitration or not?

Arbitral Award

The arbitral award means the decision given by the arbitrator in a case proceeding like judgement in a Court. Such an arbitral decision is also binding on the parties. And this term is defined under Section 34 of the Arbitration and Conciliation Act, 1966.

On what grounds Arbitral Award is challenged

If the agreement is void.
The parties are under some incapacity.
The formation of the proceeding is not in accordance with the arbitration agreement.
The decision given by the arbitrator is suspended by a competent authority of the country.
The dispute can not be solved by the arbitration law.
The application of the decision would be contrary according to the Indian public policy.
The decision was made by fraud or corruption or in violation of Section 75.
If it is in contravention with the basic notions of morality.

If the award (decision) of the arbitration was not satisfied by any parties then, what is the role of the Court?

After the award is passed by the arbitrator and if either of the party considers that the decision is not satisfied then he/she has to deliver a notice to the other party. According to Section 34 of the Arbitration and Conciliation Act, 1996, if the parties are not satisfied with the decision of the arbitration then they can file an application according to Section 48 which mentions some conditions for refusal of the decision and such conditions are mentioned in the topic of “Arbitral award” above.

According to Section 34(2A) of the Arbitration and Conciliation Act, 1996 deals with the domestic awards, which the Court can also suspend the arbitration decision if the Court finds any wrongs.

Public Policy

Public policy is defined as a set of principles, which communities need to be organized to achieve the good of the whole community of the public.

Any decision, which is made by the arbitration and which is a conflict with the public policy of India, it can also suspend but this policy is not given in the Arbitration and Conciliation Act, 1996.

Limitation period

According to Section 34(3) of the Arbitration and Conciliation Act, 1996 there is a specific time period given (3 months) and within this time period, the application for suspension of the award has to be made. Another 30 days is given to the applicant for filing the application, and if the applicant is able to show that he was restricted by many causes from making the application within 3 months then the award will be implemented.

Re-decision by the Court against the arbitral award

It is compulsory that there must be another file for a stay application, in which a conditional order may be passed by the Court.

The applicant has to prove the sufficient cause of substantial loss and explain the delay of the application.

Accordingly, the Court will decide the case and at that time Court has sufficient powers to allow only legitimate challenges against the award, which is given by the arbitration.

Recent Case laws

Centrotrade Minerals and Metal Inc. Vs. Hindustan Copper Ltd.

In this case, a three-judge bench of the Supreme Court decided that it should be arbitration of two rounds of the arbitration proceeding and it was permitted under Arbitration and Conciliation Act, 1996. The fact of the case is that an award was accomplished in an arbitration proceeding in India. The award, which was delivered, was already given in the case of London. The London arbitration award was tried to be implemented in India.

The Court held that the parties had the right to select that, will it be two-tier arbitration or not. The Court held that there is no prohibition against the arbitration and Conciliation Act, 1996 and a procedure can not violate the public policy of India. In the end, it came to know that the two-round arbitration procedure is acceptable in the laws of India.

Ms Sheetal Kurundwade Vs. M/s Metal Power Analytical(l) Pvt. Ltd and Ors.

A single judge of the Bombay High Court was called to decide the situation in which arbitrators also disqualified from the proceeding. Specifically, the Court was asked to decide whether the arbitrator should be removed from his position or disqualified from the proceeding only. If the arbitrator worked with any of the parties had any relationship with that party.

In this case, the petition was filed about the removal of the arbitrators under the amended Arbitration and Conciliation Act, 2015. Here, the petitioner alleged that the arbitrator, who was appointed by the respondent should be detached from the proceedings. Because the arbitrator already had a position of lawyer respect to the respondent.

The Court abandoned the petition, by saying that an arbitrator could be a lawyer of any parties and he couldn’t disqualify in regards to being a counsel to the parties. In the Arbitration and Conciliation Act, 1966, it was given that an arbitrator can be disqualified from the proceeding if he has a direct relationship with a party of the arbitration. An arbitrator can be disqualified on the grounds that, if he is representing a lawyer appearing for one of the parties to the arbitration in their matter.

Ssangyong Engineering & Construction Co. Ltd. v. National Highways Authority of India

In this case, the problem came out from the contract which was made between them for the construction of a four-lane bypass on a National Highway in the State of Madhya Pradesh. The plaintiff was to give the compensation under the contract for extension in prices of ingredients which to be used in the construction of the road. The agreed method of compensation for extension price was (the WPI) following 1993-1994 as the base year. Even so, NHAI thereafter issued a circular revising of the WPI that to follow 2004-2005 as the base year for calculating the extension price, which was disputed by the plaintiff.

The Court held that the analysis assumed by the majority of the tribunal in their award of using the circular in place of the contract amounted to the Tribunal rewriting the contract. The Court found that this case would be contradictory to the most basic notions of justice.

Accordingly, the Court overturned the decision. The Court noted that the matter would have to have proceeded to the fresh tribunal consideration.

Conclusion

Judicial intervention is mandatory if the arbitration is delaying in giving the decision or giving an improper decision, which is not satisfied with the applicant. Arbitration is having a great role because the judiciary has very less time and many cases are pending in the Court. In this case, if the judiciary takes the running cases which can be solved by compromise then in future the decision will be full of pendency cases and the public will only wait for the decision and can not do anything.

Therefore, arbitration is only the future of the society, where the cases can be solved within one year and the decision is also satisfied by the public.

References

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This article is written by Gauraw Kumar, from BVP-New Law College, Pune. In this article, he covers the facts, historical background, issues raised and the Judgement of an important case “M Siddiq (D) Thr Lrs v. Mahant Suresh Das & Ors.”, popularly known as “Ayodhya Dispute case”.

Introduction

India is a unique country which is adopting advancement rapidly and is also known for its diversity at the same time. In India, people have strong feelings and respect for their religion and religious ceremonies. It is good as well as bad for them also. Normally, we think that we should be loyal towards our god, respect our religion. But at the same time, politicians take advantage of these feelings. They use to connect their policy and agenda with religion and try to influence people to vote. Politicians use the concept of “Divide and rule” by influencing and manipulating people with the help of their religious feelings and emotions towards their god. We have also heard about religious violence. It is not a hidden phenomenon in a country like India. India has adopted the principle of secularism in the Constitution in order to preserve, protect and maintain the culture and traditions of all the religions. Notwithstanding, varying mindsets and different beliefs of people leads to disharmony in the society which further leads to violence and disturbance. Some disputes are very prolonged which require trial in the court of law. One such dispute arose in the case of M Siddiq (D) Thr Lrs v. Mahant Suresh Das & Ors, popularly known as Ayodhya Dispute Case. You may also hear the slogan and song “Mandir wahi banayenge” in your society. Now we will try to discuss history, background, issues raised and verdict passed in this case.

M Siddiq (D) Thr Lrs v. Mahant Suresh Das & Ors

This case is popularly known by the name of “Ayodhya Dispute Case”. This case witnessed all the Prime Minister of Independent India. This dispute is a social, religious, historical and political debate in India which centred on a plot of land in the city of Ayodhya, Uttar Pradesh. This was a very prolonged case and finally, the Supreme Court passed a verdict for case on dated 9th November 2019.

Facts of the Case

It was the story of an Ayodhya city which cohabits both, Hindu (who claim birthplace of Lord Rama) and Muslim (who see it as a city which locates Babri Mosque which was built by first Mughal emperor, Babur in 1528). First religious violence in Ayodhya occurred in the year of 1850 over a nearby mosque at Hanuman Garhi. In this process, the Babri Mosque was attacked by Hindus. Local Hindus always demand occasionally for the possession of the land where Babri mosque was established and they should be allowed to build a temple on that land. They believed that the Babri mosque was built by breaking a Hindu Temple. But, their demand was always refused by the Colonial Government. On 22nd December 1949, an offshoot of Hindu Mahasabha called Akhil Bharatiya Ramayana Mahasabha (ABRM) organised 9 days continuous recitation of Ramcharitmanas. At the end of which, Hindu activists broke into the mosque and established idols of Rama and Sita inside. Jawaharlal Nehru ordered to remove idols but the same was refused by a local official, K.K.K. Nair (known for his Hindu nationalist connections), claiming it would lead to communal riots. The Police locked the gates and entry was banned for both, Hindu as well as Muslim. Priests were allowed to enter for daily worship as idols were present inside and Mosque had been converted into a de facto temple. Both Sunni Waqf Board and AMRM filed a civil suit in local court claiming their religious rights on site.

The legal battle over Ayodhya began in 1950 when a petition was first filed by Gopal Singh Visharad, who was refused entry. He was Ayodhya secretary of the Hindu Mahasabha, an organization formed to oppose the secular principle of the Congress party. The court dragged on the issue for almost a decade and in 1959 the Nirmohi Akhara filed another complaint claiming that the area should be in their possession. In response to the above-mentioned lawsuits, the Sunni Central Waqf Council filed a counter-request in 1961. The Council was established by Indian law to protect and preserve Muslim religious and cultural sites.

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Issues raised

The issue of this case revolved around the possession of land traditionally regarded as the birthplace of Lord Rama and the history of Babri Mosque.

One of the major issues of this case was:-

Whether a previous Hindu temple was demolished or modified to construct a mosque by Babur?

Written submission of parties to the case

After the long hearing of 14 days, the Supreme Court has given 3 days to all the parties of this case to give written submission and clear what are they actually praying. Following are the summary of written statements by different parties to this case:-

Nirmohi Akhara

In the event that the verdict comes in favour of one of the Hindu parties, the Akhara should retain the right to serve the deity.
The authorization to build a Ram temple on the disputed site and Nirmohi Akhara should be authorized to manage the premises once the temple is built.
If the court decides to confirm the verdict of the High Court of Allahabad in 2010 and the Muslim parties declare that they will not do any construction on the disputed site, the court should ask the Muslim parties to give their share of the land to the Hindu parties. on a long-term lease so that a large Ram temple can be built. (The verdict of the High Court of Allahabad had divided the disputed land into three parts: the Sunni Waqf Council, the Nirmohi Akhara and Ram Lalla)
The court should order the government to provide land to the Muslim side to build a mosque outside the conflict area.

Ram Lalla Virajman

The written submission on behalf of Ram Lalla Virajman says that the court should give all of the lands in dispute to Ram Lalla.
The statement stated that no part of the disputed land should be given to the Nirmohi Akhara or the Muslim parties.

Ram Janambhoomi Punar Sudhar Samiti

Only a Ram temple should be allowed to be built on the disputed site in Ayodhya.
Once the temple is built, a trust must be formed to manage it.

Gopal Singh Visharad

Gopal Singh Visharad, whose ancestors would have performed rituals on the temple site for centuries, argued that it is his constitutional right to offer prayers to Ram Janmabhoomi.
His statement said that there should be no compromise in the Ram Janmabhoomi case.

Sunni Waqf Board

The Commission has stated that it wishes to obtain the same remedy as that invoked at the hearings. During the hearings, Commission counsel, Rajeev Dhawan, requested that the Babri Masjid regain its form before being destroyed on December 6, 1992.

Hindu Mahasabha

The Supreme Court is expected to form a trust to oversee the management of the Ram temple to be built on the disputed site in Ayodhya.
The Supreme Court should appoint an administrator to deal with this trust.

Shia Waqf Board

During their relief casting before the High Court of Allahabad, they said that the Muslim parties should give up their claim on the disputed land and hand it over to the Hindu parties to build a Ram temple.
In a written submission, the Shia Waqf board of directors said that a Ram temple should be built on the disputed site in Ayodhya.
He stated that the Waqf Shiite council is the lawful owner of the disputed land, not the Waqf Sunni council.
The land that was given to the Sunni Waqf Council in the High Court order should now be given to the Hindu parties.

Judgement

The bench of five judges of the Supreme Court heard the litigation cases on the title from August to October 2019. On 9th November 2019, the Supreme Court, led by Chief Justice Ranjan Gogoi, announced its verdict; he quashed the previous ruling and ruled that the land belonged to the government on the basis of the tax records. He further ordered that the land be turned over to a trust for the construction of the Hindu temple. He also ordered the government to donate another five-acre piece of land to the Waqf Sunni Council to build the mosque.

Following are the top ten points that were highlighted in the Judgement of this case:-

The Supreme Court granted the entire 2.77 acres of disputed land in Ayodhya to the deity Ram Lalla.
The Supreme Court ordered the government of Central and Uttar Pradesh to allocate 5-acre alternative land to Muslims in a prominent location to build a mosque.
The court asked the Center to consider giving some sort of representation to Nirmohi Akhara for setting up a trust. Nirmohi Akhara was the third party to the Ayodhya conflict.
The Supreme Court rejected the plea of Nirmohi Akhara, who sought to control all of the disputed lands, claiming that it was its custodian.
The Supreme Court ordered the Union government to create a trust in 3 months for the construction of the Ram Mandir on the disputed site where Babri Masjid was demolished in 1992.
The Supreme Court said that the structure below the disputed site in Ayodhya was not an Islamic structure, but the Assistant Sub-Inspector (ASI) did not establish whether a temple was demolished to build a mosque.
The court also declared that the Hindus regard the disputed site as the birthplace of Lord Ram while the Muslims also say the same thing about the site of Babri Masjid.
The court also declared that the Hindus’ belief that Lord Rama was born on the disputed site where Babri Masjid was once, cannot be challenged.
The Supreme Court also declared that the 1992 demolition of the 16th-century Babri Masjid mosque was a violation of the law.
While reading its judgment, the Supreme Court declared that the UP’s Waqf Central Sunni Council had not established its cause in the Ayodhya dispute and that the Hindus had established that they were in possession of the outer courtyard of the site in dispute.

A brief timeline from the occurrence of the dispute to the end of the dispute

6th December 1992:- The Babri mosque was demolished by a gathering of nearly 200,000 Karsevaks. Community riots across India followed.
16th December 1992:- Ten days after the demolition, the Congressional government at the Center, led by PV Narasimha Rao, set up a commission of inquiry under the leadership of Judge Liberhan.
6th August 2019:- The 5-judge constitutional bench, headed by Chief Justice Ranjan Gogoi, of the Supreme Court, began the final hearing on the case.
16th October 2019:- The final hearing before the Supreme Court ends. The bench reserved the final judgment. The court gave the parties to the conflict three days to file written notes on the “shaping of the remedy” or on the issues on which the court must decide.
9th November 2019:- Final judgment rendered. The Supreme Court ordered the surrender of the land to a trust for the construction of the Temple of Ram. It also ordered the government to donate 5 acres of land within the city limits of Ayodhya to the Sunni Waqf Council to build a mosque.
12th December 2019:- All petitions for review of the verdict dismissed by the Supreme Court.

Conclusion

This case is important because this is a prolonged case in the history of the Indian Judiciary and witnessed all the Prime Minister of India, from Jawaharlal Nehru to Narendra Modi. Finally, this dispute was resolved on dated 9th November 2019. In this Judgement, the Supreme Court tried to approach this case in a harmonious way and tried to establish a balance between both the religion. The Supreme Court granted the entire 2.77 acres of disputed land in Ayodhya to the deity Ram Lalla. The Supreme Court ordered the government of Central and Uttar Pradesh to allocate 5-acre alternative land to Muslims in a prominent location to build a mosque.

According to me, we should focus on the real issue which led to the development of a country like poverty, unemployment, agriculture etc. We should not come in the religious emotions trap of politicians. Politicians distract us by raising these religious issues and use the concept of “Divide and rule” in order to win elections. This case is one of the examples because this dispute was a burning agenda in previous elections of Lok sabha.

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This article has been written by Sushant Biswakarma, a student from Symbiosis Law School, Noida. This article is a research analysis of Section 167 of the Indian Evidence Act, 1872 along with different types of evidence.

Introduction

India is a democratic and free country. If someone has been accused of committing a crime, he is deemed to be innocent until proven guilty. He has the right to a fair trial, and it is on the prosecution to prove his guilt beyond reasonable doubts.

In order to prove anything before a court, one needs to adduce evidence supporting their statements. The Indian Evidence Act, 1872 prescribes a proper procedural way of producing evidence before the court. Any evidence that is to be produced must be done in compliance with this act.

Types of evidence

Evidence is a document or a statement that is presented before the court in order to support a fact of the case.

There are various kinds of evidence under the Indian Evidence Act.

Oral Evidence – Section 60

Any spoken evidence was given by a witness in court regarding the facts of the case.
It must have been personally seen or heard by the witness.
It should not be a hear-say statement.
It must be direct and it should set up the main fact in issue.

Documentary – Section 3(2)(e)(2)

These are any documents and electronic records produced for the inspection of the court.
Section 65B states that electronic records are admissible as evidence.

Primary Evidence – Section 62

The original copy of the main document itself, eg, contract, lease agreement, sale deed. Etc.
It is the best kind of evidence there is because it is the original document and the credibility of the evidence need not be proved.
One is expected to adduce primary evidence in the first place if possible.

Secondary Evidence – Section 63

It is a copy of the original document.
Admissible if primary evidence is not available.

Electronic Evidence Section 65B

It includes data and media storing data such as flash drives and data inside them.
It can be very helpful in cases of cybercrime.

Apart from the codified evidence, there exists another class of evidence that is extra-statutory. Such as:

Physical Evidence

A physical object presented as evidence.
It could be weapons used for murder or any item related to the crime.

Scientific Evidence

Any forensic findings, like blood test results, etc.
These are to be adduced after forensic experts conduct the test.
The credibility of the evidence is hard to question.

Hear-say

Evidence that has not been personally seen or heard by the witness.
Someone else has told the witness about the fact.
It is the weakest form of evidence.
Credibility is very less.

Judicial Evidence

These are evidence given in the court before the magistrate.
It could be confessions by the accused, etc.

Non-Judicial Evidence

Confession of the accused made outside the court.
It is when confessions are not made before the magistrate.
Confession made to the police during interrogation could be an example.

Direct Evidence

This type of evidence must be one that establishes a fact of the case.
It can be oral or documentary.
Statements that were given by the witness is an example.

Indirect or Circumstantial Evidence

It gives a rough idea about a fact in a case.
They are not concrete proof but could lead the case in the right direction.
Reports made after inspection of the crime scene could be one example.

When is evidence admissible?

Parties to the case may present their evidence to support their case, but not all evidence is admissible before the court.

Admissibility means whether the court entertains any evidence or not. In order for any evidence to be admissible, it must help prove a relevant fact of the case.

There can be many facts in a certain case, but only some of those facts are relevant to the court proceeding. In order to understand the admissibility of evidence, we need to first understand what facts are relevant.

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What is a fact?

Fact is something that is certainly known to be true. It can be proved and there is no doubt regarding its existence.

It can be an event or an action that has happened for certain.

Section 3(1) of the Evidence Act has divided ‘fact’ into two categories:

Physical Fact

Section 3(1) defines physical fact as “a state of things, or relation of things that are capable of being perceived by the sense.

It means that when a person sees, hears or externally feels a certain event or action, it can be construed as a fact.

For example:

Harry saw Ron and Hermoine together at the mall.
Harry heard Hermoine say something.

Non-Physical Fact

It has been defined in the Section as “any mental condition of which any person is conscious”.

These could be feelings, perceptions or opinions that cannot be perceived with our sensory organs.

For example:

Harry dislikes Tom.
Harry is a well-respected person.

What is a relevant fact?

Section 2(e) of the Act defines relevant fact as “one fact which is connected to another in any way as given in the provision of the act”. It means that any fact that is important to connect the dots with other facts in the case and helps establish the entire scenario of the case. Therefore, any fact is relevant if it can be used to prove or disprove a material issue in the case.

Even though only relevant facts are admissible in the court, there are some instances when even these facts can not be admissible. Some relevant facts can be protected and can not be admissible, such as:

Privileged conversation between advocate and their client.
Confession made by an accused to the police during interrogation.

Admissibility of a fact

Only relevant facts are admissible, but not all relevant facts are admissible.

The act prescribes that in order for a fact to be admissible, it must be legally relevant and not logically relevant.

Only such evidence that is legally admissible must be entertained by the court.

Admissibility of Electronic Evidence

Section 65B of the Indian Evidence Act talks about the admissibility of electronic records.

The Section states that:

If any electronic record is either printed on a paper, stored, recorded or copied into a storage device. Such records will be considered as a document.

The Supreme Court in the case of Shafi Mohammad v. The State of Himachal Pradesh has expanded the scope of Section 65B by including audio recordings and video recordings in the provision.

If any new device has been invented and is capable of recording any fact by any means. If there is a way to prove the credibility of that recording, such recordings can be used as evidence. The same was held in the case of Ram Singh & Ors v. Col. Ram Singh.

However, in the case of Tukaram S. Dighole v. Manikrao Shivaji Kokate, the court observed that new technologies are more prone to be tampered with and recordings of such devices would be subject to scepticism. No proper rule can be given with regard to the admissibility of such evidence. But, there must be more elaborate rules regarding the authenticity of such evidence.

In the case of Tomaso Bruno & anr v. State of U.P, it was held that computer records along with other scientific methods must be used during the investigation for more efficiency. If electronic evidence is necessary for establishing a relevant fact, it can be very useful.

Section 65B along with the aforementioned case laws has made it clear that an electronic record including photos, videos, etc when essential for establishing a relevant fact, can be treated as documentary evidence and is admissible.

Section 167

Evidence must be legally relevant in order to be admissible. The admission must be made and received in compliance with the Evidence Act.

Section 167 of the Indian Evidence Act talks about ‘no new trial for improper admission or rejection of evidence’. It says:

Improper admission or rejection of evidence is not a ground for initiating a new trial or reversal of any decision;
If there were enough evidence to justify the decision; or
If the evidence that has been rejected had been received;
The evidence rejected or improperly submitted should not be so significant that the decision could have been different if it was admitted.

Therefore, if an appeal is filed on the ground of improper exclusion of evidence or admission of evidence, the appellant must be able to prove that:

There was improper admission or exclusion of evidence, and
There has been a mockery of justice.

This section is applicable to both criminal and civil cases.

Effects of improper admission or rejection of evidence in civil cases

In civil cases, it is pretty obvious that where there is enough evidence to justify a decision it is immaterial whether the evidence has been admitted or rejected, initiating a new trial all together is not required.

Section 167 uses the phrase “reversal of judgment”, and judgments can only be reversed by an appellate court. It means that this section is applicable to appeals as well.

In the case of Abdul Rahim v. King-Emperor, it was laid down that:

Acceptance of inadmissible evidence is not an ipso facto ground for a new trial.
Acceptance of inadmissible evidence is not a ground to set aside a judgment.
Provided that there is other evidence to support the findings and reach the same decision.

The High Court of Karnataka, in the case of State of Mysore v. Sampangiramiah observed that:

Acceptance of inadmissible evidence is less injurious than the rejection of admissible evidence.
Because in the former case – while deciding the verdict, the evidence improperly admitted can be excluded from consideration.
But, in the latter case – evidence wrongly rejected can only be recorded by having recourse to further proceedings.

In case a decision is made by the trial court based on a wrongly admitted evidence. Such evidence must be set aside and see if they are relevant. If the decision is solely based on such wrongly admitted evidence, then it must be reversed.

Effects of improper admission or rejection of evidence in criminal cases

This section will be applicable to criminal cases also, as held by The High Court of Bombay in the case of Abdul Rahim v. King-Emperor.

It was laid down that if evidence has been wrongly admitted in a criminal case at the trial stage,
The High Court on appeal should try to exclude that inadmissible evidence and still keep the decision the same.
Provided that the evidence already available was enough to clearly establish the case and reach the same decision.

It means that:

In case the High Court on appeal is unsure if a fact was missing the opinion or decision of a certain authority would be the same or not.
The High Court interferes but only if it is totally certain that there would have been no other decision.
In that case, the irrelevant circumstances above would totally wreck the order, as observed in Madan Lal v. Principal, H.B.T. Institute.

The court in the case of Abdul Rahim v. King-Emperor said that it may be misdirection, and it is not sufficient ground to change the verdict.

Therefore, if the evidence is improperly admitted and there was already enough evidence to establish the case. Such improperly admitted evidence can be ignored and the decision would still remain the same. Or else there has to be a new trial.

Rejection of evidence

In the case of Narain v. State of Punjab, the prosecution had cited a certain person as a witness but, they were not very keen to examine him.

When that witness opposed giving evidence, he was dropped by the prosecution.

The court held that in such case evidence cannot be said to have been rejected within Section 167 of the Indian Evidence Act.

In such a case the prosecution does not actually tender the person as a witness.

The judge observed that the real question regarding Section 167 is not so much as to whether the rejected evidence would not have been accepted against other testimony on record as to whether the evidence – “ought not to have varied decision”.

Conclusion

Evidence is the only way to establish someone’s case in court. The Justice is blind and it seeks only evidence in order to serve justice.

The laws in India regarding the admissibility of evidence is up to par and really helpful. A wrongful submission of evidence can change the entire course of the trial and deny justice. Not just by the parties, it has happened on multiple occasions that the court has wrongly accepted some evidence that resulted in the change in entire judgment, only to be overturned by the appellate jurisdiction.

To sum it up:

Only relevant facts are admissible;
A relevant fact must be legally relevant in order to be admissible;
Admission must be made in compliance with the Indian Evidence Act, 1872.

References

Bare Acts

The Indian Evidence Act, 1872

Books

Batuk Lal, The Law of Evidence, Central Law Agency, 2018

Cases

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This article has been written by Shalu Gothi from FIMT, School of law, New Delhi. This article gives you an overview of the Essential Commodities Act which was passed by the Government in the year 1995.

Introduction

Nowadays, every person’s life depends upon some essential commodities, which are used by them every day. These commodities are the basic requirements to sustain a normal life. Thus, the availability and price of such commodities impose a major effect on the life of the general public. Therefore, to regulate the pricing, production, demand, and supply of these products, The Essential Commodities Act, 1955 plays a major role.

Historical Background of the Act

The roots of this Act can be traced back to 1939 when, the Government of India made rules regarding control, production, supply, and distribution of certain specific commodities under the Defence of India Act, 1939 during World War 2. The Act ceased to exist in 1946. However, it was felt that certain regulations are needed urgently for the protection of some essential commodities in the interest of the general public. Therefore, The Essential Supplies (Temporary Powers) Ordinance passed in 1946, which was subsequently replaced by the Essential Supplies (Temporary Powers) Act, 1946.

The provisions of this Act were further extended by two resolutions of the General Assembly in 1948 and 1949. After independence, by the 3rd Constitutional Amendment, the first Essential Commodities Ordinance was passed, which was subsequently replaced by the present Act namely, The Essential Commodities Act, 1955.

Object and Scope of the Act

This Act extends to the whole of India. The Act was enacted to ensure the availability of essential commodities to consumers and protect them from the exploitation of unscrupulous traders, therefore, the Act provides rules related to the regulation and control of production, pricing, and distribution of the essential commodities.

There are two main aims of this Act:

(1)To maintain or increase the supply of these essential commodities, and

(2)To secure equitable distribution and availability of these essential commodities.

Important Definitions

Essential Commodity

According to the Essential Commodities Act, essential commodities mean any commodity specified in the schedule. Thus, there are 7 following commodities that are specified in the schedule:

Drugs (this is used in the same sense as defined under clause b of Section 3 of the Drugs and Cosmetics Act, 1940);
Fertilizers, whether organic, inorganic or mixed;
Foodstuffs, including edible oils and its seeds;
Hank yarn, made wholly with cotton;
Petroleum and its products;
Jute, whether in the form of raw or textiles;
Seed, whether of fruits and vegetables, of cattle fodder, or of jute.

“Collector”

According to the Act, collector means an Additional Collector or such other officer, not below the rank of the sub-divisional officer who is authorized by the Collector to perform the powers and functions of the Collector.

‘’Notified order’’

This means an order which is notified in the Official Gazette.

“Sugar”

According to the Act, the word sugar includes any form of sugar which contains more than ninety percent of sucrose, including sugar candy, khandsari sugar, bura sugar, crushed sugar, crystalize or powder sugar or the sugar whether in a form of process in a factory or raw produce.

“Foodstuff”

This term “foodstuff” is not defined anywhere under the essential commodities Act. However, the scope of this term had been developed through various cases such as:

Satpal Gupta v. State of Haryana

In this case, it was established that cattle and poultry foods are included within the meaning of the ‘foodstuff. Therefore, it concludes that the foodstuff is related to both humans and animals.

State of Bombay v. Virkumar Gulab Chand Shah AIR 1952 SC335

In this case, it was established that the foodstuff includes raw material, things used in the process and things used in the preparation of food. Therefore, turmeric has been included in the scope of foodstuff.

S.Samuel, M.D., Harrisons v. Union of India 2004 SSC 256

In this case, it was decided that tea is not a foodstuff and merely a stimulant. It neither used in the preparation of food nor contains any nutritional value, however in general parlance also when a person takes tea doesn’t consider it as having food.

Laws relating to maintenance of Essential Supplies

In order to control illegal Activities and offenses under the Essential Commodities Act,1955, the government had enacted the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, in the year 1980. This Act provides powers to officers of the Central Government as well as State Government to pass the detention order against the persons who seek to control production, distribution, and supply, trade, and commerce of those essential commodities defined under Section 2 of the Essential Commodities Act,1955. The Act also contains the manner according to which these detention orders pass or execute.

Powers of Central Government Under the Essential Commodities (Section 3)

The Central Government under this Act have two important powers:

Power to Notify the essential commodity

Under this power, the Central Government from time to time adds and removes any commodity from the schedule for the interest of the general public. However, the commodities in regard to those such powers are exercise must have to be given under entry 33, list 111 of the 7th schedule of the constitution.

Power to issue a control order (Section 3)

Under this Act, the Central Government has the power to issue control orders. Such orders provide for regulation and prohibition of essential commodities scheduled in one of the following circumstances:

When the government finds that it is necessary and expedient to do in favor of the general public.
When they have to secure equitable distribution and availability of these commodities in the market.
When they have to secure any specific commodity for the Defence of India.

Purposes for passing control order

To regulate by license, permit or otherwise

The central government by issuing license and permit regulates the production, distribution, supply, storage, transport, acquisition of any essential commodity. Therefore the government issue ration/fair price shop license, importing/exporting license, etc.

To bring under cultivation of any wasteland or arable land

The Central Government by passing control order may bring any wasteland or arable land under cultivation for the purpose of growing, maintaining and increasing cultivation of any general or specific food crop.

To control the buying and selling price of any essential commodity

The Central Government may pass any control order to control the buying and selling price of any essential commodity. This type of control order can be issued:

To Improve domestic availability;
Keep the price at a reasonable level, and
Regulate the artificial inflation due to hoarding and black marketing.

Example- Drug Price Control Order(DPCO-2013), Kerosene (restriction on use and fixation of ceiling price order )1994-2015

To determine entry, search, examine, seizure of any essential commodities

The Central Government by passing control order may determine entry, search, examination, seizure of:

Any conveyance such as aircraft, vessels, vehicles used to carry essential commodity;
Any packages, covering or receptacle in which any essential commodity are found or packed;
Any book of account and documents which gave the information about any essential commodity.

To require any person to do specific works

The central government may pass the control order for required any person who is engaged in production or business of buying and selling of the essential commodity to sell whole or any specific part of a commodity held in stock or when any commodity is likely to receive in future whole or specific part of such commodity when received to the Central Government or State Government or to the corporation owned or controlled by the government or to the officer or agent of the government or to another person or class of person specified thereof.

The Central Government also requires such a person to maintain and produce for inspection such books, accounts, and records related to his business and furnish such information specified under the order.

To regulate or prohibit any class of commercial and financial transactions

The Central Government may pass the control order to regulate or prohibit any class of commercial or financial transactions relating to any foodstuff which is in the opinion of the authority unregulated and is likely to be detrimental to the public interest.

Price control under the Essential Commodities Act,1955 [Section 3(3)]

Where any person sells any essential commodity in compliance of the order made under Section 3, the price of that essential commodity shall be determined as:

Agreed price– When the parties have already agreed upon the controlled price fixed under this Section.
Controlled price– When no such agreement can be reached, the price is calculated with reference to the controlled price.
Market price– Where neither the above prices apply, then the price is calculated according to the average market rate prevailing in the locality.

Fixing the price of essential commodities during an emergency Section 3A)

The Central Government, when finds necessary to control the emergency situation, may issue a notification regarding the selling price of any foodstuff in any locality.

The price of such food-stuff would be determined according to the following rule:

If the foodstuff constantly falls under the category of controlled price and the parties have already agreed upon it then the price is calculated according to that agreement.
If there is no such agreement related to the foodstuff can be reached then the price is calculated with reference to the controlled price.
When there is a situation where condition 1 and condition 2 do not apply then the price of such foodstuff is calculated according to the average market rate prevailing in the locality.

The notification issued under this Section shall remain in force for 3 months only.

Payment of procurement price (Section 3B)

When there is no aforesaid notification issued regarding the price of any food crop, edible oilseeds or edible oils the price of such would be determined after keeping in the mind:

The controlled price, fixed under this law or any other law for the time being in force such food crop, edible oilseeds or edible oil;
The general crop prospects;
The need for such grade or variety;
Recommendation of the Agriculture Price Commission.

Fixing a price for sugar to be paid to the producer(Section 3C)

When there is no aforesaid notification issued regarding the price of sugar, then the price of sugar would be determined after considering the following:

The price of sugarcane.
The manufacturing cost
The duty and tax
The reasonable return to the business and manufActurers

However, it is provided that the government may from time to time decide different prices for different areas, factories, and varieties of sugar.

Price Monitoring Cell (PMC)

This is a body of individuals appointed by the Central Government, to monitor the price of essential commodities such as rice, wheat, dal, sugar, tea, potatoes, onions, milk, etc. Apart from monitoring the division, it is also responsible for predicting the future price, analyzing the price situation and giving advance feedback of these commodities which will help the policymakers in making future policies. In event of shortfall of any essential commodity, the price monitoring cell also implements commodity-specific market intervention schemes to give temporary relief to the consumers.

At present, the price monitoring cell is monitoring the price of 22 essential commodities. For this purpose, the cell has to calculate data of all the 114 markets situated in 4 regions such as East, West. North and South of our country.

Power to appoint Authorised Controller [Section 3(4)]

The Central Government has the power to authorize any person to undertake powers and functions for maintaining or increasing the production, supply and equal distribution of any essential commodity. The authorized controller empowered only to exercise such power and function which may be provided in the undertaking. Thus the authorized controller empowered would continue his function as long as such order remains in force.

Issuance and Service of Control Orders Under (Section 3)

The control orders which are issued by the government is notified in the following manner:

If the order is directed to the general public, it will be notified in the Official Gazette, and
If the order is directed to a specific person, it will be served to such individual:

by delivering and tendering it to that specific person, or
if it cannot be so delivered or tendered, it can be served by affixing it on the outer side or any other conspicuous part of the premises in which such person lives. A written report thereof shall also be prepared and witnessed by two persons living in the neighborhood.

The imposition of Duties on State Government (Section 4)

The Central Government or officer or authority of the Central Government or any State Government has the power to, direct any state government or officer or authority of that State Government to exercise any such power and discharge any such duties in which the direction confers.

Delegation of Powers (Section 5)

The central government by issuing notified order may delegate its power to make orders and issue notifications to

Any authority and officer of the central government or to any State Government; or
Any state government or any authority or officer of such state government.

Effect of the Order made under Section 3 (Section 6)

The order which is made under Section 3 shall have an effect on all the pre-existing laws of the country. This type of order neither repeal nor abrogate any provision of pre-existing laws but simply bypass them.

Seizure and Confiscation of Essential Commodities (Section 6A)

This Section talks about the power of the collector to confiscate or seize any essential commodity, the collector may pass orders to confiscate any package or covering or receptacle under which such commodity was packed or to confiscate any animal, vehicle, or any other conveyance of such commodity.

However, it is provided that no order of confiscation will be passed against any person if such food grains or foodstuffs are produced by himself.

It is further provided that when the order of seizing and confiscation is made for the animal, vessels, vehicle or other conveyances which are owned or hired by the owner then it is necessary to give the offender an option to pay in lieu of such seizure or confiscation, however, the fine imposed does not exceed the market price of the commodity sought to be carried by such conveyance.

Difference between Seizure and Confiscation

According to the Act, in seizure, the ownership of seized articles gets wested upon on the hands of the government however the proprietorship constant to stay with the proprietor, However, in confiscation, both ownership and proprietorship of confiscated article get vested upon the hands of the government.

Disposal of Sale Proceeds of Confiscated Goods (Section 6A)

The collector, on receiving the report of seizure or on inspecting such essential commodity finds that if it is necessary and expedient in the public interest so to do, he may:

Immediately pass the Order to sell that commodity at the controlled price. if fixed
Where no such price is fixed then pass the order to sell it on a public auction.

The sale proceeds of aforesaid confiscated good after deducting necessary expenses shall be paid to the owner or person from whom it is seized and in the following circumstances:

Where no order is ultimately passed by the collector;
Where the order passed is on appeals;
Where in the prosecution of contravention of the order, the person concerned is acquitted.

Issuance of Show Cause Notice before Confiscation of Essential Commodity (Section 6B)

There is no order for confiscation of any essential commodity is passed against any person without giving him a written notice which informs him about the grounds on which such order is proposed and to provide him an opportunity to make his presentation in writing.

An appeal against Confiscation Order (Section 6C)

Any person aggrieved by any order of confiscation is entitled to appeal to the judicial authority appointed by the government within one month from the date of the communication. And the appellate Court, after hearing the case, may confirm, modify, or annul such an order.

Offences and Penalties

Cognizance of Offences (Section 10A and Section 11)

According to these above Sections it is held that notwithstanding anything contained in the CrPc, every offence punishable under this Act, shall be cognizable, but the Court shall not take cognizance of any such offence except on the report, made by a public servant, defined under Section 21 of the Indian Penal Code.

Burden of proof in certain cases (Section 14)

Under this Act, it is said that the burden of proof shall always lie upon the person who possesses any essential commodity without having any lawful authority or permit or license.

Prosecution of action taken under the Act (Section 15)

This section provides that no prosecution or proceeding shall be instituted against the person who acted in good faith or in pursuance of the order made under Section 3.

Cognizance of offences against the public servants (Section 15A)

When any public servant alleged to have committed any offence while discharging of his duty given under Section 3 of this Act, In that case, the Court of law can take cognizance, only after taking sanction from the Central Government, or state government under whose authority such a person is employed.

Penalties (Section 7)

There are different kinds of penalties imposed upon different kinds of offences.

OFFENCES	PENALTIES
Contravene the order made under clause (h) and (i) of the SubSection(2)	Imprisonment for a term which may extend to 1 year with fine
Contravene the other orders except above two.	Imprisonment not less than 3 months which may extend up to 7 years with fine
Fails to comply with the direction given under clause (b) of Sub-Section (4)	Imprisonment not less than 3 months which may extend up to 7 years with fine
If any person convicted for offences under Section Sub-clause (ii) of clause (a) of Sub-Section (1) or under Sub-Section (2) again convicted on the same provision	Imprisonment not less than 6 months which may extend up to 7 years with fine
If the offences convicted under Sub-clause (ii) of clause (a) of Sub-Section (1) or under Sub-Section (2) does not cause any substantial harm to any individual or the general public.	Imprisonment for the term of 3 months or 6 months whichever is required as per the case.

Offences by the company (Section10)

When the above offences are committed by any company. Then every person who is in charge or responsible for the conduct and business of the company is held guilty for the offences and is liable for the punishment. For the purpose of this Section, the term ‘company’ generally includes a body corporate, a firm, or any other association of individuals.

However, it is provided that when any person liable for punishment successfully proved that the contravention has been taken place without his knowledge and he exercised due diligence at the time of contravention to prevent it then he would not become liable for any punishment for such offence.

Presumption of Culpable Mental State (Section 10C)

The culpable mental state means having a mala-fide intention under which any person commits offences. Under this Act, the Court always presumes that the culpable mental state exists at the time of commitment of every offence. However, the defense has to prove that he does not have any such intention. So we can conclude that at earlier the burden of proof is always upon the prosecution. In the Essential Commodities Act, 1955 the culpable mental state of any person shall be presumed under the following two situations.

Attempt or abetment

If any person is found guilty of attempts to contravene or abets to contravene any order made under Section 3 of the Act, then it will be presumed that such person has a ‘culpable mental state’.

False statement

If any person, when required by the law, makes any statement that is false or presumed to be false or presents any false statement in any book, account, record, declaration, etc then it shall be presumed that he has a culpable mental state.

Landmark Judgments

Nathu Lal v. State of Madhya Pradesh (AIR 1966 SC 43)

This case established the importance of the concept of mens rea under the essential commodities Act,1996

Facts

In this case, the applicant was the dealer of foodgrains at Dhar in Madhya Pradesh. He was prosecuted for having in stock 885 maunds and 21/4 seers of wheat without a license for the purpose of sale thereby committed an offence under Section 7 of essential commodities Act,1995. The appellant pleaded that he did not intentionally contravene the provision of the Act, he said that he stored the goods after applying for the license and he was fully convinced by the government authorities that it would be issued to him.

Held

In this case, it was held that the mere fact that the nature of the statute is to promote welfare Activity and eradicate the social evil itself does not exclude mens rea from its ambit. The elements of mens rea excluded from any statute only if it defeats the object to such a statute. Thus when we read the object of the Essential Commodities Act which is “to control trade in certain commodities for the interest of the general public” we can not say that this would be defeated if the mens rea is read like an ingredient of offences committed under it. Therefore in offence under Section 7 would be committed only if a person intentionally contravenes the provision of Section 3 of the Act. However, in this case, the appellant successfully proved that he had no guilty intention at the time of having stored the seized essential commodities however despite having contravening of the order issued under Section 3 he was not prosecuted for this offence.

State of Madhya Pradesh v. Narayan Singh & Ors (1989 AIR 1789)

Facts

In this case, the respondents who were lorry driver, cleaners and coolie were prosecuted for the offence committed under Section 3 and Section 7 of the essential commodities Act. They were carrying bags of fertilizers in trucks from Indore to Maharashtra. The lorry driver possessed invoice and other records but they did not include a permit issued under the Fertilizers (movement control) Order, 1973. However, the accused did not deny the fact that they transport bags of fertilizers in their respective lorries and intercepts the lorries at Sendhwa sales tax barrier but said that they had no knowledge about the contents of the document so seized.

Held

The Supreme Court, in this case, held that the main reason to amend Section 7 in 1967 was to impose strict liability on the offender in contravention of the control order through adding the crucial words like “whether knowingly, intentionally, or otherwise”. Therefore now this Section is comprehensively worded so to take within the fold of not only the offences of contraventions done knowingly or intentionally but even unintentionally. In this case, the mere fact that the respondent exports bags of fertilizers without permit itself does not consider as a valid reason for convicting them in this case, the prosecution also failed to prove that there is any culpable mental state or innocuous purpose involved in the parts of the respondents. Therefore the Supreme Court did not award any punishment to the respondent for the commitment of the aforesaid offence.

Conclusion

The Essential Commodities Act,1955 is one of the important laws of the country that applies for the protection of the interest of the general public. Under this Act, the Central Government possesses a wide range of powers to control the production and supply of essential commodities. Under this Act, the Central Government controls the price of the confiscated or seized essential commodities. All these powers are necessary to maintain the market.

References

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This article has been written by Sushant Biswakarma, a student from Symbiosis Law School, NOIDA. This article is an in-depth research analysis of the examination and cross-examination of witnesses in a criminal trial.

Introduction

The examination of witnesses is an integral part of a criminal trial. Witness testimonies are one of the most reliable evidence because the person giving the statements has personally witnessed the event happen. Section 135–165 of the Evidence Act, 1872 deals with examination and cross-examination of witnesses. This article will cover each section one by one, along with case laws.

Admissibility of evidence

Under the Evidence Act, 1872 Section 5 states that evidence is admissible only when it supports a relevant fact in issue. It is further provided in Section 136 that the judge may ask the parties if the evidence they have adduced deals with a relevant fact or not.

For evidence to be admissible in Court, the judge must be convinced that the evidence is relevant and does help establish a relevant fact in issue.

Examination Order

Witnesses are required to answer the relevant questions presented to them. A question asked to a witness must be relevant to a fact in issue, and must help establish the same. Their answers when recorded are called testimonies of witnesses. This questioning of the witness and recording their answers is called witness examination.

Examination of witness

Examination of a witness is asking the witness questions regarding relevant facts in the case and recording the statements of witnesses as evidence. There are three parts to the examination of a witness and Section 138 of the Evidence Act states that the witness must be examined in the following order:

First, the party that called the witness examines him, this process is called examination-in-chief as mentioned under Section 137 of the Indian Evidence Act.
After the completion of the examination-in-chief, if the opposite party wants to, they can take over the witness and cross-question him about his previous answers. The opposite party may ask him any question regarding all the relevant facts and not merely the facts discussed during the examination-in-chief. This process has been described in Section 137 of the act as cross-examination.
If the party that called the witness sees the need to examine the witness again after cross-examination, they may examine the witness one more time. This has been laid down as re-examination in Section 137 of the Indian Evidence Act, 1872.

Section 138 states that the re-examination must be directed by the Court for explaining matters referred to in cross-examination. The section further states that if any new fact or issue arises during re-examination, the opposite party can further cross-examine the witness on that fact or issue.

In the case of Ghulam Rasool Khan v. Wali Khan, it was held by the High Court of Jammu and Kashmir that- cross-examination might not be necessary if the witness testimony is prima facie unacceptable.

So, if no relevant facts are answered by the witness or there is no credibility to his statements, his testimony can be rejected and there is no need for cross-examination in that case.

The examination of a witness must be done specifically in the sequence mentioned under Section 138. In the case of Sharadamma v. Renchamma, it was held that examination-in-chief must be done before the cross-examination. The opposite is neither possible nor permissible.

Examination of non-witness

Section 139

Apart from witness testimonies, there are numerous other forms of evidence admissible in the Court of law.

Documentary evidence as described in Section 3(2)(e) of the act is one of them. A person might be called just in order to produce a document. Section 139 of the Act states that- such a person called in for producing documents, does not become a witness.

He can be examined in order to establish the credibility of the document. But, he cannot be cross-examined unless he has been called as a witness.

Section 140

Section 140 talks about the character of a party. “Character” of someone refers to their quality or characteristics that distinguish them. Especially mental and moral characteristics. It also includes a person’s reputation in society.

The section states that the witness to a party’s character can be cross-examined if the examination-in-chief has already been completed.

The evidence of character is helpful to assist the Court in determining the value of statements given by the witnesses.

Leading Questions

While examining, cross-examining, or re-examining a witness, the parties must refrain from asking leading questions. Leading questions have been described in Section 141 of the Act as- any question that suggests the answer which the person questioning expects to receive.

One party must object if the other party asks a leading question to the witness.

A leading question suggests the witness the answer, for example:

“You saw Harry wearing a black robe, didn’t you?”
This question by itself suggests that Harry was wearing a black robe, this question is leading the witness to reply with what the questioner wants.
“What was Harry wearing?”
The answer to this question could be the same as the previous one, however, there are no suggestions in the question. It is a simple question and not leading in any way. These types of questions are permitted.

This is because the witness must answer every question by himself as he is the one who has witnessed the fact. If there is a suggestion in the question, the questioner would be feeding responses to the witness.

Can leading questions be asked to a witness?

Even though asking leading questions is prohibited by Section 141 as it feeds the witness with responses and must be objected by the opposite party when asked to a witness. However, Section 142 says that leading questions can be asked in an examination-in-chief, or in a re-examination if the Court permits.

The section further states that leading questions can be permitted by the Court in cases where the facts are introductory or undisputed or those in the opinion of the Court have already been sufficiently proved.

The same was supported by the High Court of Kerela in the case of Varkey Joseph v. the State of Kerela.

Section 142 does not mention asking leading questions during cross-examination. But, Section 143 states that leading questions can be asked even in cross-examination.

Leading questions cannot be asked in examination-in-chief, cross-examination, or re-examination only if objected by the other party. Such questions may be asked if the other party does not object.

Even when a leading question has been objected, it is at the discretion of the Court whether to allow it or not and the discretion will not be interfered by the Court of appeal or revision except in extreme cases.

Oral evidence of written documents

Section 144 states that any witness may be asked questions regarding the contents of a document or contract that is not present in the document. If the witness gives statements regarding such documents, it must be produced before the Court.

The opposite party can object to such evidence until it has been produced in the Court.

For example:

Harry claims that overheard Hermoine telling Ron that “Tom has written a letter threatening to kill my family and I will kill him before he can do anything”.
This statement is relevant in showing Hermoine’s intention for the murder, and evidence may be given for it, though no other evidence is given about the letter.

If a witness is giving evidence regarding a contract, grant or any other disposition of property he may be asked whether there is a documentation of the same. If he answers with yes, then Section 91 of the Act becomes applicable and oral evidence of the terms of the said document will not be permitted.

In the case of Atul Bora v. Akan Bora, the Court held that Section 144 has no application when the witness is sought to be cross-examined by the election-petitioner, has not been asked any question on any contract, grant or other disposition of property.

Cross-examination on previous statements

Every statement given by a witness must be reduced to writing. He can on a later stage of cross-examination be contradicted on his prior made statements.

Section 145 of the act states that such contradictions can be made in relevant questions without showing the writings to the witness before they are proved. Once the statements have been proved to be true, there is no use of contradicting the witness then.

In the case of Purshottam Jethanand v. The State Of Kutch, the Court observed that this section does not help the accused to get the statements made during the investigation, but it does help him to use such statements in case he somehow obtained them. The statement on which the witness is being contradicted must be relevant to the matter issue.

Lawful Questions

The witness’s statements will be taken as evidence by the Court, but it must be proved that the witness is actually telling the truth. Section 146 states that during cross-examination of a witness, he may be in addition to the aforementioned questions also be asked questions that try to:

Test his accuracy or truthfulness.
Understand more about the witness and his position in life.
To shake his credit by questioning his character.

Even though the answers to these questions have the capacity to directly or indirectly criminate or expose him or directly or indirectly lead him to penalty or forfeiture, the witness is compelled to answer such questions.

However, the section does not permit to adduce any evidence or ask any questions in cross-examination that may include the victim’s moral character or previous sexual experience with any person.

Is the witness compelled to answer?

Section 147 of the Act states that if any question related to a relevant issue of the case, then Section 132 shall be applicable.

Section 132 says that the witness will not be excused from answering any question on the grounds that the answer might criminalize him or lead to a penalty or forfeiture on any question regarding a relevant issue in the case.

The proviso to the section says that no such answer shall subject him to arrest or prosecution or be proved against him in any criminal proceeding. Apart from prosecution for giving false evidence by his statements.

It is mentioned in Section 148 of the Act, that the Court must decide whether a witness should be compelled to answer or not.

This statute provides the witness with protection from aggressive cross-examination. He is not obligated to answer questions that:

Injures his character, or
Doubts his credibility.

In Bombay Cotton Manufacturing Co. v. R.B. Motilal Shivlal, it has been pointed out that such questions relate to relevant facts and are relevant only to the issue whether the witness should or should not be believed.

In cases where the decision is solely dependent on oral evidence, it is most important to answer such questions.

Therefore, the Court can decide when a witness is compelled to answer questions and if the questions tend to criminalize him in any way, he cannot be prosecuted on the basis of his statements. He has been granted protection by the statute.

Questions must be on reasonable grounds

No question must be asked to the accused without any reasonable ground as mentioned in Section 149 of the Evidence Act.

The section states that any questions referred to in Section 148 are to be asked only when there are reasonable grounds to ask such questions that might injure the witness’s character or expose him.

To understand the provision better, let’s look at illustrations of Section 149:

A barrister is informed by an advocate that the witness is a dacoit. This is a reasonable ground to ask whether the witness is a dacoit or not.
When nothing is known about a witness and he is randomly asked whether he is a dacoit. There are no reasonable grounds for this question.

It is clear upon reading the illustration that this Section also intends to protect the witness from getting his character injured.

Further, Section 150 mentions that if any barrister, pleader, vakil or attorney asks such questions as mentioned above, without any reasonable grounds, then the Court must report the matter to the High Court or other authority to which such advocate is the subject in the exercise of his profession.

Forbidden Questions

The Court has been conferred with the power under Section 151 to forbid such questions that are indecent or scandalous.

In the case of Mohammad Mian v. Emperor, it was held that these questions may only be allowed if they are related to the matter and are regarding a relevant fact in issue, or essential for finding out whether some fact in issue exists.

The Court can also forbid questions that are intended to insult or annoy as stated in Section 152 of the act. The section further states that the Court might forbid a question even if it is proper, but the Court thinks that it is needlessly offensive in form.

Questions should not attack the witness’s character

A question asked during an examination of a witness must establish a fact in the case, it should not be asked merely to shake his credit or injure his character. It is stated in Section 153 of the Act.

It says that if any question has been asked and the witness has answered it and it only causes injury to the witness’s character, no evidence shall be given to contradict him. Unless he answers falsely, in which case he will be charged for giving false statements.

There are two exceptions to this section, which are:

If a witness has been asked whether or not he was previously convicted. On denial of the witness, the evidence regarding the proof of his previous conviction can be given.
If a witness has been asked a question that impeaches is impartiality, on denial of witness, he may be contradicted.
It means that if a party has sufficient grounds to believe that the witness is not impartial, they may contradict him and try to furnish proof.

In the case of State of Karnataka v. Yarappa Reddy, the Supreme Court added that the basic requirement for adducing such contradictory evidence is that the witness, whose impartiality is in question, must be presented with evidence and asked about it and he should have denied it.

Without adopting such preliminary measures, it would be meaningless and unfair to bring a new witness to speak something fresh about a witness already examined.

To understand this better, here’s a hypothetical situation:

A claims to have seen B at Delhi on a certain date,
A is asked whether he himself was at Calcutta that very day or not,
A denies it,
Evidence is adduced to show A was actually in Calcutta.

The evidence is admissible, not as contradicting A on the fact which affects his credit but as contradicting the alleged fact that he saw B in Delhi on that same date. The same was held in the case of Reg. v. Sakharam Mukundjee.

Questions by a party to his own witness

Section 154 of the Evidence Act allows a party who calls a witness to ask any question to their own witness like they are cross-examining him.

Sometimes a witness can turn hostile and it is necessary for the party that called a witness to cross-examine him if such a situation occurs.

In the case of Sat Paul v. Delhi Administration, the Supreme Court has interpreted this section and defined a hostile witness as one who is not willing, to tell the truth when a party calls him.

For the purpose of cross-examination under this section, there must be enough evidence to show that the witness is not telling the truth and he has turned hostile as held in Atul Bora v. Akan Bora.

In the State of Rajasthan v. Bhera, the Court observed that a previous testimony of a hostile witness can be used as evidence as they are still on record. If the party does not resist the hostility of the witness, then it is upon the Court to find out the truth.

The Section clearly states that it is the discretion of the Court to allow such cross-examination or not. In Mattam Ravi v. Mattam Raja Yellaiah, the Court held that:

The Courts have a legal obligation to exercise their discretionary powers in a judicious manner by proper application of mind and keeping in view the attending circumstances.
Permission for cross-examination with regard to Section 154 cannot and should not be granted on mere asking.

Impeaching credit of witnesses

If the witness has turned hostile, his credit can be impeached by the opposite party, or by the party that calls him (subject to permission from the Court). Section 155 provides three ways of doing so:

By calling such a person who can from their personal experience and knowledge testify against the witness and establish that the witness in question is unworthy of credit.
By furnishing proof that the witness has taken a bribe, or has accepted to take a bribe, or any other incentive to turn hostile.
By showing inconsistency in his former statements and contradicting him to the extent permitted by Section 153 as held in Zahira Habibullah Sheikh v. Sate of Gujarat.

Corroboration of evidence

Sometimes merely asking the most relevant fact may not be enough to obtain all the necessary facts from a witness. Some questions that do not seem very much connected to the relevant fact can be asked if they help corroborate such fact.

Section 156 allows parties with the permission of the Court to beat around the bush a little with the intention of connecting the dots and establishing the relevant fact in issue.

Previous statements given by the witness can also be used to corroborate the later testimony regarding the same fact as prescribed under Section 157 of the Act.

The prior statements do not need to be given to the Court, it can be any conversation regarding the facts of the case.

In the case of Rameshwar v. State of Rajasthan, a young girl had been raped and she had told her mother about it. Later that statement of the girl given to her mother was corroborated with her other statements in order to establish the case.

It is stated in Section 158 of the act that any statement which is relevant under Section 32 or 33 and has been proved, all matters have to be proved in order to confirm or negate it, or for impeaching or crediting the person that made such statement, to the extent as if that person had been called as a witness.

Refreshing Memory

We humans, sometimes tend to forget things and it is extremely important to keep remembering the entirety of the facts if we have been called as a witness. Someone’s life could be at the line and our statements may help the Court serve justice to someone. A witness may be under a lot of pressure and due to all the stress he might need to refresh his memory.

Section 159

That is why Section 159 of the Evidence Act says that a witness can refresh his memory while under examination.

He may do so by referring to any writing made by himself at the time of the event taking place regarding which he has been questioned, or a while later as long as the Court considers it to be fresh in his memory.

The witness can also refer to someone else’s notes prepared within the aforementioned time frame, and decide whether it is correct or not.

The section further says that the witness may use a copy or photocopy of a document with the permission of the Court in order to refresh his memory.

The word ‘writing’ for the sake of this section includes printed matter. A witness who heard a speech may refer to his memory by referring to a newspaper account of it if he read it soon afterwards, and if, at the time he read it, he knew it to be correct.

Section 160

This section states that a witness must testify to the facts that were mentioned in any such document as mentioned in Section 159. It is irrelevant whether he remembers all the facts that were recorded with every little detail as long as he is certain that the facts have been recorded correctly by him.

To better understand this section, we need to look into the illustration provided in the section, which says:

A book-keeper will need to testify the facts he has recorded in the books regularly kept during the course of his business.
He might not be able to remember every detail about his entry, but as long as he knows that the facts entered were correct and the book was kept correctly, he is good to go.

The fundamental difference between Section 159 and Section 160 is that:

The former talks about the recollection of memory of the witness and not the document.
Whereas, in the latter, the document itself becomes evidence of the facts mentioned therein.

Section 161

This section states that any writing or document mentioned in the last two sections above must be produced and provided to the opposite party if they require it.

The opposite party may cross-examine the witness over the document if the need be.

When a document is produced under Section 161, it becomes subject to a general inspection and cross-examination by the opposite party.

But the cross-examination on the portion referred to by the witness does not make the document evidence against the cross-examiner.

It has been made clear in the case of Pran Dutt v. State of Uttar Pradesh that a statement of record by the investigating officer such as police reports, under Section 161 is not usable for contradicting a witness.

Production of documents

Section 162

This section says that a witness when summoned to produce a document must produce it if he has it in his possession.

If there are any objections with regard to its production or admissibility, the Court will deal with it. The Court may also inspect the document unless it refers to matters of the state.

In case the documents need to be translated, it can be done so by a translator who must keep the contents confidential. If the translator leaks the content of the said document, he shall be charged under Section 166, IPC for disobeying the law.

Section 163

This section mentions that when a party asks another party for a document to be produced, and it has been produced and inspected by the party that asked for it, he must give it as evidence if the party producing thinks fit.

To understand this better, let us say:

Harry and Ron are parties to a case.
Harry wants a document that is in possession of Ron.
Harry must give Ron notice to produce the document.
After receiving the notice, Ron has given the document to Harry.
Harry has inspected the document given by Ron.
Now, Harry must give that document as evidence to the Court if Ron says so.

Section 164

This Section talks about the consequences when a party upon receiving the notice to produce a document, does not do so.

If under the aforementioned situation:

Ron does not give the document to Harry.
If sometime later, Ron wants to use that document as evidence, he will not be able to do so without Harry’s consent.

Power of the judge

Section 165 of the Evidence Act talks about the power of the judge to pose questions and order the production of evidence.

In order to procure proof of relevant facts, the judge may ask any question that suits him. It does not matter whether the question posed by him is relevant or irrelevant. The question may be asked at any time during the trial, it may take any form and he could ask anyone, be it the witness or the parties.

However, the judge cannot compel the witness to answer his questions and his decisions should not be solely based on his questions. The decisions must be based on relevant facts and evidence produced.

Conclusion

The Indian Evidence Act, 1872 is very necessary for protecting the witnesses, letting him speak freely without the fear of prosecution.

Judicial interpretations have brought significant positive changes in this act to meet the needs of the time and have made some provisions more practical.

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Kabir Jaiswal is a student of National University of Study and Research in Law, Ranchi (NUSRL) who writes about crossing cheque under the Negotiable Instrument Act.

Introduction

There are serious risks associated with payments to the wrong person. These risks can be avoided by giving the paying banker a clear direction about the person to whom the cheque is to be paid by specifying certain words on the cheque itself. This is crossing of a cheque. “Crossing is an instruction given to the paying banker to pay the amount of the cheque through a banker only and not directly to the person presenting it at the counter.” The Negotiable Instruments Act, 1881, sets out in Section 123 – 131 the provisions concerning the crossing of cheques.

Section 6 of the Negotiable Instruments Act, 1881

The term cheque is defined as “A bill of exchange drawn on a banker specified and not expressed to be payable other than on request.” To understand this definition clearly, however, it is important that we also consider how an exchange bill was defined in accordance with the Act.

Section 5 of the Negotiable Instruments Act, 1881

“Bill of exchange is a written instrument containing an unconditional order signed by the manufacturer that directs a certain person to pay a certain amount of money only to, or to, a certain person or to the instrument holder.”

What is Crossing of Cheques?

Cheque crossing is recognized in the Negotiable Instruments Act of 1881.
Crossing a cheque means drawing two parallel transverse lines between the lines on the cheque with or without additional words such as “& CO.” or “Account Payee” or “Not Negotiable.”

Why Cross a Cheque?

Minimizing the risk: The crossing of the cheque gives the paying banker instructions to pay the amount only through the banker and not directly to the payee or holder presenting the amount at the counter. It is an effective way to minimize the risk of loss or falsification.
Paying instructions: Crossing is a way for the paying banker to generally pay the money to a bank or to a particular bank, as applicable.
Payment through the bank: Only a banker can secure the payment of a crossed cheque, which makes it easy for the holder to present it with a quarter of the respectability and credit that is known. By using a crossed cheque, you can ensure that the specified amount cannot be cashed but can only be credited to the bank account of the payee.
The receiver of the amount: As only a banker secures the payment of a crossed cheque, the money received can easily be traced for whose use.
Negotiability: Merely a cheque crossing does not affect its negotiability.

Click Here

Who is authorized to Cross a Cheque?

In accordance with the Sec. 125 of the Negotiable Instruments Act, the following persons are authorized to cross the cheque, apart from the drawer:

The Holder

The holder of a cheque is authorized to cross a cheque, either in general or in particular if the cheque is not crossed.
He is also entitled to cross a cheque, especially if the same is generally crossed.
He can also add the words “non- negotiable” to crossed cheques in general and in particular.

The Banker

The banker in whose favour a cheque is crossed in particular can also cross it in favour of another banker or his agent for collection purposes. Such a crossing is called Special Double-crossing.

Different Types Of Crossing of Cheque

A crossing of cheques is basically of 2 types:

General Crossing
Special Crossing of cheques.

General Crossing

Section 123 of the Negotiable Instruments Act deals with the general crossing of cheque, In the following cases, a cheque is generally considered to be crossed:

If two parallel transverse lines are marked across the cheque face.
If the cheque has an abbreviation “& C” between the two parallel transverse lines.
If the cheque is written between the two parallel lines, the words “Not Negotiable”
When the cheque comes with the words “A / C. Payee” between the two parallel transverse lines.

Implications of General Crossing

The effect of the general crossing is that any other banker must submit such a cheque to the paying banker.
Payment can only be made by bank account and should not be made at the bank’s payment counter.
The banker then credits the cheque amount to either the owner of the cheque or the payee ‘s account.

Special Crossing

According to section 124of the Negotiable instruments Act,

For a cheque to be deemed to have been crossed, the banker’s name had to be added across the face of the cheque.
In case of a special crossing, a cheque must not be crossed by drawing two parallel lines.

Section 124 of The Negotiable Instruments Act, 1881 defines Special Crossing as: “Where a cheque bears across its face an addition of the name of a banker, either with or without the words “not negotiable”, that in addition shall be deemed a crossing, and the cheque shall be deemed to be crossed specially and to be crossed to that banker.”

Also known as Restricted Crossing
Two transverse lines must not necessarily be drawn.
The banker’s name is added across the face of the cheque.
The banker’s name may or may not carry the abbreviated word’ & Co.’
Payment can only be made through the bank of the crossing. The banker mentioned at the crossing can appoint another banker to collect such cheques as his agent. Therefore, it is safer than ‘generally’ crossed cheques.
Specially Crossed Cheques are not convertible into General Crossing.

Implications of Special Crossing – The bank pays the banker with his name between the crossing lines.

General Crossing v. Special Crossing

There are also substantial differences between the special and general crossing of cheques. Whereas the inclusion of the banker’s name is a must in the case of a special crossing, the need for a general crossing is to draw two parallel lines. The special crossing of a cheque indicates that the paying banker must only honour the cheque if it is presented to him by the bank mentioned at the crossing. No other person can receive the cheque.

Double Crossing

Section 127 of The Negotiable Instruments Act, 1881

“Where a cheque is crossed specially to more than one banker except when crossed to an agent for the purpose of collection, the banker on whom it is drawn shall refuse payment thereof.”

A double-crossed cheque shall be paid by the banker if the second banker acts only as of the agent of the first collecting banker and this is clearly stated on the cheque. i.e., Crossing must specify that the banker to whom it was particularly crossed again acts as the first banker’s agent for the purpose of collecting the cheque.

Why Double Crossing a Cheque?

In the case that the banker to whom a cheque is crossed, has no branch at the place of the paying banker,
Or if he feels the need otherwise, he can cross the cheque to another banker( specifying clearly).

Non-Negotiable Crossing

Although the non- negotiable crossing does not result in the cheque becoming non- transferable, it still loses much of the negotiability of the cheques.
This prevents anyone other than the cheque transferor from holding a better title than the one he has.
However, if such a cheque is transferred for consideration and if such a transfer does not lead to a defect in the transferor ‘s title, the validity of such a non- negotiable crossing is still not removed from the cheque.

Section 130 of the Negotiable Instrument Act which deals with Non-Negotiable crossing states that “a person taking a cheque crossed generally or especially, bearing in either case the words ‘not negotiable’ shall not have and shall not be capable of giving a better title to the cheque than that which person from whom he took it had.”

A/C Payee Crossing

In order to ensure that a cheque will not be able to be encashed by anyone but the rightful owner of the cheque, the words “account payee” are often added to the crossing ensuring that the bank receiving such a cheque is to collect the amount only for the purposes of the payee’s account.

The Advantages of A/C Payee Crossing

The same does not lead to a reduction in the cheque ‘s negotiability or transferability. The Court held that this was also the case in various matters like National Bank v. Lilke and also in the case of A.Z. Underwood Ltd. v. Bank of Liverpool & Martins Ltd.
Checking with an account payee crossing does not affect the paying banker in any way since it only has to ensure that even if the cheque cannot be collected by the payee himself, the proceeds of the payee are credited to the account of the payee.

Usage of A/C Payee: A Custom

Although the words ‘ account payee’ is not mentioned in the Negotiable Instrument Act, they are still considered to be part of the law because of their widespread practice and use.

Non-Negotiable A/C Payee Crossing

It has often been observed that both non- negotiable crossing and crossing of accounts payee help to ensure that cheques are extremely secure. Sometimes, a type of crossing is referred to as a’ non- negotiable account payee crossing.’

Advantages of Non-Negotiable Account Payee Crossing for the Payee:

The non- negotiable element of the crossing makes the cheque non- negotiable and therefore removes the more insecure element of the cheque’s negotiability;
The crossing of the’ account payee’ element serves as a direction for the payee banker to collect the cheque from the payee only, serving as a warning of the banker’s responsibility if he does not do the same.

The Implication of Non-Negotiable Account Payee Crossing– Payment will be credited to the payee account named in the cheque.

Paying Banker Accountability

Paying banker is also accountable to:

The true owner of the cheque;
The drawer of such a cheque.

Reasons for such Accountability

If the paying banker pays for a cross-cheque that does not comply with the wishes of the drawer that is transmitted through the cheque, Then the banker in question shall be held liable for any loss suffered by him as a result of such payment to the true owner of the crossed cheque.

Similarly, if the paying banker fails to make the payment in accordance with the provisions of Sec. 126 of the Negotiable Instrument Act, the law considers it to be a payment not made in accordance with the instructions of the drawer. This law prevents such a banker from debiting the check amount on his customer’s account, as such payment is considered to have been made to the wrong person.

Duties of a paying banker as to crossed cheques

For general Crossing- Sec. 126 of the Negotiable Instruments Act states that crossed cheques are usually only paid to a banker.
For Special Crossing- A cheque crossed in particular should only be paid to the banker to whom it is crossed or who is a collection agent.
For Second Special Crossing- Sec. 127 of the Negotiable Instruments Act, 1881, allows the banker who would act as the agent of the first banker to collect a second special crossing. In the second special crossing, it is, therefore, necessary to specify that the banker in whose favour he is made is the collection agent on behalf of the first banker.
Care and Attention- A banker must not pay a cheque by ignoring the crossing since it is not legally justified to pay the payee in cash over the counter.

Duties of a Collecting Banker

Drafts Collection: The collecting banker’s duty is to collect and place the proceeds of both cheques and drafts for his customer’s account, since 85-A of the Negotiable Instruments Act, 1881, defined drafts as “an order to pay money, drawn from one bank office to another bank office”.
Checking Account Holder bona-fides: Establish the Bona- fides of the Account Holder: the banker must ask to determine the Bona- fides of the person who wishes to become a customer. If the banker fails to do so or fails to make a proper introduction or a reliable reference from the proposed customer, he will commit a breach of duty in accordance with section 131 of the Negotiable Instruments Act, 1881.
Crossings Examination: The collecting banker must carefully examine all the crossings and cheques he receives for collection. If the customer gives him a cheque crossed to any banker, in particular, he should not accept it for collection. Likewise, a cheque crossed “Account Payee Only” should only be collected for the payee named in the cheque and nobody else.
Indorsements Examination: While paying, the paying banker usually relies on the discharge of the collecting banker. It is, therefore, a very important duty of the collecting banker to examine all approvals and other material parts of all cheques and drafts before submitting them for collection and discharge on the instruments.
Dishonour Notice: If a cheque is dishonoured upon presentation, the collecting banker is responsible for informing his client accordingly. In addition, the banker has the right to debit a dishonoured cheque to the account of his customer if he has already credited the cheque.

In accordance with Sec. 126 of the Negotiable Instrument Act, the paying banker is obliged to make the payment in accordance with the terms of the crossing on a crossed cheque. This was also laid down in Sec. 126 of the Negotiable Instrument Act, according to which:

“Where a cheque is crossed generally, the banker on whom it is drawn shall not pay it otherwise than to a banker and where a cheque is crossed specially, the banker on whom it is drawn shall not pay it otherwise than to the banker to whom it is crossed or his agent for collection.”

Therefore, only a banker is allowed to receive a crossed cheque.
The paying banker is not authorized to send the proceeds of a crossed cheque to the payer or the cheque holder.
Any failure by the paying banker to pay a crossed cheque shall be punishable by liability as defined in Sec. 129 of the Negotiable Instrument Act.

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This article has been written by Diksha Bali, studying in Amity Law School, Haryana. This article gives brief information about confession under Indian Evidence Act, 1872 and when it is relevant in criminal proceedings.

Meaning of confession under the Indian Evidence Act

The term “Confession” means – to admit, own up or accept blame. In other words, we can say that confession means to acknowledge some personal fact that an individual would ostensibly prefer to keep secret. The word was defined under section 78 of the old English Act- Police and Criminal Evidence Act,1984 as the evidence made by the suspect on the admission of the offence or the guilt.

Under the Indian Evidence Act 1872, the term has not been defined but has been mentioned under the heading of “Admission”, which implies that confessions are a subset of admissions. Section 17 of the Indian Evidence Act, defines admission as any statement made in either form such as oral, documentary or in electronic form which has enough probative value to suggest or conclude a relevant fact.

A confession is the suspect’s admission of guilt. Evidence collected from an accused also fails to be credible, since no proof can supersede an accused’s overt confession. The principle habemus optimum-testim, confidante reum means that the best evidence against him used in such cases was a confession against an accused.

In Pakala Narayan Swami v. Emperor, it was observed that a confession must be accepted either in relation to the offence or all the facts constituting the crime are relevant at any point.

In Plavinder Kaur v. State of Punjab, SC supports the decision of the Privy Council in Pakala Narayan Swami case over the explanation that, confession must either confess the guilt or that it fully acknowledges all the evidence. Secondly, a mixed statement, that will result in acquittal, including any confessional arguments, is no confession. The Court cannot remove the exculpatory portion of an argument and will issue the judgement on the basis of the statement’s inculpatory component.

Forms of Confession

Confession may be of different types according to the matter of cases. It is differentiated into two forms: Judicial confession and extra-judicial confession.

Judicial Confession- Judicial confession is also known as formal confession. Sec 80 of the Indian Evidence Act gives evidentiary value to the judicial confession and expresses that a confession made before a Magistrate or the Court of law shall be presumed to be true and the accused can be tried with the offence.

It is also a plea of guilt as per the provision of Indian Constitution explained under Article 20(3), otherwise, any confession made by an accused will have no evidentiary value and hence he will not be held guilty of committing an offence.

Extra-Judicial Confession- Extra-judicial confession is also known as Informal confession. Any statement made outside the court by the suspect or defendant tends to show that he is guilty of the offence for which he is charged or suspected (Sec- 24, 25 and 26, Indian Evidence Act). These confessions can be oral or written.

In the case of Heramba Brahma v. State of Assam, AIR 1982 SC 1592, it was held that all the confessional statements made to the police or any other law enforcement officers qualify as an extra-judicial confession.

In C.K. Ravendram v. State of Kerala, AIR 2000 SC 369, it was held that if a person confesses to the commission of an offense, the same can be used in the Court against him or her for the crime for which he made the confession, but it must have been willingly done.

In the case of Sahadevan v. State of Tamil Nadu, SC while deciding the case has made some principles where the court has to check such principles before admitting the confession of the accused. Those principles are-

Extrajudicial confessions are by itself a poor kind of evidence and such claims must be tested successfully by the court.
Extrajudicial confession should be made by the will of the individual and that argument should be valid.
The evidentiary significance of extrajudicial confession immediately rises when other facts of this kind confirm it.
The confessor’s argument must prove his guilt as is proved in the judicial proceedings by any other evidence at issue.

Retracted Confession- The term retraction means the act of drawing back something. This type of confession is made voluntarily by the confessor earlier and after that, it is revoked or retracted by the same person. Retracted confession can be used against the person who is confessing any retracted statements if it is substantiated by any other independent and corroborative evidence. In Pyare Lal v. State of Rajasthan, SC lifted that a retracted confession can form any other legal grounds to establish any conviction only if the court satisfies that it was true and made by his or her own will. But the court confirms that the conviction cannot be solely made on such confession until and unless they are corroborated.
Confession by co-accused – According to the SC, the confessions made by the co-accused do not have much evidentiary value and they cannot be considered as a substantive piece of evidence (Pancho v. State of Haryana). Hence, the confession made by the co-accused can only be used to corroborate the conclusion drawn out by other probative evidence.

Section 24 of the Indian Evidence Act, 1872

This section says that in criminal proceedings, confession made by an accused person is meaningless if confession appears to have been induced by any incitement, threat or pledge, relating to the accused person, coming from an authorized person and, in the opinion of the court, sufficient to give the accused person reasons, which would seem fair to him for believing that he would gain any advantage or escape some temporary poor in relation to the proceedings against him by making it.

A statement made by a suspect is meaningless in criminal proceedings if the court finds that the confession is caused by any incitement, threat or pledge to the accused, proceeding from a person in authority and sufficient, in the court’s opinion, to give fair grounds to the accused person for believing that, if he received any advantage or prevented some evil of a temporary nature in connection with the proceedings against him, it would do so.

Ingredients of section 24

According to this section, the suspect’s conviction on the following grounds is meaningless if:

The confession came into effect due to inducement, threat or promise: Confessions made by force or violence are not free and voluntary, and such confessions are not admissible. The court has the responsibility to determine whether or not it is voluntary to make a confession. Interference with non-voluntary existence may be suggested by religion itself or by evidence of the prosecution or by evidence provided by the accused individual or by circumstances concerning them, which the court shall also take into account. If the court determines that the confession has been improperly obtained, it should be rejected.
The inducement, threat or promise relates to the charge in question: The fee in question must include rewards, warning or commitments etc. The defendant must have been coerced by the person in charge to make a confessional statement. If an accused person is accused of any crime and is told that if he acknowledges the truth in the present case the commitment is not linked to the present case, so that the confession is true.
The inducement, threat or promise has to be served by an authority: A person with special legal rights has the power to control the proceedings against the accused. In the matter of Pyare Lal v. State of Rajasthan, it was stated that the person giving a different promise, threatening the accused or inducing him to make confession must be a person in authority. The term ‘person in authority’ in this section was held to be one who has an authority or power to charge the accused. The person in authority would only mean the police who are in charge of the investigation and the magistrate who will handle the case.
The inducement, threat or promise holds out some worldly benefit or advantage: The inducement, threat or promise should be enough to convince the mind of the accused so he would get some advantage or avoid evil of temporal nature. But mere inducement, threat or promise is enough to cause reasonable belief in the mind of the suspect and that by confession he would get benefit of a temporal nature in reference to the proceeding against him.

Scope Of Section 24

Section 24 of the Evidence Act prohibits all faiths. This notes that if a confession seems to have come about as a result of the threat by any person in authority, promise or incitement this is meaningless and cannot be proven against an accused. Although in sections 24 to 30 the substantive law of the faith has been created. The basic rule of law is that the confession is admissible only if it is voluntary. The circumstances were defined in Section 24, 25 and 26. These will not be admissible if they are not deemed voluntary. A confession is not voluntary if either a threat, promise, admission or consent has been made by a defendant.

Confession when relevant?

In section 3 of the act, the term “relevant” is specified as “one fact is considered related to the other, where the other is connected in one way or another in the provisions of the act concerning the relevancy of the facts.” All the facts are not valid either scientifically or legally.

Confessions, as a form of admission, are relevant under section 21 of the act against the suspect, unless hit by rules of irrelevance or Exclusionary Rules of section 24, 25 and 26 of the act or section 162 of Cr.P.C, 1973. Section 21 states that admissions are relevant and may be proved as against the person who makes them. An oral confession by an accused person not being hit by any of the exclusionary rules is an admission which is relevant under section 21 of the act. In Faddi v. State of Madhya Pradesh 1964 AIR 1850 SCR (6) 312, it was held that an admission in F.I.R will be admissible under section 21.

Section 25

This section says that the confession given to a police officer is not admissible. It can also be not proved because the object of this section is to prevent the practices of torture made by police officers to an accused so they cannot force him or her to give an false confession. If the confession is made in front of any other person it will be relevant only if the police officer is present at that moment. The particular section applies to confessional statements only if they are made orally or in the form of F.I.R presented by an accused.

Section 26

This section states that no confession of a person, in police custody, is provable. It applies in the context that a false confession could be extracted in through fear or torture. It not only applies to confessions to a policeman but to any other person. The only exception to this rule is that if the confession is made by an accused in front of a magistrate, it will be admissible.

Section 27

In Mohan lal v. Ajit Singh ( AIR 1978 SC 1183), the accused was held liable for murder and robbery. He stole goods that he kept with himself which were found within six days. A judgement made in Satish Chandra Seal v. Emperor (AIR 1943 Cal 137) held that a statement made by the accused cannot be used against other co- accused because the nature of offence committed by them can be different.

Section 28

A confession is important when the terms of the incentive, threat or commitment stated in section 24 are removed. The confession here is safe and free.

Admission and Confession

Section 17 of the Indian Evidence Act,1872 describes the admission as a statement made by any person and in the circumstances stated in the act is either oral, photographic or electronic, suggesting some interference as to the truth of any matter of issue or as to the relevant fact. Admissions are considered to be substantial evidence and do not represent conclusive evidence in accepted events. Admission used in civil matters consists of all declarations which amount to admission pursuant to section 17 of the act.

Confession on the other hand, has no statutory definition but is mentioned under the admission itself. In the case of Pakala Narayan Swami v. Emperor, the court stated that either the crime or substantially all of the facts constituting the offence should be accepted by a confession. Only a voluntary confession and overt acknowledgement of guilt is called confession. It is seen as conclusive evidence and is a clear acknowledgement of guilt.

Case laws

K.I. Pavunny vs Assistant Collector on 3 February 1997

In this case, while deciding the criminal appeal some remarks came to be made against his competence as counsel. The application was given by him that those remarks may be deleted as he was not given an opportunity to explain his conduct before those remarks were made. So the court held that such application should be allowed and remarks made against the applicant personally shall be treated to have been deleted.

E.D. Smith vs Emperor on 8 November 1917

An appeal was filed by Mr. Smith, against a conviction by the Chief Presidency Magistrate for dishonest possession of stolen property under section 411 of IPC. The property consists of various material objects alleged by the prosecution to have been stolen from the Army Clothing factory situated close to accused’s premises. It was observed by the court that the statements given by the accused were not within the meaning of section 24 and hence cannot be called confession. By framing this the appeal was dismissed.

Conclusion

Confession is admission but admission cannot always be called confession. Sometimes they overlap but they are distinct. The aim of confession is admissibility of evidence which is used against the suspect in the court of law. Where a confession is made under threat, promise, duress, etc, it may lack or fail in the admissibility test. Therefore, a confession must be made freely or voluntarily by the suspect.

Hence, it’s been observed that admission has a wider scope than confession, as the latter comes under the ambit of the former.

References

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This article is written by Vishwas Chitwar currently pursuing B.COM LLB (HONS) from Institute of Law Nirma University. This is an article which deals with various legal principles regarding the Right To Information (Amendment) Bill 2019.

Introduction

Right to information act is one of those acts passed by the Indian Parliament which has come out to be extremely successful as well as empowering for the citizens of India. Since 2005 this act is the most powerful act. The Right to Information Act, 2005 came into existence because of the UPA government, however, the Act itself became the reason for the government’s fall. The Right to Information Act 2005 was the reason why RS. 70,000 cr CWG Scam, 2G Scam came in front of the people. It had major involvement determining the financial conditions of the banking system in India post demonetisation.

It has given ordinary citizens of the country the confidence and the right to ask questions to the government authorities. According to estimates, approximately 1.75 crore applications have been filed since 2005. Its role in the life of ordinary citizens as well as in the working of media can never be overlooked. The RTI Act 2005 is considered as a hindrance for government servants against taking arbitrary judgement.

Today the Right to Information Act is under attack. Secretly and without any public consultation, the Government introduced a bill in Parliament which aims to cripple the independence of information commissions.

What does the RTI Act do?

RTI Act, 2005 puts a compulsion on the “Public Authorities” to disclose the information relating to structure and functioning of the organisation, including:

Disclosure on their organizations functions, and structure,
Powers and duties of officers and employees,
Financial information.

The intent of such disclosures is because the public should need a minimum recourse through the Act to obtain information that they wish to seek. If such information is not made available to the citizens, then they have a recourse available to appeal before the Authorities. This information that the public seeks may include information in the form of documents, files, or electronic records which is presently under the control of Public Authority. The rationale behind the enactment of this Act is to promote transparency and accountability in the working of Public Authorities.

Who is a ‘Public Authority’?

The definition of the term “Public authority” can be referred from the text of Section 2(h) of RTI Act 2005, which states that “public authority” is any authority, body or an institution of self government which is established by the Constitution or either made by the parliament or by state legislature, which is inclusive of any:

body whether owned, controlled or financed; by the appropriate Government,
non-Government organization which is financed, directly or indirectly; by the appropriate Government.

How does the RTI system work?

RTI Act 2005 creates a post for information commission, of which one is situated at the state level and another is situated at the central level. Furthermore, under this information commission, Information commissioners (IC) are appointed who are responsible in taking care of the administration. Furthermore, these information commissioners are collectively responsible to the Chief Information Commissioner (CIC).

It is quite obvious to state that the one who holds crucial information regarding a department or a ministry which if passed on, will tend to disclose the ill acts of the department or ministry etc. However the legislation has made a provision for this too. Whenever a concerned authority is not giving a reply to the RTI application then the RTI applicant has the right to approach an Information commissioner (CIC or IC) and they will be duty bound to ask the concerned department for the reply of the application.

The central information commission/state information commission receive complaints from any person:

Who has not been able to submit an information request because of the non-appointment of the concerned officer;
Who has been refused information that he wanted to seek;
Who has not received a response to his information request within the specified time frame;
Who, for whom the fees charged for the application is unreasonable;
Who thinks information provided by the department is incomplete, false or misleading; and;
Any other matter which involves obtaining information under this Act.

In order to make these information commissioners independent, 2005 Act has fixed the tenure of CIC and ICs for a period of 5 years, and salary as well as allowances as that of an chief election commissioner. The independence of these officers are of extreme importance, as if there is any interested officer who intends to please the executive then, he will not pass on the information which will harm the reputation of those in which his interest lies.

Why is it being opposed?

The terms of appointment, salaries and tenures of the Chief Information Commissioners and Information Commissioners will be decided on a case-to-case basis by the government.
By bringing this amendment the competency of CIC and IC to issue directives to the senior government employees will be hampered as their status will be reduced from that of a Supreme Court Judge.
This amendment will fundamentally weaken the position of the CIC and IC, as it will adversely impact the ability of commissioners to function in an independent manner.
The government has brought the amendment Bill in absolute secrecy. No consultation was made with the public on the amendment, which furthermore infringes the fundamental right to information of the citizens.

What does the Right to Information (Amendment) Bill, 2019 propose?

The Bill seeks to change the terms and conditions regarding the service of Chief Information Commissioner and Information Commissioners at the centre and in states respectively. As per the new 2019 amendment, the government has proposed to bring alteration in Section 13 and Section 16 of the RTI Act.

As per the 2005 Act: at the time of appointment, if CIC and ICs receive pension or any other retirement benefits for his or her previous government service, then their salaries will be reduced by an amount which is equal to that of his pension. Previous government services include service under:

Central government,
State government
Company owned or controlled by the central or state government.

Provision	RTI Act, 2005	RTI (Amendment) Bill, 2019
Term for the Chief Information Commissioners and Information Commissioner.	A 5 year term is fixed.	The term of office would be notified by the Central Government through a Notification.
Quantum of Salary of the CIC and ICs (at the central level)	equal to the salary of Chief Election Commissioner and Election Commissioners.	The central government will determine the salaries, allowances, and other T&C of service of the central CIC and ICs.
Quantum of Salary of the CIC and ICs (at the state level)	equal to the salary of the Election Commissioners and the Chief Secretary to the state government, respectively.	The central government will determine the salaries, allowances, and other T&C of service of the state CIC and ICs.
Deductions in Salary of CIC and ICSs	The salaries of the CIC and ICs will be reduced by an amount equal to the pension if, at the time of appointment of the CIC and ICs, if they are receiving pension or any other retirement benefits for previous government service. The central government, state government, corporation established under a central or state law, and company owned or controlled by the central or state government fall within the ambit of previous government service.	The provisions have been removed.

Amendments include

The Centre will have the ability to decide the salaries and terms of service of CIC and IC at both central as well as state levels.
The term of the Chief Information Commissioner and Information Commissioners will now be “as may be prescribed by the Central Government”.
As per the 2005 Act, salaries, allowances and other TOS of the Chief Information Commissioner was to be same as that of an Election Commissioner, and the salaries and other TOS of the Information Commissioners was to be same as that of the Chief Secretary to the State Government”. As per the amendment, these will be notified by the Central Government”.

Reasons given by the government for bringing the amendment

The government allege that the correlation drawn between the Election Commission of India and Information Commission is erroneous, and through these amendments, it will streamline as well as strengthen the Act, along with this it will aim to bring greater transparency.

The difference between the ECI and the CIC: “The Election Commission is a constitutional body established by Article 324(1) of the Constitution and is responsible for the superintendence, direction and control regarding the preparation of the electoral rolls in order to conduct every elections to the Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President under the Constitution.

On the other hand, the Information Commission is a statutory body established as per the provisions of the Right to Information Act, 2005. Therefore, the responsibilities as well as duties of Election Commission of India and Central and State Information Commissions are entirely distinct. On the above mentioned line of argument, their status and service conditions need to be rationalised accordingly.

Relationship between Information commissioners and Law enforcement department after the amendment

It has been observed that Police in general are considered to be void of a backbone of its own. Along with this void they are not provided with a fixed tenure, which makes them under a constant threat of being transferred to a remote place by the hands of politicians, as if the policemen does something against a politician, the chance of him getting transferred to some other place becomes very probable. The reason associated with this infirmity is because the tenure is not fixed.

The condition of RTI officers is going to be the same as that of the police if the tenure remains to be unfixed. The atrocities that the police personnel had experienced over the years will be faced by the information commissioners also.

Not an ‘anomaly’

In an attempt to rectify an anomaly, the government seeks to amend the RTI law. The intended amendment aims to treat information commissioners at par with functionaries of the election commission. The intended amendment is resisted on grounds that while Information Commissioner is a statutory body while Election Commission is a constitutional body. The resistance is unwarranted as there is no provision in the Constitution or any law that bars such practice. Per contra, to ensure independent functioning of statutory oversight institutions like the Central Vigilance Commission and the Lokpal, the principle of statutorily securing tenure, and protecting the terms of service by equating it to functionaries of constitutional bodies is often resorted to.

What about the salary

Another aspect that the amendments look to address is the salaries of information commissioners. The pay rates of IC are equivalent to that of the Supreme Court Judges, despite the fact that the orders of commissioners can be challenged before high Courts.

As per Section 23 of the RTI Act, orders of the commissioners can be challenged only under the writ jurisdiction of the Courts. In the last 15 years, since the inception of the law, many decisions of information commissions have been challenged in the High Courts. However, there is no evidence which suggests that the status of information commissioners being at par with that of Judges of the Supreme Court has hindered the ability of high Courts to examine the decisions taken by the Public Authorities.

In any case, decisions of the President, Governors and the Prime Minister can also be challenged under writ jurisdiction in the Courts. Surely, it is not the contention of the status of these functionaries cannot be at par with that of the Judges of the Supreme Court and, therefore, it must be downgraded.

Conclusion

The RTI Act 2005 has been one of the most empowering pieces of legislation for millions of people in the country, who have used it to hold governments accountable and show truth to power. The proposed amendments will have an extremely debilitating impact on peoples’ fundamental right to knowledge. It is imperative that the RTI Amendment Bill be referred to a Committee by Rajya Sabha to enable detailed deliberations and public consultations on its various Provisions.

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This article is written by Vishwas Chitwar pursuing B.COM LLB (HONS) from Institute of Law Nirma University. This is an exhaustive article which deals with the relation between International law and Municipal law.

Introduction

Nothing is more essential in International law than having a comprehensive understanding of its relationship with the Municipal law of a State.

This article will be talking only about the theoretical aspect of International law on Municipal law however, there are two governing principles of International law relating to the Municipal application of treaties, and they are:

Article 27 of the Vienna Convention on the Law of Treaties:

Prohibits the states from invoking its Municipal law as its justification for non obligation towards the performance of treaty.

Article 8 of the Universal Declaration of Human Rights and Fundamental Freedoms:

Every individual is vested with the right to an effective remedy by the tribunal which is competent to hear, for violations of fundamental rights granted by the constitution or by any other law.

The significance of the theoretical aspect of this topic can never be overrated as the question regarding the consideration of limits between International law and a state’s Municipal law is usually argued among those who practice International law. Apart from the theoretical aspect of the relation between International law and Municipal law there exist a practical problem in a State’s Municipal courts that, as to what extent the Municipal courts of a country give effect within its jurisdiction to the rules and principles of International law, both where the rules and principles are in conflict with Municipal law and not in conflict with Municipal law.

Theories on the relationship between International law and Municipal law

The two principal theories of the relationship between International law and Municipal law are known as Monism and dualism. As per the beliefs of Monism, International law and state’s Municipal law are two components but complementary aspects of one single system. According to dualism, they are entirely distinct and different legal systems on their own. International law has an intrinsically different character from that of the state law, because in International law a large number of the State’s legal system are involved, the dualist theory is sometimes known as the pluralistic theory.

To know the relationship between International law and Municipal law, it is crucial to understand what these two laws actually are. The rules and regulations which deals with the conduct of states is known as International law. In order to simplify we can say, set of principles which the states can invoke or apply while dealing with other states or international organizations. On similar grounds, it is also called as “the law of the nations”. On the other hand, The Municipal law is known as the internal law of the land.

Monistic theory

International law operates only at the International level and the Municipal law operates only on its local jurisdictional limits. However, the advocates of natural law believe that Municipal and International law form a single legal system, this approach is commonly known as Monism.

To have a better understanding of this topic it is crucial to understand what natural law is; natural law is something that exists in isolation with the positive law. As the name suggests, it is determined by nature, the law of nature is objective and universal in nature. From the time of inception, natural law is referred to analyze human nature to deduce moral behaviour from nature.

The argument from the side of a Monist is pretty simple, they believe Municipal law and International law if looked together is nothing but a single system. Modern writers who favor the monistic approach endeavors that a major portion of their views are based on a strictly scientific analysis of the Municipal structure of legal systems.

In a true monist country, there is no need for the translation of International law into Municipal law. Once the state gives assent to the treaty, it automatically gets incorporated in its municipal law. This act of giving assent to an International treaty or obligation will immediately incorporate international principles into states’s Municipal law, (this is inclusive of customary International law).

International law can be applied by a Municipal Court, and can be invoked by citizens, contingent on the fact that the international law is translated into the state’s Municipal law. A municipal court can declare a law as unconstitutional if it contradicts International principles.

In a true monist state, if a national law contradicts International law then it becomes null and void, no matter whether it is of constitutional nature or not. For example, a state gives assent to the Convention on the Rights of Persons with Disabilities, however, a few of its national laws are in contradiction with the conventions rights of the individuals who suffer from a disability. Then, a citizen of that country, who is not getting deprived of the rights conferred by the treaty, can ask the national courts to apply the treaty.

In a Monist State, the International law gets automatically accepted and the contradicting part automatically gets translated away the moment the State ratifies the treaty.

Kelsen: Grundnorm theory

For Kelsen, International and Municipal law is nothing but “manifestations of a single unit of law”. Kelsen’s belief in the supremacy of International law is the result of his “basic norm”, which states that: ‘states should behave as they customarily have behaved’.

International law is supreme in nature as it represents a legal order which is higher than Municipal laws, it is because the International law is derived from the state’s practice on the other hand the Municipal law gains its power from the state’s internal affairs.

Once it is accepted that International law is a system of rules of a legal character, it becomes impossible according to kelson to deny that the two systems constitute as a single system.

The theory of International law and Monism doesn’t have any halfway house. Kelson observed natural law and International law as a single and coherent system. According to him, International law is placed at the top of the pyramid (as per his grundnorm hypothesis).

Dualist theory

Unlike Monists, dualists have stressed on the difference between International law and Municipal law and have argued for the adoption of International treaties in the Municipal law of the State. According to dualists, in absence of this adoption by the State the International law will not exist as a law.

The reason why dualists have this view is because they believe International law and Municipal law are two different aspects of law and it would be unreasonable to take the two as a unity. As per their belief, International law and Municipal law are two distinct and independent systems in itself.

In a dualist State, it is of utmost importance that International law has to be drafted in its Municipal law in order to give it an effect. Apart from drafting it is the duty of the state to omit those laws which contradicts the newly adopted International law.

If a dualist State ratifies a treaty or a convention, but does not create a law explicitly incorporating the treaty, then their act of non incorporation violates the International law. If the State has not incorporated the principles of a treaty as per its local laws which it has ratified earlier in the International sphere then, neither the citizens of that country can invoke the International laws nor the courts can give its decisions based on the principles of that treaty.

The United Kingdom is a country in which a dualist approach is dominant. International law becomes the national law in the UK only if it is translated.

Hersch Lauterpacht on Dualism

Judge Lauterpatch was an advocate of natural law, he accepted that International law observes the precepts of natural law.

For Lauterpacht, International law is more superior than municipal law, the rationale behind this view is because it offers the guarantee rights for the individuals notwithstanding anything from which state he belongs to. As per Lauterpacht the hierarchy of legal orders was:

Natural law
International law
Municipal law

For him whether it is International law or Municipal law, it is the individual who is the definitive unit of all law. He answered a few fundamental questions of international law philosophy regarding the concept and origin of international law.

He Criticized the doctrine of Heinrich Triepel’s doctrine of international legal obligation, meanwhile agreeing with Kelsen that the binding force of law cannot be derived from the individual or common will of the states.

For Lauterpacht, the international law is for the states and not for governments. For him, the international community was a community of individuals, whose will is expressed by the states.

Triepel on dualism

Triepel treated the two systems of State law and International law as entirely distinct in nature. For him the International and Municipal law exist as two separated, distinct sets.

Triepel made following contentions on the relationship between International law and state law:

Firstly he contended that, International law and Municipal law differ in the particular social relations that they govern; State law deals with the individuals and International law regulates the relations between States.
Secondly, he argues that their juridical origins are different; the source of Municipal law is the will of the State itself, the source of International law is the common will of States.
There exist differences in: subjects, sources and content, also, it requires ‘transformation’ of International law into Municipal law to make International law binding on Municipal authorities.

Triepel accepted that the basic will of the States was the premise of the legitimacy of International law; he also pointed out that it is heavily relied upon the agreements between States, which not only includes treaties but custom too and the common will was the most important and inventive source of International law.

The problem of “lex posterior”

In a dualist country, International law must be translated into Municipal law, and the existing Municipal law which contradicts International law must be “translated away”. The international law must be translated into municipal law in order to conform to International law. However, the need for translation causes a problem with regard to Municipal laws which are developed after translation.

In a monist country, a law emerges after the International law has been accepted and if it contradicts the International law, it automatically becomes null and void. The International rule will continue to prevail.

In a dualist system, when the international law which is translated into a national law can be overridden by another national law on the principle of “lex posterior derogat legi priori“, which means: the later law replaces the earlier one.

This means that a dualist state willingly or unwillingly can violate international law. A dualist system requires continuous screening of all subsequent national law for possible incompatibility with earlier international law.

Difference Monism theory and Dualist theory

Monism

As per the advocates of natural law, Municipal law and International Law forms a single legal system.
Monism is supported by the advocates of natural law.
In Monism there exists no need for translation of International into Municipal law in order to give it an effect.
In a true monisitc country if a national law contradicts International Law then it becomes null and void.
If a monist state ratifies a treaty or a convention, and does not create a law explicitly incorporating the treaty then their act of non incorporation will not violate the International Law.
In a monistic State International Law automatically gets embedded in the Municipal law and the contradicting part gets automatically translated away.
Supporters of Monism: kelson.
State which follows Monistic approach: germany.

Dualism

Municipal law and International Law are two different and distinct legal systems.
It is supported by the advocates of positive law.
In a dualist country there exists a need for translation of International into Municipal law in order to give it an effect.
In a true dualistic country, if a national law contradicts International law then it becomes doesn’t becomes null and void, unless it is already translated in its municipal law
If a dualist State ratifies a treaty or a convention, but does not create a law explicitly incorporating the treaty, then their act of non incorporation violates the International law.
International law does not get automatically embedded in the Municipal law.
Contradicting parts of the Municipal law has to be amended by the state, as it does not get automatically translated away in a dualist country.
In the absence of translation of International law into Municipal law the International law will not exist as a law.
Supporter: hersch lauterpatch, triepel.
Country which follows: United kingdom.

Methods of Implementing Treaties

There are a few principle methods by which states implement treaties and some of them are; Adoption, Incorporation and Transformation.

Adoption

As per the monist theory, if International law is adopted as Municipal law, then the treaty is automatically enforceable in Municipal law. However, some states need “translation” from the legislature for treaties to be enforceable and they are; France, Spain, Belgium Netherlands, USA. Other countries like Germany and Italy require an order of execution prior to the ratification (pre legislative consent). It is usually called quasi-automatic incorporation, which authorizes the government to be committed towards the obligations of treaty and incorporating the treaty into the Municipal legal sphere.

Incorporation and Transformation

This theory is usually practiced by the dualist states. The theory of Incorporation involves enacting and implementing the legislation. International treaties have a higher status than that of the Municipal law (however not more than the Constitution).

The key difference between an incorporated treaty and an adopted treaty, is the form it takes in Municipal law. Thus adoption is heavily reliant on the attitude of municipal courts. On the same line of argument, incorporation and transformation which leads to enactment of legislation, is not necessarily without any barriers, as it is on the discretion of the court whether to apply the principles of treaty or not.

Judicial Discourse on Relationship Between International Law and Municipal Law

State of West Bengal v Kesoram Industries Ltd. & others

In this case, the Constitutional Bench of Supreme Court held that the Doctrine of Dualism is applicable in India and not the doctrine of Monism however if the municipal law isn’t limiting the extent of the statute, then, even if India is not a signatory to the treaty, the Supreme Court can Interpreted the Statute.

Civil Rights Vigilance Committee S.L.R.C. College of Law Bangalore v. Union of India and others

The High Court of Karnataka while deciding this case, defined the relationship between International Law and the Municipal Law held that, as the increasing relevance of International law on the global and municipal scenario, several unique and novel queries are starting to be raised regarding the relationship between the two. However the Hon’ble High Court held that Municipal Law & International Law are established on different sources can make different systems go simply incompatible.

Conclusion

Monism and dualism are usually conceived as two opposing theories of the International law and Municipal law relationship. Monism and dualism are regarded by many modern scholars as having limited explanatory power as theories as they fail to capture how International law works within States.

Notwithstanding anything, Monism and dualism hold power as analytical tools. They go about as predictable beginning stages for examinations of the connection among International and Municipal law. Various late choices in Municipal courts have seen a few researchers find Monism and dualism as potential approaches to comprehend Municipal legal thinking on International law.

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This article is written by Shalu Gothi, B.A.LLB(Hons.) from FIMT, School of Law, New Delhi. This article talks about cruelty as a ground of divorce in the Hindu Marriage Act,1955.

Introduction

Cruelty is a ground of matrimonial relief under all the personal laws prevailing at this time. However, the situation was not always like this, cruelty has been prevailing since ancient times all around the world in a very brutal form; even many renowned jurists justified and supported it. For example- under the old English Law, Blackstone declares that “the husband could correct his wife even by beating her”.

In Hindu ancient history, there is a similar situation too. According to Manu “if required, the husband has all the right to beat his wife but only from robe or splitting bamboo so that no bones were broken in the process”. Considering the statements of these people we can suppose that the status of women in earlier society was miserable, and there was no such law that governed the matter of cruelty in matrimonial life and after considering various stigmas in the personal life of a Hindu, the parliament decided to enact the law related to the hindu marriage and cruelty called The Hindu Marriage Act, 1955 came into existence.

Meaning of Cruelty

Cruelty generally means the matrimonial act which causes pain and distress of any kind such as physical, mental, economical to others. The concept of cruelty is subjective which always depends on time, place or person, facts and circumstances of the case. So what we consider cruelty today was not so considered cruelty a few years back or what we do not consider today might become cruelty after some time. So, for this reason, under The Hindu Marriage Act, 1955, the legislature deliberately didn’t give any definition to the word ‘cruelty’ and it has been left to the Court to decide it.

Evolution of cruelty

Before The Marriage Laws (Amendment) Act 1976, cruelty was the only ground of judicial separation. Under this provision, the word ‘cruelty’ is used in a very restricted sense that ‘if any party treats the other with such cruelty which causes reasonable apprehension in the mind of the other that it is injurious and harmful for him/her to live with the other, then it becomes the valid ground for judicial separation’. But after the amendment in 1976, the wordings of this section “as to cause a reasonable apprehension in the mind of others that it is harmful and injurious for him to live with another party” was changed. By adding subclause (i-a) in section 13(1)(i) cruelty became the ground of divorce too.

These changes were upheld after the landmark judgment of Narayan Ganesh Dastane v. Sucheta Dastane.

Distinction between cruelty as a ground of judicial separation and cruelty as a ground of divorce

Cruelty as a ground of judicial separation {Section 10(1)(b)}	Cruelty as a ground of divorce {Section13(1)(i)(i-a)}
According to this section, the petitioner can file a petition of judicial separation at any time before or after the solemnization of the marriage.	Under this ground, the petitioner can file a petition of divorce only after the solemnization of marriage.
Apart from cruelty, the wife can also make an application of judicial separation on the other grounds mentioned under Section 13(2).	The husband and wife can make an application of divorce only on the grounds of cruelty.
Under this ground, the marriage between the parties is not going to end completely but will only be suspended temporarily.	Under this ground, the marriage between the parties is ended totally.
After the passing of the decree under this ground, there is a possibility for reconciliation by the Court, if the Court finds out that it is just and reasonable to do so.	After passing the decree under this ground there is no possibility for reconciliation by the Court.

Kinds of cruelty

Cruelty is generally considered as two types:-

Physical cruelty

When one spouse does an act of violence of such kind which causes injuries to the body, limbs, health of the other spouse, then it is considered as an act of physical cruelty. This type of cruelty is very easy to carry out. In the case of Swati v. Arvind Mudgal, 2015 the Court held that “In order to constitute physical cruelty one or two acts are more than sufficient even if the single act may be so grave and weighty that it could be satisfied the test of cruelty amounts to physical cruelty”.

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Mental cruelty

This type of cruelty is not mentioned anywhere. It is always left at the discretion of the Courts which depend on the facts and circumstances of every case. But at the time of judgment, the Court has to consider various factors: social values, community, culture, status, thinking process, and surroundings of the party to the case.

Cruelty in the eyes of the Court

The concept of legal cruelty changes according to the changing modes of society, with the advancement of social concepts and standard of living. Nowadays physical cruelty is not only necessary ground to establish legal cruelty, but there are also some other grounds like continuous ill-treatment, cessation of marital intercourse, indifference on the part of the husband and the assertion on the part of the husband that the wife is unchaste, are all factors which lead to mental or legal cruelty.

What amounts to cruelty?

There are no definite parameters available according to which we can determine cruelty. It always depends on the facts and circumstances of each case. There is certain conduct that is generally seen as cruelty.

Unsoundness of mind

If any party to the marriage is suffering from an incurable mental disease and if this fact gives rise to a reasonable apprehension in the mind of the other party that it will be injurious and harmful to live with that party, then it is generally considered as a sufficient ground of cruelty. In the case of Smt. Uma Wanti v Arjan Dev AIR 1995 P&H 312, it has been held that “although the wife is not an unsound person but her peculiar way of behavior towards him is sufficient to constitute legal cruelty”.

Attempt to commit suicide

It has been considered that several attempts to commit suicide or even threat of it is sufficient to cause considerable mental pressure on the other party. In the case of Harbhajan Singh Monga v. Amarjeet Kaur, the Madhya Pradesh High Court held that “threats of committing suicide by one spouse constitutes cruelty to others thus it is valid legal ground to seek divorce”.

Making false allegation

Making false allegations about the character of the other party proves to be personal grounds for seeking a divorce. In the case of Jay Dayal v. Shakuntala Devi, the Court has said that “making a false allegation of physical and mental torture against husband amounts to mental cruelty”.

Refusal to have sexual intercourse

Sexual intercourse plays a very important role in a happy and harmonious marital relationship. In the case of Anil Bharadwaj v. Nirmlesh Bharadwaj AIR 1987, the Court decided that if any party to the marriage having a healthy physical condition refuses to have sexual intercourse without any reason and especially when the parties are young and newly married, it would amount to cruelty and would entitle the other party to a decree of divorce.

Defamation

Regularly disrupting and insulting the spouse in front of society which causes pain and mental agony to the other would amount to mental cruelty. In the case of Vishwanath S/o Sitaram Agrawal v. Sau. Sarla Vishwanath Agrawal, 2012, the Court held that “the motive was to demonise the reputation of the husband in the society by naming him as a drunk womaniser and man of bad habit. This constitutes mental cruelty and this conduct of the wife has frozen the emotion and snuffed out the bright candle of feeling of the husband thus it is clear that with this mental agony, pain, and suffering the husband would not be able to live with the wife, therefore entitled to decree of divorce”.

Exceptions to Cruelty

Section 23 (1) Condonation by the victim party

According to this Section, if any party after filing the petition of divorce, does any act which amounts to condonation of cruelty, then this may become sufficient ground for any Court to cancel his petition for divorce.

For example, Mr. A is a victim of cruelty by his wife and files a petition of divorce in the Court. But after hearing the news of the accident, he goes to her and helps her to recover. This act of the husband would be considered as condoning cruelty towards the respondent therefore the Court will cancel his petition of divorce.

Section 23 (1)(b) Effect of Condonation of Cruelty

In any proceeding whether defended or not, if any party to the case has condemned the cruelty then the Court would cancel his/her petition of the divorce.

Section 23(2) The fountain of love and affection

This Section simply casts a duty on the Court to check or test whether the fountain of love and affection between the parties is totally dried up or not before granting any decree of divorce. If it is not, then the Court makes every effort to bring the parties to reconciliation. However, it is difficult to know the same.

Landmark cases

Dr. Narayan Ganesh Dastane v. Sucheta Narayan Dastane(AIR 1975 SC 1534)

Facts

In this case, the appellant Mr. Narayan Ganesh Dastane was a well educated and qualified man who got married to Mrs. Sucheta, the respondent. Their families arranged their marriage in April 1956. But soon after the marriage through the various incidents, the husband found that his wife was not mentally stable and then, he filed an application of divorce.

Allegations of husband

The father of the respondent did not give any information about the psychological condition of the respondent initially.
On various occasions, she lost her temper, insulted him and his family which caused inconvenience to him at his workplace and home.
He found various letters of the respondent which were sent to her family and friends which indicated her problematic viewpoint related to him and his family.

Allegations of wife

The letters mentioned by the appellant were created by her only, but under the pressure of the appellant.
The appellant was abusing his own wrong and did not have the courage to accept it.
The appellant was continuing sexual relations with the respondent after knowing the mental condition of her which caused 3-month pregnancy at the time of leaving the wrecked marital home.

In this case, Justice Chandrachud Y.V. laid down following the 5 tests to determine whether the respondent conduct would amount to cruelty or not:

The alleged act constituting cruelty should be proven according to the law of evidence;
There should be apprehension in the petitioner’s mind of real injury or harm from such conduct;
The apprehension should be reasonable having regard to the conditions of the parties;
The petitioner should not have taken advantage of his position;
The petitioner should not have condoned the acts of cruelty.

After considering facts and circumstances of this case on these aforesaid grounds the Court gave the following judgement:

Held

In the present case, the Court found that the appellant contention regarding his wife being unsound mind was fabricated by him. The contention regarding the respondent inflicting cruelty has been proven to exist, but the appellant act of engaging sexual intercourse with respondent would condone the cruelty inflicted by the respondent. The appellant condoned the respondent after which she did not act in the manner she did before the condonation thus the respondent will not be held liable for cruelty.

Smt. Maya Devi v. Jagdish Prasad (AIR 2007 SC 1426)

In this case, the husband alleged that his wife, Mrs. Maya, does not provide food to him, used to threaten him to implicate false charges of dowry against him or his family and often said that she will kill his whole family.

After considering all the facts and circumstances of the case, the Supreme Court held that “although the expression of cruelty has not been defined in the Act, it may be physical or mental, direct or indirect. And in this case, the acts of the respondent were sufficient to cause apprehension in the mind of the appellant that it is not safe to stay with her. Thus it is mental cruelty against the husband. In this case, the Court also suggests that the question of mental cruelty has to be considered in light of particular norms of a marital tie in every society which depends on societal values, status, culture, and surroundings of the parties to the particular case.

Shobha Rani v/s Madhukar Reddi (1998 AIR SC 121)

In this case, the appellant, Shobha Rani, accused her husband and his family of demand for dowry. The High Court justified their demand as she is an upcoming doctor, there is nothing strange to ask her for some money. However, the Supreme Court treated that act as mental cruelty and held that the word cruelty has not been defined anywhere, it is a question of fact and degree, and it may only be inferred by its impact on the mind of the person who bears it, and in this case, the conduct of respondent caused very bad impact on appellant’s personal and professional life, thus it was decided that mental cruelty was inflicted on her.

Conclusion

The cruelty of any kind whether physical or mental, either by husband or wife should not be accepted in any condition because it violates the basic right of dignity or liberty given under the Constitution of India. So, at last, we can conclude that anybody can reach the Court on the grounds of cruelty but each case is decided upon its facts, so the relief granted is not always the same in every case; the Court decides it according to its own interpretation within the boundary of the law.

References

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This article is written by Shalu Gothi, B.A.LLB (Hons.) from FIMT, School of Law, New Delhi. This article talks about the powers and functions of an arbitrator given under The Arbitration and Conciliation Act, 1996.

Introduction

The UNCITRAL Model Law which was passed in the year of 1985, by the United Nations Commission on International Trade Law (UNCITRAL), made a significant contribution in passing The Arbitration and Conciliation Act, 1996 in India. While adopting the Model Law, United Nations General Assembly had recommended that all countries had to give due consideration to the said Model Law for the purpose of uniformity of the law related to international commercial arbitration and conciliation. In this regard, India has passed The Arbitration and Conciliation Act, 1996.

The Arbitration and Conciliation Act, 1996

This Act consolidates all the laws relating to domestic arbitration, international arbitration, enforcement of foreign awards in India. The Act also defines the law related to conciliation and other matters related therewith. This Act has become very beneficial for both consumers and businesses to ensure cost-effective solutions to their dispute without any undue delay and unreasonable harassment. The main reason for the passing of this Act is so that the parties become capable to solve their dispute outside the court in the presence of an arbitrator appointed by themself.

Matters coming under the purview of the Arbitration and Conciliation Act, 1996

Generally, it is considered that the matters which can be decided by the civil court all come under the purview of this Act, but this is not true. The matters which are related to morality, status, and public policies are not generally referred to as arbitration. However, the following matters can be referred to arbitration:

Cases related to the specific question of law,
Cases related to actual possession of the land,
Cases related to damages under any contract,
Cases related to disputes arising in any contract,
Cases under which pure question of law is arising out of contract,
Disputes of law and facts,
Cases related to winding up of a company.

Who is an arbitrator?

The arbitrator is a professional who helps the parties in the dispute to arrive at the final harmonious agreement or settlement. The arbitrator is also referred to as an ‘Umpire’ or ‘referee’.

Appointment of the arbitrator (Section 10 and Section 11)

Section 10 of this Act provides that parties have the power to decide the number of arbitrators but such numbers shall not be an even number. However according to Section 11, the parties are free to decide the procedure of appointment of arbitrator or arbitrators in the arbitration agreement but when no such procedure is determined, then each party is required to appoint one arbitrator and the two arbitrators so appointed must have to appoint the third one. If the parties fail to appoint the arbitrator according to the above procedure within 30 days from the date of request made or the arbitrators appointed fail to agree on one person, any party may request the Chief Justice to nominate an arbitrator to them. However, if the parties have not agreed on the procedure of appointing one arbitrator or fails to agree on one person within 30 days from the receipt of a request made by another party, the nomination shall be made by the Chief Justice on the request of one of the parties. However, where an appointment procedure has been agreed upon by the parties, but the parties fail to act as required, a party may request the Chief Justice to nominate an arbitrator and then the decision of Chief Justice is final.

Powers of the arbitrator in an arbitration proceeding

The arbitrator is the one who will give the arbitral award, therefore, The Arbitration and Conciliation Act, 1996 provides several powers to him in order to decide the award.

Power to administer an oath to the parties and witnesses

The arbitrator has the power to administer the oath to the parties and witnesses. He also could issue interrogatories to the parties if he thought it necessary to do so. There is no express provision relating to that power being given under The Arbitration and Conciliation Act, 1966. However, it is implicitly applied to the fact that he acts like a quasi-judicial authority in arbitration.

Power to take interim measures

According to Section 17 of this Act, when any party during the arbitration proceeding or at any time after making of the arbitral award, may seek the interim measure before the arbitration tribunal. The arbitration tribunal has the power to take an interim measure relating to:

Appointment of guardian for minor or person of unsound mind;
For the protection of:-

Interim custody and sale of goods which are subjected to the arbitration agreement;
Securing amount which is disputed in the arbitration;
Detention, prevention or inspection of any property or thing which is subjected to arbitration;
Appointment of receiver;
Such other interim measure is necessary for the eyes of the Court.

Power to proceed to ex-parte

In any arbitration proceeding, the arbitrator has the power to proceed to ex-parte i.e in the favor of one party if another party contravenes any provision of this Act. According to Section 25, there are three conditions under which the court may pass an ex- parte award:

When the claimant fails to communicate his statement of claim in accordance with Section 23(1) of the Act.
When the respondent fails to communicate his statement of claim in accordance with Section 23(1) of the Act.
When any party fails to appear at an oral hearing or to produce the document or to produce documentary evidence.

The court, however, doesn’t proceed ex-parte against any party without giving him the notice regarding the court’s intention to proceed ex parte on a specific date, time and place.

Power to appoint an expert

According to Section 26 of the Act, the arbitrator has the power to appoint one or more experts to report to him on a specific issue, if he finds it necessary in any case. The arbitrator also has the power to give the expert any relevant information or documents or property for the purpose of his inspection. If necessary the arbitrator also has the power to appoint the expert as a participant in a hearing but in order to appoint an expert, the expert must have to show the parties that he has expertise in matters related to this case.

Power to make awards

Power to make awards is the most important power as well as the duty of arbitrators which is given under The Arbitration and Conciliation Act, 1996. However, the rules applicable in an arbitration proceeding is:

In matters related to international commercial arbitration, the arbitral dispute shall be decided according to the rules of proceeding which is decided by the parties but if they fail to decide it, then the arbitrator himself decides the rules which are applicable.
In other matters, the arbitral tribunal shall have to decide the rule which is in accordance with the substantive law.

However, with such aforesaid power, at the time of making such an award, the arbitrator also has the duty to consider the following necessary aspects:

The party who is entitled to costs;
The party who pays the cost;
The amount and method of determining those costs;
The manner in which the costs shall be payable;
The cost of the arbitration proceeding or any other expenses fixed by the arbitration tribunal

If the number of arbitrators is more than one, then the decision must be signed either by all the arbitrators or by the majority of them.

Duties of an arbitrator in an arbitration

In arbitration, the parties may impose specific duties on the arbitrator at the time of appointment. The general duties which the arbitrator has to fulfill in all kinds of arbitration are-

Duties to be independent and impartial

Section 12 and Section 18 of The Arbitration and Conciliation Act, 1996 imposed an important duty on the arbitrator that in any arbitration proceeding that he must have to be independent and impartial. By being independent it means that there is no such personal or professional relationship between the arbitrator or parties which may affect the final judgment, however, by impartial, it means that the arbitrator should neither favor nor oppose any party and should give equal treatment to both parties.

Duty to determine time and place of arbitration

According to Section 20 of this Act, it is the duty of the arbitrator to appoint the time and place of arbitration if the parties have failed to decide it amongst themselves. But at the time of determination, the arbitrator must keep in mind the circumstances including the convenience of the parties. The arbitrator unless otherwise agreed by the parties, also has the power to decide other places to hear the witness or expert or to an inspection of documents, goods, and other property.

Duty to disclosure

According to Section 12 of this Act, there is an obligation on an arbitrator to disclose all the relevant facts which are required to be known by both parties at the time of his first encounter with them.

In the case of Steel Authority of India v. British Marine 2016, the Court said that the arbitrator must have to disclose all such facts which are likely to affect impartiality or which might create an appearance of partiality or bias.

Duty to effectively resolve the dispute

The arbitrator should have to make effective decisions without doing any misconduct. However, there is no guideline of misconduct that is given under the Act, its scope is to develop by case to case. The acts which are generally considered as misconduct on the parts of the arbitrator are:

Fails to comply with terms, that is expressly or impliedly given;
Making awards that oppose public policy;
To be bribed or corrupted;
Breach the rule of natural justice.

Duty to determine the rule of procedure

According to Section 19, the arbitration procedure is not bound by any code of procedure. Earlier parties are free to agree on the procedure that may be followed by the arbitration tribunal, It always depends upon the will of the parties but if they do not have any prior agreement on this, then the arbitrator has all the power to decide the procedure for such a case. this power includes the power to determine the admissibility, relevance, materiality or weight of any evidence.

Duty to interpret or correct the award

According to Section 33 of this Act, it is a duty of the arbitrator to correct or interpret the award passed by himself within 30 days from the date of receipt:

A party with notice to another party may request arbitration tribunal to correct any error like any typographical, computation, clerical, or any other error of similar nature;
A party with a notice to another party may request to interpret any specific part or parts of the award.

In this section, the court also may correct any error of the award on its own initiative within thirty days from the date of the arbitration award.

Conclusion

These general powers and duties are important for an arbitrator to conduct fair arbitration proceedings, the arbitrator must also have to draw the checklist upon his specific duties given under the agreement. These duties differ from case to case so for every particular case so it is very impactful in every case.

References

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This article is written by Kabir Jaiswal, a student of National University of Study and Research in Law, Ranchi (NUSRL).

What is a Standing order?

Standing orders are defined in accordance with Section 2(g) of the Industrial Employment Act, 1946, which means rules on matters laid down in the schedule. It deals with rules of conduct for industrial establishments employed workers. Both employer and employee are bound by standing orders. These are statutory service conditions. They are not statutory provisions themselves (which means that even when the’ standing orders’ are approved, they do not become ‘law’ in the sense that the rules and notifications issued under delegated legislation are published as required) –Rajasthan SRTC v. Krishna Kant.

Approval of a Standing order

Approval of Standing Orders– Each employer covered by the Act must prepare’ standing orders,’ which cover the matters required by the’ standing orders.’ Five copies of those should be forwarded to the certification officer for approval. [section 3(1)]
The certification officer informs the Union and its employees and hears their objections. He will then certify the “standard orders” for the industrial establishment. [section 5]
Until standing orders are certified, the ‘Model Standing Order’ prepared by the government will apply automatically. [section 12A]

Can a standing order be modified?

Changes to the Standing Order shall be effected by a similar procedure as above. [section 10] Section 10 deals with the duration and modification of standing orders, which states that standing orders finally certified under the Industrial Employment Act, 1946 cannot be changed Except on agreement between the employer and the employees or a trade union or other representative body of the employees before the expiration of 6 months from the date on which the Standing Orders or last amendment became operational. The purpose of the time limit was to give the standing orders or their modification a fair trial.

Who can apply for Modification?

Before 1956, the right to apply for amendments was only granted to the employer, but later, through the 1956 amending act, it allowed both the employer and the workers to apply for amendments to the Standing Orders. Later in 1982– amendment also included the trade union or other eligible employee representatives who can apply for amendments.

Section 10 (2)

“Subject to the provisions of sub-section (1), an employer or workman [or a trade union or other representative body of the workmen] may apply to the Certifying Officer to have the standing orders modified and such application shall be accompanied by five copies of [***] the modifications proposed to be made, and where such modifications are proposed to be made by agreement between the employer and the workmen [or a trade union or other representative body of the workmen] a certified copy of that agreement shall be filed along with the application.”

In Indian Express Employees Union v. Indian Express (Madurai) Ltd It was concluded that if 2 trade unions are one major minor, then if a minority union requests modification, the majority union may object to such an amendment. Kerala High Court also held that, since there is no time limit in Section 19(2) for making an application for amendments, after the expiration of 6 months from the last amendment. Even after a decade, a modification application can be made.

https://lawsikho.com/course/labour-law-hr-managers — Click Above

Procedure for Modification- Section 10(2)

The application for amendment shall be accompanied by 5 copies of the proposed amendment and, where such amendment is proposed by agreement between the employer and the workmen, a certified copy of that agreement shall be submitted together with the application. This provision applies to the rest of India except in Gujrat and Maharashtra State (Section 10(4)).

Right of employer

Each employer covered by the Industrial Employment Act of 1946 must prepare and send five copies of the orders to the certifying officer for approval.

A right of employee or employer to appeal

An aggrieved party may appeal to the appeal authority within thirty days of the date on which the certifying officer sent him copies of the standing orders. The authority’s order shall be final.

Section 6(1) empowers the appellate authority to do only two things:

Confirm the orders in the form certified by the certification officer.
Confirm standing orders by making the necessary amendments or additions after they have been amended.
The certified standing orders shall be enforceable at the expiration of 30 days from the date on which the certifying officer sends the authenticated copies of the same to the parties.
If an appeal has been filed, it shall enter into force at the expiration of seven days from the date on which copies of the appeal authority’s order are sent to the parties.

Conditions, Hearing & Appeal: Standing order

An employer must submit 5 copies of the draft standing orders proposed by him or her for adoption in an industrial establishment to the certifying officer. An employer will make provision in such draft for every matter set out and such provision would be applicable to the industrial establishment. The draft standing orders to be submitted shall be accompanied by a declaration stating the specified details of the workers employed in the industrial establishment, including the name of the trade union to which they belong.
A request for the certification of joint standing orders shall be made in the form prescribed and the number of copies of the joint draft standing orders, equivalent to the number of trade unions of which the workers working in such industrial establishments are members, plus five, would be accompanied, and would also be accompanied by the details indicated.
The employer shall provide such number of copies of the joint draft standing orders as he or she may deem necessary in the circumstances, in English or in the language commonly spoken to such workers within a period of fortnight or such a prolonged period as the certifying officer may permit.

Authentication of standing order and modification of order

A standing order must be authenticated by signing and sealing the certifying officer’s office or the appeal authority and such officer or authority should forward to the employer by registered letter within a week of authentication and to the trade union or, as the case may be, to the workers ‘ representatives elected in accordance with the law.
A certified standing order shall not be subject to change unless it is agreed between the employer and the workers or between a trade union or other representative body of the workers until the expiry of six months from the date of entry into operation of standing orders or the last modifications thereof.

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This article is written by Sneha Mahawar from Ramaiah Institute of Legal Studies. The article discusses the concept of the Admissibility of Evidence.

Introduction

The term “admissibility” means the state or quality of being admissible or permissible. In the legal sense, the term “evidence” means anything admitted by a Court to prove or disprove alleged matters of fact in a trial. Thus, the admissibility of evidence means any document, testimony, or tangible evidence used in a Court of Law. All evidence is not allowed in the Court, only those evidence which is reliable and relevant are admitted in the Court of Law. Evidence is introduced to a judge or a jury to prove a point or an important element in a case.

Definition of Admission

The term ‘admission’ is defined in Section 17 of the Indian Evidence Act, 1872. In general sense, the term admission means power or permission to enter, admittance, entrance, access, the power to approach. In the legal sense, acquiescence or concurrence in a statement made by another, and distinguishable from a confession in that an admission presupposes prior inquiry by another, but a confession may be made without such inquiry. A fact, point, or statement admitted; as the admission made out of Court are received in evidence.

Principles regarding Admission

As mentioned in Basant Singh v. Janki Singh, 1966, the principles regarding admission are:

It states that there remains no difference between the admission of a party in pleading and other admissions thereafter.
The admission made by a party in a plaint has to be duly signed and verified by that party which could be used as evidence against that party in another suit, but the same could not be termed as conclusive.
An admission cannot be divided into parts and can only be examined as a whole.
An admission can only be read in its entire form and no statements can be taken out of the context to form an admission of a certain fact.
An admission binds the maker to the facts of the case.
An admissibility of a plea of guilt can be determined only if the plea is recorded in the words used by the accused or the person charged with an offence.
For an admission to have a substantive evidence effect, it should be voluntary in nature. Any admission which is made in ignorance of rights or under restraint in which a person is influenced, whether by lawful or unlawful forceful compulsion of their liberty by implementation of physical enforcement; legally for the incurring of civil liability, of a citizen’s arrest, or of subrogation, or illegally for the committing of an offence, of forcing a contract, or of using threats cannot be considered an admission.
Admissions are limited to being only prima facie proof (not needing further proof unless contrary evidence is shown or produced in the Court of Law) and do not carry a conclusive value.
Admissions which are clear, in the words of the accused or the person charged with an offence are considered as the best proof of the facts submitted.

Definition of Evidence

The term evidence is defined in Section 3 of the Indian Evidence Act, 1872. In the general sense, the term evidence means facts or observations presented in support of an assertion. In the legal sense, the term evidence can be described as anything admitted by a Court to prove or disprove alleged matters of fact in a trial.

Relevance of Admission

The terms ‘Relevance’ and ‘Admissibility’ are often considered as synonyms but the legal implication of both the words are very distinct. There’s a very prominent phrase to throw light on the difference between the two words. All admissible evidence is relevant but all relevant evidence is not admissible. The word relevance has a broader scope as compared to the word admissibility. Relevance is the genus of which admissibility is the species. These two words can be distinguished from one another in the following manner:

Relevancy is when the facts are so related as to render the existence or non-existence of other facts probable according to a common course of events or human conduct, they are called relevant. Whereas, admissibility is when facts have been declared to be legally relevant under the Indian Evidence Act, 1872 they become admissible.
Relevancy is founded on logic and human experience. Whereas, admissibility is founded on Law, not on logic.
The question regarding relevancy has been enunciated in Section 5 to Section 55 of the Indian Evidence Act, 1872 Whereas, the question of admissibility is provided in Section 56 of the Indian Evidence Act, 1872.
Relevancy signifies as to what facts are necessary to prove or disprove a fact in issue. Whereas, admissibility is a decisive factor between relevance and proof.
Relevancy merely implies the relevant facts. Whereas, admissibility implies what facts are admissible and what is not admissible.
Relevancy is the cause. Whereas, admissibility is the effect.
In relevancy, the Court may apply its discretion. Whereas, in admissibility, there is no scope for the Court to apply discretion.
All admissible facts are relevant. But, all relevant facts are not admissible. Only legally relevant facts are admissible.

Types of Evidence

Various kinds of evidences according to the Indian Evidence Act, 1872 are:

Oral Evidence

Oral evidence is described in Section 60 of the Indian Evidence Act, 1872. These are the evidence which the person giving has himself seen or heard. It is positive in nature and creates a great impact on the case and establishes facts of the particular case. Such evidence is direct in its nature.

Documentary Evidence

Documentary evidence is described in Section 3 of the Indian Evidence Act, 1872. Such evidence is documentary evidence which is permitted by the Court of Law for inspection. Thus, all the documents permitted by the Court for inspection can be termed as documentary evidence.

Primary Evidence

Primary evidence is described in Section 62 of the Indian Evidence Act, 1872. Primary evidence is the most superior kind of evidence and is admissible and permissible in the very first place. This evidence plays a vital role in the case.

Secondary Evidence

Secondary evidence is described in Section 63 of the Indian Evidence Act, 1872. These evidence are admissible in Court in case the primary evidence is missing. It is known as secondary evidence because it is inferior to the primary evidence and in case of a conflict the primary evidence prevails.

Real Evidence

Real evidence is evidence which is obtained by inspection of a particular physical object and not given by any witness in particular.

Hearsay Evidence

Hearsay evidence is when a person has not particularly himself seen or heard something in the happening of that event but got the knowledge of certain happening of an event from someone else. This kind of evidence is the weakest kind of evidence and is admissible only if it is backed up by another strong evidence and can be proved.

Judicial Evidence

Judicial evidence is evidence received by the Court in proof or disproof of facts before it. The statements provided by the witnesses are also termed as judicial evidence. This is the evidence produced directly in front of the magistrate.

Non-judicial Evidence

Non-judicial evidence is the evidence which is confessed outside the Court and not in front of the magistrate. This evidence is only admissible if it could be proved in the Court later as judicial evidence.

Direct Evidence

Direct evidence is the kind of evidence which establishes a particular fact. This evidence plays a vital role in deciding the matter in a particular issue. For example, a testimony delivered by witnesses.

Indirect or circumstantial Evidence

This kind of evidence is not a definite proof but a general idea of what possibly could have happened in a given circumstance. This evidence attempts to prove the facts contained in the issue by providing other facts and affords an instance as to its existence.

Conditions of Admissibility of Evidence in Court

Section 20 of the Indian Evidence Act, 1872 states about the admissions of persons referred to or by a party to a particular suit. This section brings another exception to the general principle of admissions made by strangers to the suit. Admissions made by a third party are considered relevant and are admissible when a party refers another to him for information in regard to uncertain or disrupted manner.

There are two basic factors that are considered when determining whether evidence is admissible or not:

Relevant

The evidence must prove or disprove an important fact in the criminal case. If the evidence doesn’t relate to a particular fact, it is considered “irrelevant” and is therefore inadmissible and is also not permissible in Court.

Reliable

Reliability refers to the credibility of a source that is being used as evidence. This usually applies to witnesses’ testimonies.

K.M. Singh v. Secretary Indian University Association 1992

In this case, it was held that:

Section 20 is an exception to the general rule i.e., ‘admission by a party to the proceeding or his agent’ which is laid down in Section 18.
Section 20 deals with a class of vicarious admissions.
It states that a third person’s opinion is taken into consideration when the third person is referred to by one party in the matter of dispute.
The third person’s opinion is considered for the reason that one party in dispute approves of the third party’s opinion while anticipating the other party to enquire.

What constitutes admissible evidence under the Indian Evidence Act, 1872?

Evidence under the Indian Evidence Act, 1872 means and includes:

All the statements which are permissible and admissible by the Court made by the witnesses before it or in front of the magistrate, regarding the matters of a dispute under question.
All the documents produced for inspection as per the order of the Court including the electronic records.

What kind of evidence are inadmissible in Court

What are the factors that determine the inadmissibility of the evidence?

The factors determining the admissibility of the evidence in Court proceedings are:

Unfairly Prejudicial

The word prejudicial means tending to convince based on past history rather than on evidence about the case in hand. The evidence which is unfairly harmful, detrimental, injurious, or biased towards the case without establishing any proper fact and outraging the jury or the judge without providing any material fact but conjecture is often excluded from the Court proceedings. For example, a child’s photograph around the victim’s body.

Wastes Time

During trials, the advocates representing their clients often provide with evidence or witness which can lead to the wasting of time of the Court. Such witnesses or evidence are excluded from a Court proceeding. For example, it is a waste of time for the Court if the advocate produces twenty separate people to prove that the accused is an honest person.

Misleading

Evidence which could draw away the jury’s or the judge’s attention away from the main issue or essence of the case such evidence is considered as misleading evidence and excluded from the Court proceedings. For example, a minor’s gender in a case of rape is irrelevant because the main fact to be established is whether rape was conducted or not on the minor and it is not important to know whether the minor was of which gender.

Hearsay evidence

Hearsay evidence is when a person has not particularly himself seen or heard something in the happening of that event but got the knowledge of certain happening of an event from someone else. Such evidence is inadmissible because any human can lie and blame the other person for saving someone or to escape from punishment.

For example, if ‘A’ a witness claims that another witness ‘B’ said the defendant hit the victim with a rod and the prosecutor wants to use the testimony to prove that the defendant hit the victim, that testimony is considered hearsay.

Character

The evidence produced by the plaintiff party to prove the character of the defendant has certain traits which are excluded from the Court proceedings unless the defendant introduces the evidence of character first in the hearing.

Expert Testimony

Expert testimony is only admissible when originally given by an expert and not by a layman. A layman cannot provide expert testimony, a layman’s testimony is not admissible.

Privileges

The Court does not allow any kind of privilege information obtained by any attorney-client privilege as well as any other self-incriminating information. Such information is confidential and would perjure the attorney and is inadmissible in the Court of law.

Illustration of evidence which is considered inadmissible in Court

‘A’ sold a car to ‘B’. ‘B’ asked ‘A’ whether the car sold by ‘A’ to ‘B’ functions properly or not. ‘A’ replied to ‘B’ saying- “Go and ask ‘E’ as he knows all about it”. Thus, a statement made by ‘E’ would be admissible in Court. But in case ‘B’ himself went and asked ‘E’ whether the car is functional or not without ‘A’ telling him to do so. Then the statement made by ‘E’ would be inadmissible in Court.

Section 136 of the Act

Section 136 of the Indian Evidence Act, 1872 states that:

Only the judge can decide whether evidence is admissible or relevant or permissible in Court. The judge may ask an individual to explain in what way or manner the individual person proposes to show proof or establish a fact. The judge would allow the proof only if it is relevant enough to the matters in dispute and if the judge is satisfied with the reaction of the particular individual. The aspect of relevance supersedes the aspect of admissibility in the Court proceedings.

Admissibility of Evidence in Courts

In Civil proceedings- In Civil proceedings, an element of a case is weighed by the standard or superiority or power of the evidence. However, the evidence produced is generally government documents such as leases, sale deeds, rent agreements, gift deeds, etc.
In Criminal proceedings- In Criminal proceedings, the evidence is used to prove whether the defendant in a disputed matter is guilty or not beyond a reasonable doubt. However, in criminal proceedings evidence can only be used when it is considered admissible and relevant to the facts or issues or matter or any other factor of dispute. The decision of whether an evidence is admissible or not is on the Court’s discretion.

Admissibility of Electronic Evidence under Act

Introduction

The Indian Evidence Act, 1872 was amended by manifestation of Section 92 of Information Technology Act, 2000 (Before the amendment). Section 3 of the Indian Evidence Act, 1872 was also amended that previously it only included all the documents which were produced for inspection in the Court as evidence but after the amendment the Act said that it included all the documents including the electronic records which were produced for inspection in the Court as evidence. And in regards to the documentary evidence stated in Section 59 the words ‘Contents of documents’ and ‘Contents of documents or electronic records’ were substituted by Section 65A and Section 65B to include the admissibility of the electronic evidence and other electronic records. Thus, just like other evidence, electronic evidence or digital evidence is also considered as evidence admissible in Court if it is relevant and not against any factors of inspection of the Court.

What is an E-evidence?

The term e-evidence can be expanded as electronic evidence. It is also said to be digital evidence. In today’s world use of the internet, mobile phones, mobile applications, laptops, computers, tablets, ipads, etc. is very common. Almost every next person creates a profile on Facebook, Snapchat, WhatsApp, Twitter, Instagram, etc. There is continuous monitoring of all the activities and events taking place in a particular area by the guards and policemen via CCTV cameras and other devices. The footages or snaps or call records obtained from sources that are authentic in nature and can be produced before the Court to prove the defendant guilty and are relevant and admissible are termed as e-evidence. Examples of electronic evidence are data stored in a computer system, information transmitted electronically through any communication network, etc.

Sources of E-evidences

Electronic devices are used on an everyday basis and are an integral part of the daily life of an individual. Some of its sources are:

Digital/Video camera

This source can provide pictures, videos and files stored locally or on the media card of the camera.

Cell phone

Such a source can provide with all the call logs, text messages, applications used, social media accounts and everything from all other categories in that particular cell phone about whom it belongs to.

Computer/Laptop

Computers or laptops provide data like social media accounts, internet search history, documents saved in, email accounts if any and all other information present within the system.

Mobile device

Such a source can provide with all the call logs, text messages, pictures, videos, files stored, applications used, social media accounts and everything from all other categories in that particular cell phone about whom it belongs to.

File storage

These devices include hard drive, thumb drive, optical media, and Pendrive. These devices contain plenty of information of all sorts and are highly useful.

Wearables

These are the devices such as fit bits and Mi watches etc. They inform about an individual’s location. This is an essential source to track down people.

Automated Licence Plate Readers

They are termed as LPR. These show the pictures of the car, metadata and geolocation.

In-car cameras

This kind of evidence provides videos of the events of the activities inside a car or any other vehicle inside which it is placed.

Bord worn cameras

This kind of evidence provides videos of the events of the activities wherever the person wearing such a device travels.

Drones

This kind of evidence is also known as unmanned aerial systems. Such evidence captures the videos of places it is flown towards.

Closed-circuit television (CCTV)

This evidence provides videos and places where it is placed. It captures all the necessary and other relevant minute details and can be viewed later and can be used as strong evidence.

Interview recording room system

Such a source of obtaining evidence helps to monitor the behaviour of people present inside the room and take videos of activities and events of the area in which it is placed.

Section 65A and Section 65B of the Indian Evidence Act

Section 65A and Section 65B were added by the Information Technology Act, 2000 substituting Section 59 of the said Act. Section 65A is always read along with Section 65B as Section 65A contains the contents of electronic records which have to be proved by the provisions mentioned in Section 65B. Section 65B states the admissibility of electronic records.

It states that any record which is contained in any electronic or digital records which are printed on a sheet, copied from somewhere, stored in a particular place or recorded in a device or copied in any visual media shall be termed as a document. And if the terms specified are satisfied by such a document it shall be necessarily admissible in Court proceedings without any proving of such document in the future.

Section 65A

Section 65A of the Indian Evidence Act is always read along with Section 65B of the Indian Evidence Act, 1872 as Section 65A of the Act contains the contents of electronic records which have to be proved by the provisions which are mentioned in Section 65B of the Act.

Section 65B

Section 65B of the Indian Evidence Act states the admissibility of electronic records in Court proceedings. It states that any record which is contained in any electronic or digital format shall be termed as a document. And if the terms specified in Section 65B of the said Act are satisfied by such a document then it shall be necessarily admissible in Court proceedings without any proving of such document in the future.

The conditions of Section 65B are:

The information shall be produced during the regular course of activities by the person having lawful control over the use of the computer.
The information has been regularly fed into the computer in the ordinary course of the said activities.
Throughout the material part of the said period, the computer was operating properly or the improper operation was not of such nature to affect the electronic or digital record or the accuracy of its contents produced.
The information contained in the electronic or digital records is derived from such information fed into the computer in the ordinary course of an individual’s activities.

Case laws on E-Evidence

Jagjit Singh v. State Of Haryana (2006) 11 SCC

In this case, the speaker of the legislative assembly, Haryana disqualified a member for defection. A case was instituted. While hearing the matter, the Supreme Court of India took into consideration the digital evidence in the form of transcripts from the Zee News television channel, the Aaj Tak channel and the Haryana News of Punjab Today television channel. The Court held that the electronic evidence taken into the record was relevant to the matter in dispute and was said to be admissible.

State (NCT of Delhi) v. Navjot Sandhu (AIR 2005 SC 3820)

In this case, an appeal was filed in the Supreme Court of India against the conviction of people followed by the attack on the Parliament on the 13th of December, 2001. This case dealt with the matter of whether the proof and admissibility of mobile or telephone call records are valid or not.

The Supreme Court of India held that a cross-examination of the competent witness familiar with the functioning of the computer during the relevant time and the manner in which the printouts of the call records were taken was sufficient enough to prove the call records no certificate under Section 65B(4) of the Evidence Act, 1872 is compulsory if it can be proved effectively in the cross-examination of the witness.

Anvar P.V. v. P.K. Basheer And Others (2014 10 SCC 473) on 18th September

In this case, the Supreme Court of India has interpreted Section 22A, Section 45A, Section 59, Section 65A and Section 65B of the Indian Evidence Act, 1872. The Supreme Court of India settled all the conflicting judgments and controversies of all the other lower courts including various High Courts and the Trial Courts. It held that the secondary data found in CD’s, DVD’s, and Pendrive are not admissible in the Court proceedings without a proper authentic certificate according to Section 65B(4) of the Indian Evidence Act, 1872. The Court further explained any electronic evidence without the certificate cannot be made admissible and be allowed to be proved in the Court by any oral evidence and also by any expert’s opinion according to Section 45A of the Indian Evidence Act, 1872.

Abdul Rahaman Kunji v. State of West Bengal (Wb/0828/2014)

In this case, while deciding the admissibility of an electronic record that is an email it was stated that an email which can be downloaded and printed directly from the email account of an individual can be proved by Section 65B along with Section 88A of the Indian Evidence Act, 1872. The High Court of Calcutta passed a judgment that the testimony of a witness to carry out certain procedures to download and print the same is sufficient enough to prove the electronic communication and can be termed as electronic or digital evidence if it satisfies other factors of admissibility.

Conclusion

Hence, an evidence is admissible in Court proceedings only if it is relevant to the facts or issues or matters in dispute. If evidence is admissible but irrelevant to the case then it is only a waste of time for the Court. Thus, evidence shall be relevant and shall also satisfy all the specified provisions of admissibility then only it can be admissible in the Court of Law. As of the present situation, even the electronic or digital records are admissible as evidence as they are reliable, relevant and obtained from an authentic source of electronic communication.

Evidence is the most integral and indispensable element of any proceedings either criminal or civil and shall be safeguarded from any kind of manhandling or else it might turn inadmissible in the Court.

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This article has been written by Kavita Chandra, a student of Vivekananda Institute Of Professional Studies, affiliated to Guru Gobind Singh Indraprastha University, Delhi. She has discussed the role of the International Criminal Court.

Introduction

The International Criminal Court (ICC) was established in 2002 and it seeks to prosecute those who are guilty of serious international crimes like war crimes, genocide and crimes against humanity. It offers justice to the victims of atrocities and deters the individuals from committing large scale political crimes. On 1 July, 2002, after receiving more than sixty ratifications the Court began its sittings. Its headquarters are in the Netherlands at The Hague. ICC is different from the International Court of Justice as the ICC handles prosecutions of individuals whereas ICJ hears disputes between the States. The jurisdiction of the Court extends to those offences which occurred after 1 July, 2002, that were committed either by a national of the state that has ratified the agreement or in the State itself.

But since its inception, the Court has faced setbacks and it has been unable to get support from the major powers including China, United Nations, Russia, etc. As human rights crises continue to increase rapidly, the mandate of ICJ is proving to be both intimidating and more needed than what its founders had envisioned. Although the Rome Statute was widely praised (some 140 countries had signed the agreement by the time it entered into force), few countries in the Middle East or Asia joined.

Further, by 2002, China, Russia, and the United States had declined to participate, and the United States had threatened to withdraw its troops from the United Nations peacekeeping forces unless its citizens (both military and civilian) were exempted from prosecution by the ICC. Nevertheless, within five years of its first sitting, more than 100 countries had ratified the treaty. All member countries are represented in the Assembly of States Parties, which oversees the activities of the ICC.

What are the Court’s origins?

In the wake of World War II, Nuremberg Trials (the first international war crimes tribunal) was launched by the Allied powers to prosecute top Nazi officials. Until the 1990s, the governments did not coalesce around the idea of forming a permanent court to hold the individuals guilty for the world’s most serious crimes. To deal with war crimes in Yugoslavia and Rwanda, the United Nations had set up ad hoc international criminal tribunals, but these tribunals were considered to be inefficient and inadequate by many international law experts. Trinidad and Tobago requested that a UN commission look into the creation of a permanent court in 1989. Such efforts gained support in the following years, especially in Europe and Africa. The European Union adopted a binding policy in support of the International Criminal Court in 2011.

In July 1998, at a conference in Rome, the founding treaty of ICC was adopted by the UN General Assembly. In July, 2001, the Rome Statute entered into force after it was ratified by more than sixty countries.

Which countries are members of the Court?

There are 123 countries which are party to the Rome Statute. Countries including Ethiopia, North Korea, Iraq, Turkey, Saudi Arabia, Indonesia, China and India never signed the treaty. Several dozen other countries signed the statute, but it was never ratified by their legislatures. These countries include Egypt, Israel, Iran, Sudan, Russia, Syria, and the US.

How does the Court work?

The ICC is based in The Hague, a city in the Netherlands that hosts many international institutions, and has field offices in several countries. The court does its investigative work through the Office of the Prosecutor, which is led by Fatou Bensouda, a lawyer from Gambia. There are eighteen judges in the Court, each judge is from a different member country and is elected by the member states. The ICC requires that its members seek a gender balanced bench and requires its judiciary to include representatives from each of the United Nations regions. The judges and prosecutors are elected for a term of 9 years and the same is non renewable. The two Vice Presidents and the President of the Court are elected from among the judges of the Court; they handle the administration of the Court along the registry. The court has jurisdiction over the following categories of crimes under international law:

genocide, or the intention to destroy a national, ethnic, racial, or religious group in whole or in part;
war crimes, or henious breaches of the laws of war, including the prohibitions placed by the Geneva Conventions’ on torture and attacks on civilian targets, such as schools or hospitals;
crimes against humanity, or the violations committed through large scale attacks against the civilian populations, or violations committed as part of large-scale attacks against civilian populations, including rape, slavery, torture, imprisionment and murder; and
crimes of aggression, or the use or threat of armed force by a State against the territorial integrity, sovereignty, or political independence of another State, or violations of the UN Charter.

The court can start investigation into the crimes in one of three possible ways: either a situation within the territory of the member country can be referred by such country to the Court; or the UN Security Council may refer a situation; or the prosecutor can “suo moto” launch an investigation into a member state. The court has the power to investigate individuals from the non member states if the offences alleged took place in the territory of a member state and if the non member state accepts the jurisdiction of the court or with the authorisation of the Security Council.

In order to open an investigation, the prosecutor must ensure that the alleged crimes are of “sufficient gravity” and he may ensure himself about the same after conducting a preliminary examination. After the investigation is opened, in order to collect evidence, the prosecutor’s office sends investigators and other staff. Before issuing the arrest warrant or summons, it must be approved by the judiciary on the basis of information provided by the prosecutor. A group of pretrial judges decide as to whether a case should be brought to trial. Defendants need to represent themselves by a counsel and they may also seek outside counsel to represent them. If necessary, the court pays for the counsel. On a trial bench, at least two out of the three judges need to vote so as to decide the conviction and sentences. The convicted persons may appeal to the ICC’s appellate bench, which consists of 5 judges.

The ICC is intended to complement the national courts, it is not made to replace the same. When national courts have been found to be unable or unwilling to try a case, only then the ICC can act. And it can only exercise jurisdiction over crimes which have been committed/occurred after the statute came into effect in 2002.

Ten key facts about the legal process

In furtherance to the key features that are listed above, some of the basics are as follows:

The ICC does not prosecute those who are under the age of eighteen years when a crime was committed.
Before a prosecutor can investigate, a preliminary examination must be conducted considering the matters such as jurisdiction, gravity, complementarity, sufficient evidence and the interests of justice.
While investigating, the Prosecutor must disclose and collect both incriminating and exonerating evidence.
The defendant would be considered innocent until he/she is proven guilty. The onus of proof lies with the Prosecutor.
During all stages of proceedings, that is, Pre-Trial, Trial and Appeals, it is the duty of the prosecutor that the defendant should be given all the information related to the case in a language he or she understands fully; thus the ICC proceedings are conducted in multiple languages, with teams of interpreters and translators at work.
Pre-Trial judges may issue warrants of arrest and have to ensure that there is enough evidence available so as to send a case for trial.
During the Pre-Trial phase, (before a case is committed to trial) the defendant is referred to as a suspect and not as an accused. Once the case reaches its trial stage, the defendant would be referred to as the accused as at that point the charges have been confirmed.
Trial judges hear the evidence from the defence, the Prosecutor and the victims’ lawyers, render a verdict, and sentence and decision on reparations if a person is found guilty.
Judges who hear appeals render decisions on appeals from the defence or Prosecutor.
A case which has been closed without a verdict of guily can be reopened if the prosecutor brings on record new evidence.

How is it funded?

The ICC’s annual budget in 2017 stood around $160 million. The majority of the funding comes from member states. The largest contributions in the year 2017 came from Germany, France, Japan and the United Kingdom. Where the cases are referred to the Court by the Security Council, the UN General Assembly can approve additional funding in such cases. Voluntary contributions are also offered by some transnational organisations and governments. Some analysts criticize ICC as being too expensive.

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What cases has the ICC opened?

The ICC has held more than forty individuals; all are from African countries. 16 people have been detained at The Hague, 8 have been convicted of crimes and 4 have been acquitted. The Government of Central African Republic, Uganda, Mali and the Democratic Republic of Congo have referred cases related to the civil wars and various other conflicts that have raged in these countries. The first referral to ICC was made by the UN Security Council in 2005, for alleged crimes in the Darfur region of Sudan. In 2011, the UN Security Council again made a referral for alleged crimes in Libya. In addition to this, the prosecutor’s office opened many investigations suo motu in Kenya in 2010, Georgia in 2016, Ivory coast in 2011 and Burundi in 2017. In ten countries including Afghanistan, Myanmar, Ukraine, Columbia and Venezuela, preliminary examinations have been opened by the ICC.

High-profile cases include

Muammar al-Gaddafi: The situation in Libya was referred to ICC by the Security Council in 2011, on the basis of the allegations that during the Arab Spring Protests, the Libyan Leader was responsible for killing unarmed civilians. The Court issued arrest warrants for Qaddafi as well as his brother-in-law and his son in June, 2011, but he went into hiding and before he could be apprehended, he was killed. Saif al-Islam (Qaddafi’s son) remains a fugitive.

Omar al-Bashir: Bashir, the first sitting president was indicted by the ICC for allegations of genocide, war crimes and crimes against humanity in Sudan’s Darfur region. He is accused of planning deportations of members of ethnic groups and mass killings. Bashir avoided arrest by travelling abroad after the assurances of foreign leaders that they won’t turn him in. The Sudanese military in April, 2019 ousted Bashir and placed him under arrest due to anti-government protests but they said that they won’t extradite him. Sudan’ has recently signaled that Al Bashir might appear in the ICC.

Uhuru Kenyatta: The ICC opened an investigation into violence in 2010 that killed more than 1000 people. Kenyatta and five other major political leaders were named as suspects of crimes against war and humanity. The investigation continued as Kenyatta won the presidency in 2013 with another ICC suspect William Ruto as his running mate. The charges against Kenyatta were dropped by the ICC in 2014 and the charges against Ruto were dropped in 2016. Further, the prosecutor’s office claimed that the Kenyan government was uncooperative and the tampering of witnesses made the case fall out.

Criticism

Some believe that the court does not have much authority which makes it ineffective and inefficient at putting away war criminals while others believe that the court has too much prosecuting powers which threatens state sovereignty and that it lacks due process. Debates about the qualification of judges were also going on. On the other hand, some worry that this prospect of international justice results in prolonging conflicts by deterring criminals from surrendering. The advocates of the court have also admitted that it has shortcomings. ICC has been accused of disproportionately targeting the African continent by many African nations. The court has more than two dozen cases and most of these have dealt with the alleged crimes in African states. Kenyatta called on the members of the African Union at a 2013 summit, to take back their support from the Court. In Kenya and in other countries, the Court still maintains broad public support.

References

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This article is written by Muskaan Garg from Symbiosis Law School, Pune. This article covers sustainable development goals with its extent from its origin to its implementation at various levels. The article also mentions the role of India in the development and implementation of sustainable development goals.

Introduction

The alarming magnitude of climate change has been an imperative sign to think and prepare better for the future. The era of the 21st century calls for an immediate and reasonable debate upon what the future further demands of us. The perspective can be in respect of changes in the global environment, development and economy, and their relation of cause and effect. The progress of the global economy taking a toll on the environment needs to be addressed. The development needs to be environmentally efficient and sustainable with a people-centred approach.

Sustainable human development or people-centred development has gained increasing acceptance over the last few years based on its balanced approach between economic development and sustainability of the environment. There are various unprecedented challenges waiting to be dealt with due to the rapid urbanization and globalization. With cities becoming focal points of major developments and mighty opportunities, they act as strong magnets attracting huge populations which are greatly complimented with tremendous challenges like worsening pollution, vivacious use of natural resources and mass exploitation of energy sources.

The advent of the term and its necessity

In 1972, the United Nations Conference on the Human Environment took place in Stockholm which highlighted the concerns for preventing pollution and enhancing biodiversity and environment to ensure the rights of humans to a healthy and progressive environment.

In 1987, the United Nations World Commission on Environment and Development issued the Brundtland Report which emphasized three fundamental components of sustainable development: environmental protection, economic growth and social equity.

The term sustainable development was defined as a way of development where the needs of the present are met without compromising the ability of future generations to meet their own needs. It was coined by Doctor Gro Harlem in the Brundtland Report. The concept of needs in the definition refers to the essential needs of the world’s poor which should be given ultimate priority. There also needs to be an idea of limitation imposed on the environment’s ability to be able to meet present and future needs.

The necessity of sustainable development and its implementation was realized when imperative changes in the functioning and effects of environment were noticed. The changes followed by disasters acted as an alarm to what the future could behold, the understanding of which led to the foundation of concept of sustainable development and living. It was argued that if humans keep acting independently towards pursuing their individual interests then it won’t be long before all the resources exhaust due to over exploitation. It was thereby felt that mankind needed to change its ways and means and diverge to a sustainable development track.

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Sustainable Development Goals

Sustainable development goals were adopted in 2015 by all member nations of the United Nations as a universal action to end poverty and pollution, thereby protecting the planet and providing peace and prosperity to everybody by the advent of 2030. They represent the post 2015 development agenda and are a set of 17 goals consisting of 169 targets globally set to be the blueprint towards a better and more sustainable future for all.

The three primary objectives of sustainable development goals are:

Economic growth.
Environmental protection.
Social inclusion.

The sustainable development goals have succeeded over millennial development goals in content and applicability. The previous goals were being criticized for being too narrow in description and superficial in implementation. The millennial development goals focused more on world development through relations between countries and their support towards development of other countries. The newly drafted sustainable development goals were far wider in context and provided a much more inclusive perspective and framework towards development without depending on the relation between the countries. They were more globally applicable and were created by the largest United Nations program thereby providing a firm foundation.

The sustainable development goals are:

No Poverty: By 2030, eradicate extreme poverty for all people everywhere.
Zero Hunger: End hunger, achieve food security and improved nutrition by 2030.
Good Health and Well-being: Ensure healthy lives and promote well-being for all at all ages by 2030.
Quality Education: Ensure that all girls and boys complete free, equitable and quality primary and secondary education by 2030.
Gender Equality: To achieve gender equality and empower all women and girls.
Clean Water and Sanitation: Ensure availability and sustainable management of water and sanitation for all by 2030.
Affordable and Clean Energy: Ensure access to affordable, reliable, sustainable and modern energy for all by 2030.
Decent Work and Economic Growth: Promote sustained, inclusive and sustainable economic growth.
Industry, Innovation and Infrastructure: Build resilient infrastructure, promote inclusive and sustainable industrialization and foster innovation by 2030.
Reduced Inequality: Reduce inequality within and among countries by 2030.
Sustainable Cities and Communities: Make cities and human settlements inclusive, safe, resilient and sustainable.
Responsible Consumption and Production: Ensure sustainable consumption and production patterns.
Climate Action: Take urgent action to combat climate change and its impacts.
Life below Water: Conserve and sustainably use the oceans, seas and marine resources for sustainable development.
Life on Land: Protect, restore and promote sustainable use of terrestrial ecosystems, combat desertification and halt biodiversity loss.
Peace, Justice and Strong Institutions: Promote peaceful and inclusive societies for sustainable development; provide access to justice for all.
Partnerships to achieve goals: Strengthen the means of implementation and revitalize the global partnership for sustainable development.

Environmental programs and movements

UNECE: The United Nations Economic Commission for Europe was established in 1947 in order to promote integration among its member nations. It supports the countries in implementation of the sustainable development goals as it provides a platform for various governments to engage and cooperate with standards and conventions acting in place. It has a multispectral approach which makes it possible to tackle inter connected challenges in a better integrated manner.

Human Development Index: The Human Development Index, introduced in 1980 is a statistical tool to measure a country’s economic and social progress and achievements. It encapsulates dimensions like health, education, sanitation, economy, security and environmental aspects. The Human Development Index is also a measure of ecological footprint. An ecological footprint represents the maximum limit of consumption per person according to Earth’s ecological capacity. Minimum HDI guarantees satisfaction of human needs while anything beyond it represents over consumption of resources thereby making way for compromise for future generations.

Millennium Ecosystem Assessment: It was a four years long investigation started by the United Nations in 2001. Over 1200 researchers had the task to assess the consequences that ecosystems’ changes had on human wellbeing. The main findings of the research summarized that evolution of ecosystems have caused large and irreversible biodiversity loss which further aided climate change and more risk of nonlinear changes occurring due to the same.

Elen MacArthur Foundation: The Ellen MacArthur Foundation is a UK registered charity which aims to inspire a generation to re-think, re-design & build a positive future through the framework of a circular economy. A circular economy is based on principles of keeping products and materials in use, reducing waste and regenerating natural systems. They aim to reduce waste and pollution by bringing changes to the root level of the products like the manufacturing process and the designing factors. They profess that the materials and products used by the economy should be reusable and repairable thereby preventing their existence in the landfills. They believe that with protecting we should also actively improve and upgrade the environment. Thereby in its latest reports in 2016, the foundation strongly recommended implementation of circular economy within the country.

Intergovernmental Panel on Climate Change: This is an intergovernmental body of the United Nations which is delegated with the task of providing the world with objective and related scientific information for better understanding of human induced climate change and it’s all possible natural, political and economic risks and effects. The agency has been successfully delivering reported data and analysis through regular, annually and special reports. The latest reports, in 2018 and 2019, consisted of analysis on temperature rise, land degradation and changes in cryosphere and oceans. The analysis pointed that immediate actions need to be taken in order to prevent the average temperature from rising beyond two degrees Celsius and its devastating impacts. It requires quickening the reduction of carbon dioxide emissions.

India’s involvement

India has a major contribution in the framing of the sustainable development goals. It was the only country to argue for initiation and adoption of nationally determined contributions to measure and map the progress of sustainable development goals. India has also demonstrated bold commitment to provide funding to the United Nations trust for the institution of SDGs. It was one of the few countries to begin effective planning for the achievement of SDGs even before their final crystallization. India became one of the foremost countries to participate in Voluntary National Reviews (VNRs) where various surveys are used to measure and graph the progress of ascertained goals, thereby promoting the inculcation of the sustainable development goals.

India’s role is a long lineage based on three parameters- ideation, diplomacy and institutional. The country has been largely associated with formulation and implementation of international norms which have also been accepted by all member nations with complete harmony. In diplomacy, India has worked with the G77 nations to help them collaborate better with the norms put forth and has worked towards bringing the nations to consensus agreements reaping benefits for all. Institutionally, India’s endeavor has always been to strengthen the purview and aim of the United Nations in economic, political and environmental matters. Even the agreements not pertaining to the UN have been persuaded to follow similar principles and guidelines by active participation and promotion by India.

Advent of sustainability in India

The doctrine of sustainable development in India was introduced by the case of Vellore Citizen Welfare Forum v. Union of India. It was held in this case that precautionary principle and polluter pays principle are the basis of sustainability. In the case of Narmada Bachao v. Union of India, it was stated that development should be of the extent that can be sustained by nature with no or little mitigation. On similar lines it was held, in the case of Indian Council for Enviro Legal Action v. Union of India, that while economic development should not be done at the cost of ecological destruction, the same should not be hampering economic development. It was stated that economic and ecological developments should be well balanced with effectiveness of both intact.

Related laws and implementations in India

There are several laws which have been passed which include

National Green Tribunal: The legislature enacted The National Green Tribunal Act in 2010 after attending all major environmental conferences around the world. The tribunal aims at effective and quick disposal of cases involving multi corporal issues related to the environment. NGT is empowered to hear all matters related to environment and has furthered the crusade of environment protection aiming for better and effective implementation of sustainable development goals. The tribunal is not bound by Code of Civil Procedure 1908, instead is supposed to follow the principles of natural justice. In the case of Prafulla Samantray v. Union of India, the tribunal ordered suspension of the POSCO ( South Korean steel-making company) steel plant in Odisha with the opinion that though there is need for industrial development, it should be within the parameters of sustainable development and should keep in check all related environmental concerns.

The phrase of the present government “Sbka Saath Sbka Vikas” which translates to ‘collective effort, inclusive development’ is being stated as the countries national development agenda. Several of the government’s programs would directly contribute to advancement of the SDG agenda.These include Swachh Bharat mission, Beti Bacho Beti Padhao, Pradhan Mantri AwasYojana, Smart Cities, Pradhan Mantri Jan Dhan Yojana, Deen Dayal Upadhyay Gram Jyoti Yojana and Pradhan Mantri UjjwalaYojana, among others.

The Namami Gange Mission: This integrated conservation mission was introduced in 2014 with the twin objective of rejuvenation and preservation of the national river ganga. The mission encompasses the development and maintenance of sewage treatment infrastructure and also factory effluents handling. It also takes into account public awareness, effective afforestation and riverfront development and cleaning procedures.

National Clean Air Programme in 2019: India formally joined the climate and clean air coalition for effective implementation of the national clean air programme which is a comprehensive plan to reduce air pollution, keep it in check and simultaneously improve the Air Quality Index. This was done in consideration to the recent massive dropping of the quality of air in the northern region of the country.

Conclusion

Undeniably, adhering to the sustainable development goals is the need of the hour. It is time that each one of us adopt an ‘energy-efficient and green’ mind-set and use the natural resources available equitably, judiciously and save them for our future generations, as the best way to predict the future is to create it.

Hence, India needs to hustle towards the attainment of its sustainable development goals by means of proper planning, coordination and implementation of practices and policies which aid in the formation and maintenance of a self-sustainable and developed country.

References

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This article is written by Tanya Gupta, a 2nd-year law student, from BVP-New Law College, Pune. In this article, the author has discussed the concept of “Judge’s power to put questions or order production”.

Introduction

It is the judge’s power or right to put questions to witnesses related to a particular case which is expressly recognised in Section 165 of the Indian Evidence Act, 1872. It is expected from the judge as well as it is his duty to be well aware of all the evidence presented before him to discover the truth. In order to give the fair verdict or judgement, it is mandatory for the judge to question witnesses on points which the lawyer have either willingly overlooked or left. If the judges are not satisfied with the way in which examination of witnesses is conducted by the lawyer he has the right and duty to intervene with the questions.

Court’s power to ask questions

It is the duty of a judge to discover the truth and for that purpose, he may ask any question in any form at any time to the witness about any fact relevant or irrelevant related to the case but this he must do without trespassing the function of the counsel and without appearing to frighten the witness.

There is no time limit for which the judge may ask a question and if he has not got the depth of the matter he should further go with the examination no matter whatever is the number of questions required to disclose the truth. Under Section 165 of Indian Evidence Act, 1872 the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question. It is the discretionary power of the judge to give permission for cross-examination of the witnesses.

Section 165 of Evidence Act, 1872 and Section 162 of the Code of Criminal Procedure

It is true to state that Section 162 of Criminal Procedure Code imposes a ban on the use of statements of witnesses recorded during police investigation but under Section 165, a court has the right to use the statement made by the witnesses during the investigation. The restriction imposed under Section 162 of the Criminal Procedure Code cannot limit the power of the court under Section 165 of Evidence Act.

Section 162 of Evidence Act, 1872 and Section 311 of the Criminal Procedure Code

The main objective of Section 162 of Evidence Act is to enable the Court to reach the truth irrespective that the prosecution or defence has failed to produce some essential evidence which is necessary to give the fair verdict. The court may summon any witness at any stage of the proceeding until the judgement is delivered. It is cleared from this section that a Court can call the witness at any stage but if it is possible it should examine the witness before the defence is closed. The Section consists of two mandatory parts which are as follows:

Giving discretionary powers to the Court to examine any witness at any stage
It compels the Court to examine the witness if his evidence produced before him is essential for judgement of the court.

Under Section 311 of The Code of Criminal Procedure, 1973 the court can summon or examine or re-examine the witness before the Court. However, Section 311 does not provide that the Court gives permission to prosecution to produce any witness or documents which is already examined or recorded in the Court. It should be kept in mind that the courts are not to act as agent of any of the parties under this section.

Under the first part, the judge may call any witness whose evidence is considered helpful in giving judgement. Under the second part, the judge may call any witness if it appears to him to be essential for the only decision of the court. The purpose of both the parts of the section is to end the summon by calling the witnesses and not to be an agent of any of the parties.

Section 311 does not allow party to examine or re-examine any witness as it gives the discretion to the court to examine them. If a witness is examined under Section 311 the party whose case is supported by evidence can cross-examine and ask a leading question but if the prosecution case is closed and then court examine prosecution witnesses it is considered as illegal because by doing this the court provides the undue advantage to the prosecution. The court can act in this way when it is a matter of justice and good conscience.

Summoning of witnesses after the defence is closed

Section 165 clearly explains there is no limitation on the power of the court to summon the witness provided the court has a bonafide opinion for the just decision of the case. It is clearly inferred from section 165 that the requirement of giving only the decision of the case cannot limit the power of the court for calling the witness.

Whenever there is any type of formal defect in evidence which was already recorded in court during the proceedings the witnesses may be summoned by the court to remove that defect. The High Court of every state can also direct to take additional evidence in the interest of justice and direction of retrial can also be given only in extraordinary situations. It is also true that magistrates also have discretionary power to call any witness at any time at any stage but it should not be the opinion to give an unfair advantage to any of the party.

Order of production and examination of witnesses

Section 135 of evidence act explains the order in which witnesses should be produced and examined shall be regulated by the law relating to criminal and civil procedure and in absence of any such law, it is the discretionary power of the court. The order of examination involves two things which are as follows:

In the proceedings either criminal or civil which party wants to examine his witness first.
In the proceedings in which order the witnesses are to be examined.

In civil cases, the party who has the burden of proof has the right to begin first to examine his witness and in criminal proceedings, the prosecution has the right to begin first.

It is the lawyer’s advantage to decide the order in which he has to present his witnesses and examined. It comes from the practice and experience of the lawyer which makes him decide the order. Although it is the counsel discretionary power to decide the order but this section gives the power to the court to dictate the order in which witnesses has to be produced.When the council begins to examine the witness the another should be kept out of the courtroom if he is already sitting in the courtroom he has been asked to leave the courtroom.

Judge’s to decide the admissibility of the witnesses

Section 136 of The Indian Evidence Act, 1872 deals with the power of a judge to decide the admissibility of the witnesses. In order that the evidence may not go beyond its proper limits for which it is produced, the judges have the power to ask a question in whatever manner the evidence is relevant. The judges also have to see that the evidence which has been brought on the record must be relevant.

The court must decide at the time when the evidence is produced whether it is admissible or not. He must subject the evidence to objections which ultimately would save his time but the question of admissibility is to be decided when the council have given the opportunity to address the court.

For example, A is accused of receiving stolen property knowing it to have been stolen. It is proposed to prove that he denied the possession of the property. The relevancy of denial depends on the identity of the property. The court has the discretionary power to either require the property to be identified before the denial of possession of the property is proved or permit the denial of the possession to be proved before the property is identified.

Examination in chief

Section 137 in The Indian Evidence Act, 1872 explains the examination in chief. The examination of a witness called by his own party is known as examination in chief. When a witness presents himself before the court, he has to give an oath or affirmation. Generally, his name and how he is related to the case is asked. Then it is the duty of the council to ask about all material facts and to make facts recorded in the court which are necessary to be proved.

The object of examination in chief is to discover the truth, to prove the facts which are in the favour of the party which is calling the witnesses. If there has been no examination in chief of a witness on a particular fact then he cannot be cross-examined on those facts by the opposite counsel. The order of examination in chief is always first during the proceedings in the court on any side either prosecution or defendant. Examination in chief is one of the necessary parts of the judicial proceedings.

Section 138 explains the order of examination that is, all the witnesses first have to be chief examined on both the sides either prosecution or defendant and then cross-examined and then if party desires can be re-examined. The examination in chief and cross-examined should be related to relevant facts.

Cross-examination

Section 139 in The Indian Evidence Act, 1872 explains cross-examination of witnesses of a person to produce documents. A person summoned to produce mere documents is not regarded as a witness until he is related to the case and he cannot be called as a witness. If a person is summoned only to produce a document which is necessary for the case, may appear to the court and present it if he has the possession of it and if he does not have the possession of the document he may inform to the court through an application. There is no provision in the law regarding a person who produces the documents can become a witness.

Cross-examination need not be confined to what has been spoken in examination in chief. The wider scope which is given in cross-examination so that any deviation from the facts can challenge the character, credibility of the witness. Once a party even by mistake enters in the witness box and swears for the oath he is called as a witness and will be subjected to cross-examination by the opponent part

When a fact is stated in chief examination is not cross-questioned in cross-examination it is regarded that the statement is accepted by the opponent party. When the evidence given by a witness appears to be unacceptable and unreliable and not cross-examined it doesn’t mean that it is considered as credible in the court. The court is not at all bound to accept the evidence or facts they have the authority to cross-examine on the behalf of opponent counsel. If no opportunity is given to cross-examine a witness his evidence produced before the court must be excluded.

Leading questions

Section 141 of the Indian Evidence Act, 1872 deals with the leading questions. Leading questions are defined as a question which suggests an answer which the person asking the question wishes to receive. Leading question should not be asked in the chief examination or re-examination. The examples of leading questions have you not lived with him for ten years? Are you not in service of Ram? Have you not lived for ten years with Rahul? In these types of questions, the counsel clearly suggests the answer instead of asking the answer. His intention is not to gain information instead of it he suggests the answer. The answers for the leading questions are generally given in “yes” or “no”

Conclusion

Examination of witnesses is very important for any case whether it belongs to the civil or criminal nature and both the procedural law explain the examination of witnesses. Section 135 to 166 of The Indian Evidence Act, 1872 explains the examination of witnesses in which act covers all the things, like who can first examine the witnesses during the examination of witnesses and what are the relevant facts that are accepted during the examination of witnesses.

It also covers what are the questions asked by an advocate during the cross-examination of witnesses and what questions are not asked during the cross-examination. It also tells the power of judges during the examination of witnesses and at last, gives the provision related to the power of the jury and assessors to ask the question during the examination of witnesses.

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This article is written by Mohd Sarim Khan from Lloyd Law College. This article will discuss the process of the arbitral proceedings and various provisions related to the arbitral process in the Arbitration and Conciliation Act 1996.

Introduction

“Justice Delayed is Justice Denied”

“Justice Hurried is Justice Buried”

The present legal system fails to give speedy and inexpensive relief to a party. There are approximately 2 crore cases pending in the Indian legal system for which we have only 22,000 Judicial Officers. If we stop filing fresh cases today, it will take seven years to clear the backlog of cases. The present legal system of litigation is too expensive and time-consuming. Sometimes the cost exceeds the value of the claim.

The delay is the most disadvantageous part of the litigation. It is a general presumption that it takes 15-20 years to decide a civil case. The delay results in physical, mental, and financial harassment. With the dynamic change of technology, different cases appear in the Court every day which lacks the expertise of a judge.

It has resulted in wrong decisions and consequential appeal to the higher forum. Arbitration emerges as the most suitable option for the parties and such disputes.

What is Arbitration?

It is a method of alternative dispute resolution that emerged to prevent Court litigation and resolve the disputes quickly and amicably. An amicable settlement doesn’t mean compromising at any cost. The arbitration provides an alternative mode of dispute resolution through an arbitrator. It includes a selection of the neutral third person who is an expert in the area of the arbitral issue. All the parties are bound by the rule and the time limits fixed by the arbitrator within which the dispute is to be settled.

Need to commence Arbitration in India

In this competitive world, the delay in resolving the disputes cost a huge loss to the corporation. Parties want to solve their disputes speedily and amicably. The major significance of arbitration is the privacy and confidentiality of the proceeding.

Generally, parties don’t want their disputes to become public and diminish the image of the company. Arbitration is very flexible in time and procedure and arbitration plays after parties’ autonomy.

Types of Arbitration

There are two types of arbitration proceedings:

Institutional Arbitration

Institutional Arbitration is a specialized body with a permanent centre participating and performing the function of aiding and administering in the arbitral process as provided by the rules of the institution. These institutes provide administrative support to the parties. Institutional arbitration just provides the platform for the process. Parties mention in their arbitration clause of the contract whether they want to choose institutional arbitration or ad hoc arbitration.

The issue arises for the parties if they choose institutional arbitration for the disputes. Various factors have to be considered in such a case:

Nature & commercial value of the disputes
Institution Rules
Past record
The reputation of the institution
Fees charged

Some reputed institutions for arbitration:

Indian Council of Arbitration
International Chamber of Commerce
Federation of Indian Chamber of Commerce & Industry
World Intellectual Property Organization

Ad hoc Arbitration

An ad hoc arbitration is one that is not administered by an institution. The parties are required to determine all the aspects of the arbitration such as the number of arbitrators, manner of their appointment, the procedure for appointment, procedure for conducting the arbitration. Ad hoc arbitration is not administered by others. The parties themselves have to make their own arrangement for selection of an arbitrator, designation of rules, the applicability of law, procedure and administrative support. These proceedings are cheaper, flexible and faster than the Institutional arbitration and cost fewer fees.

Domestic and International Arbitration

Domestic arbitration takes place in India. The arbitration is a subject matter of the contract and merits of the disputes are all governed by Indian law and the cause of action arises wholly in India. Both parties are from the domestic country and all the proceeding of the arbitration are performed in their own country or habitually resident, or home country.

International commercial arbitration refers to the arbitral proceeding which takes place either in India or outside the country or when the parties or subject matter of the arbitration belong to a foreign party. The international commercial arbitration has its set of rules on the application of the matter. Various legal systems have their own specific rules for domestic and international arbitration.

Stages of the Arbitral Process

Arbitration Clause or Arbitration Agreement

During the drafting of a contract of construction, insurance, partnership or any civil matter, Parties shall add a clause of arbitration in the contract. In the future, if any disputes arise between the parties they can resolve it through arbitration. But while drafting an arbitration clause in the contract, the lawyer should be very careful to make the clause detailed and ensure that it should contain all the possible disputes which can be raised out of contract or in relation to the contract. If the parties had no arbitration clause in the contract, the parties can make an arbitration agreement with their mutual consent to solve the disputes arising out of the previous contract.

Elements which are required to make the arbitration agreement or arbitration clause effective

Number of Arbitrators

Section 10 of Arbitration and Conciliation Act, 1996 states that:

Parties are free to appoint as many arbitrators as they can but the number of arbitrators shall not be in even number.
If the parties did not decide the number of the arbitrator within 30 days of sending the request, in such a case, they can reach the arbitration tribunal which will appoint a sole arbitrator.

Arbitration Notice

Section 21 of the Arbitration and Conciliation Act, 1996 states the commencement of the arbitration. The dispute begins from the date on which a request for the dispute as referred to arbitration is received by the respondent. From the date of receiving the legal notice to the respondent till the completion of the fixed period given in the notice, parties have to give the reply of the notice.

Appointment of Arbitrators

Appointment of the arbitrator is mutually decided and appointed by the parties. The parties in the arbitration agreement or clause mutually decide and mention the name of the concerned arbitrator who will resolve the dispute. If the parties fail to mutually decide or appoint the arbitrator then in such case, Section 11 of the Arbitration and Conciliation Act, 1996 states that the parties shall move to the Court and request to appoint an arbitrator.

Statement of Claim

Section 23 of the Arbitration and Conciliation Act, 1996 states that with the period of time fixed by the parties, the claimant shall state the facts for supporting his claim, point of issue and relief.

The parties are required to submit their statement of claim by providing all documents supporting the relevant facts of the issues of the arbitration. The claim can be amended if it is agreed by the parties than they can amend the claim during the course of the arbitral proceeding. Or unless the arbitral tribunal considers the claim inappropriate.

Hearing of Parties

Steps involved in the process of hearing of the parties:

Preliminary hearing and information exchange stage

After the appointment and confirmation of the arbitrator, the preliminary hearing of the arbitration begins when the parties call their arbitrator to fix the schedule. In the preliminary meeting, issues are addressed, the exchange of information is done between the parties and the next hearing date is scheduled. On the next date, the arbitrator will issue a written document called a ‘scheduling order.’

Hearing Stage

During the stages, the parties present their case to the arbitrator. This process can take place in person, over the telephone, or by submitting written documents or arbitration agreements and applicable rules that govern the case. Parties are required to submit written arguments after hearing, at the direction of the arbitrator.

Award Stage

After the completion of the hearing, the arbitrator determines no more evidence will be presented. The hearing is closed and a date is fixed for the issuance of the award.

The arbitrator renders a written award and outcome of the case and it is sent to the parties.

Arbitral Award

An arbitration award is a final order given by the arbitrator. This award can be in terms of monetary relief to one party by other parties. It can also be a non-financial award such as adding employment incentives or stopping such business practices.

There are two types of the arbitration award:

Interim award

This is a temporary award given by the tribunal during the course of proceeding. An Interim award can only be made by the tribunal which has the power to grant a final award. Interim orders are often given for the payment of money or the disposition of property between the parties and an order to make an interim payment is on account of the costs of the arbitration.

Final award

The final award is the order or judgement given by the arbitrator after the due process of arbitration. An arbitrator shall state the reason upon the decisions made in the award. After the pronouncing of the final award. it shall be signed by all the arbitrators and the parties. Till the completion of 90 days, other parties have the right to challenge the award in the Court till the party in whose favour the award is given can not enforce the award.

Challenge in Court

The party in whose favour award is given by the arbitrator an award holder will need to wait for a period of 90 days and during this intervening period, other parties have the right to challenge awards.

In accordance with Section 34 of the Arbitration and Conciliation Act, 1996 that states that the Court can set aside the arbitral award if:

The party was under some type of incapacity.
The arbitration contract is not valid under the law to which parties have been subjected to.
The party making the application for invoking the arbitration has not given proper request to the other party for the appointment of the arbitrator.
The award deals with the disputes not falling or comes under the submission of the arbitration or contains matter beyond the scope of arbitration.

Other Essential Elements of Arbitral Process

Seat and Venue

In arbitration, the seat is the legal construct and it is the jurisdiction where the final arbitral award will be made. The seat has a great impact on the legal framework of the arbitration. Each jurisdiction applies their own set of rules for the arbitration that is why parties have to decide the seat of the arbitration diligently. Selection of the seat of arbitration not only determines the law governing the arbitration proceedings but also the rights relating to the enforcement of the arbitration awards.

The venue is the place where parties meet if the arbitration is under the rule of institutional arbitration, it is generally conducted at the place where the institution is located. If it is ad hoc arbitration, the place is gradually changed as decided by the parties. The venue is not the same as the seat of arbitration, it is merely a geographical location of the arbitration proceedings chosen on the basis of convenience. When the agreement is completely silent on the seat and venue, in such situations, it’s a venue which emerges as a crucial factor in deciding the appropriate Court

Cost

The cost of the arbitration proceeding is borne by both the parties. It is well settled that it is against the law that only one party bears the cost solely, thus, plaintiff or respondent have to pay the entire fees, or as decided by both parties mutually.

Limitation to Commencement of Arbitration

Section 43(2) of Arbitration and Conciliation Act, 1996 states that the date on which the cause of arbitration occurred, the period of limitation begins to run for the claimant to invoke the arbitration clause. The needless communication or reminders cannot postpone this accrual of the cause of action nor stop the limitation period to begin, not even if there is no mention of the limitation period in the arbitration clause.

How long do Arbitral Proceedings last?

The Limitation Act, 1963 applies to the Arbitration and Conciliation Act, 1996 unless expressly excluded by the Arbitration and Conciliation Act. Any arbitration proceedings commenced after the period of three years from the date on which the cause of action arose will be time-barred.

The parties have the right to fix their own set of rules for the proceeding of the arbitration. If no such procedure is agreed by the parties, the tribunal is authorized to conduct the proceedings in such manner as it considers appropriate. The tribunal will not apply any provisions of the Civil Procedure Code, 1908 and the Evidence Act, 1872. In the arbitration contract, the arbitration is to be administered by an arbitration institution and setting rules of that institution become a part of the arbitration clause by implication. If the proceeding is in an ad hoc arbitration, such parties have to make their own set of rules for the procedure.

Amendments into the Arbitration and Conciliation Act require to hold oral hearings of the evidence or oral argument on a day-to-day basis and grant no adjournments unless sufficient cause is provided. The tribunal may impose exemplary costs on the party seeking frivolous adjournments or dates.

Diverse opinions of the arbitrator are permitted under the Arbitration and Conciliation Act. The opinion of the arbitrators shall prepare a separate sheet of award or to give their opinion in the same document which contains the award of the majority members of the tribunal. But, this variance opinion or award does not form part of the majority decision and is not enforceable.

Local Courts can intervene in domestic arbitration proceedings which includes the power to issue interim orders, order to present evidence directly to the tribunal and appoint arbitrators.

Enforcement of Arbitral award

After giving the final award of the arbitration, other parties have the right to challenge the award in Court by an application for setting aside such an arbitral award.

The Court can set aside the arbitral award if:

A party may be under some incapability.
The arbitration agreement is not valid under the law to which parties have made the contract.
The party making the application was not given proper notice to the other party on the appointment of the arbitrator.
The arbitral award deals with the terms of submission to arbitration or its decision on the matters beyond the scope of the submission to arbitration.

Domestic award enforcement

On the enforcement and execution of the award given by the tribunal, an award holder shall have to wait for a period of 90 days and during this intervening period, the party has the right to challenge the award in the Court. The challenge of the award shall be in accordance with Section 34 which provides for the procedure for application for setting aside an arbitral award.

Foreign award enforcement

The Foreign arbitration award enforcement must be given in a New York Convention adopted by the United Nations Diplomatic Conference on 10 June 1958 to resolve disputes arising out of a legal relationship. The Geneva Convention and the New York Convention provide that a foreign arbitral agreement must be made in writing and there is no need for it to be in a particular format. The foreign award must be valid and should arise from an enforceable Arbitration Contract. To give effect to an award, an arbitration award must be clear, unbiased and capable of resolving the dispute.

Conclusion

This article concluded that the first and foremost important step in the arbitral process is the arbitration clause which shall be very diligently framed while making the arbitration clause or arbitration agreement. Arbitration supports the party’s autonomy. During the framing of the arbitration clauses, parties have to decide the appointment of the arbitrator, number of arbitrators, rules applicable in the arbitration. After the final arbitration award, it is enforced by the law applicable in such jurisdiction of the arbitration.

References

Bare Act

http://icadr.nic.in/icadr/file.php?123?12:1461580854

Online Sources

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This article has been written by Sushant Biswakarma, a student from Symbiosis Law School, NOIDA. It discusses privileged communications that cannot be compelled to be disclosed while adducing evidence.

Introduction

Evidence is an essential part of a trial as it is used to establish any relevant fact and reach a conclusion. Evidence can be in many forms; witness testimony is one of them. A witness can testify based on any event they have seen or any communication they have heard or been a part of.

However, some conversations do not need to be disclosed, even if required during a trial. Such conversations are known as privileged communications. These communications can be privileged because of personal or professional reasons.

Communications during marriage

The communications between a husband and a wife have been given the status of privileged communication under Section 122 of the Evidence Act. It states that a married person:

Shall not be compelled to disclose any communication made to them during the marriage by their spouse or ex-spouse.
They are not permitted to disclose anything without their spouse’s or ex-spouse’s consent even if they are willing to.

In the case of S.J Choudhary v. The State, the Court held that compelling spouses to disclose their private communications is far worse than not getting any information at all. Therefore, such communications must be privileged.

The idea behind this privilege is that if testimonies are accepted from private communications between spouses, such testimonies have the power to destroy household peace among families and create a domestic broil. It will hamper the mutual trust and confidence between the spouses and weaken the marital bond.

What communication is confidential?

Under this section, it is irrelevant whether the communication was sensitive or confidential in nature or not. Any conversation or communication between a husband and wife is privileged no matter what the means of communicating was. The same was held in the case of Emperor v. Ramachandra.

However, this rule was overruled in the case of Bhalchandra Namdeo Shinde v. the State of Maharashtra, wherein the Court laid down that Section 122 must not have any broad interpretations that expand the scope of this section.

The literal rule of interpretation must be followed if the Court has to interpret it and the scope must be kept limited because it reduces the scope of admissibility of evidence in the

Court, which could be very essential in any case.

The Court further held that communication for the purpose of this Section would refer to only verbal or written words said by a spouse and not their actions.

The wife, in this case, was called in to give testimony against her husband who was being tried for allegedly committing a murder. She was allowed to testify regarding his conduct and actions but not the communication between them.

Also, for the purpose of this Section, the communication must be made only by a spouse during a marriage for it to be privileged. Any communication made before the marriage or after its dissolution will not have this privilege.

In the case of Ram Bharosey v. The State of Uttar Pradesh, the Court laid down that mere doing of an act in the presence of the spouse can not be considered as communication between them. It is not like any domestic act will be considered as communication. Communication must be conveyed in some way; be it verbal, or non verbal.

In the instant case, the wife has seen her husband coming down from the roof and then coming out of the bathroom again with changed clothes. The wife testified regarding the same and the testimony was admissible as the act of the husband was not a communication.

Is this privilege absolute?

The privilege provided under Section 122 is for the welfare of the marital bond shared between spouses and for protecting their families.

However, this privilege is not absolute and information can be disclosed if:

The person who made such communication or their representative gives free consent; or
There is a suit between a married couple; or
One of the spouses has been prosecuted for any crime committed against the other.

In the case of Nawab Howladar v. Emperor, a widow wanted to act as a witness and disclose communications made by her deceased husband.

The Court held that in order to be admissible as evidence – the consent for disclosure must be express and can not be implied. In case there is no representative in interest, it would be impossible to obtain consent and therefore such communication is entirely inadmissible.

A widow is not a representative in the interest of her deceased husband, and hence, cannot give her consent.

Further, the Court clarified that communications between spouses must be confidential only if it had happened during the marriage and not before marriage or after the dissolution of marriage.

Any conversation made before marriage or after its dissolution is not protected by this provision. For example:

Situation 1

Ron and Hermoine are soon to be married;
Ron tells Hermoine how he committed fraud.
Hermoine’s testimony is admissible before the Court as the communication was not made during the marriage.

Situation 2

Harry and Ginny are husband and wife.
Harry tells Ginny about how he diverted funds to his own account.
Ginny’s testimony will be inadmissible as the communication was made during their marriage.

Situation 3

James and Lily have recently been divorced.
Lily tells James about how she stole the gold.
James can testify regarding the same and his testimony will be admissible as the parties were not married during such communication.

Professional Privileges

Communications made between an attorney and his client is a privileged one, and no one can compel either the advocate or his client to disclose anything regarding the same.

Section 126 of the Act says that – a barrister, attorney, pleader or vakil is permitted to disclose any communication made to him by his client during the course and for the purpose of his employment without the consent of his client.

The privilege under this Section is applicable to anyone who is registered as a legal practitioner in India and falls under the aforementioned categories, which simply means an advocate.

In the case of Maneka Gandhi v. Rani Jethmalani, the Court observed that everyone has the right to a fair trial, and for obtaining such right one might need to seek help from an attorney.

People have a hard time trusting their advocates and are often scared of sharing the entire facts with them. They are under constant fear that their advocate might expose them. With the fear of being exposed in mind, they might not be able to express their problems properly and get proper legal advice.

To ensure that advocates cannot expose their clients, the conversations between them have been made privileged under this act.

In order for a conversation to be privileged under this section, the client-attorney relationship must exist when the communication took place. Any communication made with a lawyer before actually appointing him is not protected under this Section.

Similar to Spousal Privileges, this privilege is not absolute. The Act itself states that this privilege does not apply under some conditions. Communication in furtherance of an illegal purpose could be one example of the same.

In order to understand this better, let’s look at some illustrations.

Situation 1

Harry, a client, says to Ron, an attorney – “I have murdered a man and the body is in my freezer. I want your advice on how I should get rid of it”. This communication is made in furtherance of a criminal purpose, it is not protected from disclosure.

Situation 2

Hermoine wants to appoint Draco as her lawyer but Vakalatnama (a document empowering an advocate to represent his client in the Court) has not been signed yet.
She tells Draco about how Tom was brutally killed by her and her friends.
The communication is not protected from disclosure because the client-advocate relationship does not exist as the Vakalatnama has not been signed yet.

Situation 3

Harry, a client, says to Ron, an attorney – “I stole a BMW and sold its parts in the black-market”. This communication is protected from disclosure as the crime is already done and the client-advocate relationship exists between them.

State Privileges

Affairs of the State

Section 123 of The Indian Evidence Act states that no person is allowed to give any evidence that may be derived from any unpublished records of any state affairs.

Unless with the permission of the officer-in-charge or the head officer at the concerned department. Such an officer can give or withhold permissions regarding the same as he thinks fit.

In the case of Duncan v. Cammell Laird & Co. Ltd, it was held that in case such a situation arises, the Court is bound to accept the decision of the public-officer without any questions.

Further, the decision ruling out of such documents is entirely the decision of the Judge. It is the Court who is in charge of a trial and not the executive.

The phrase “Affairs of State” has not been per se described in this section or any other provision in this Act. So, it is not very practical for the judiciary to come up with a single definition of the phrase.

Therefore, the Court must determine whether any documents fall under this category, depending upon the facts and circumstances of every case. However, it is clear that only the Court has the power to decide whether any document can be classified as an ‘unpublished document of state affairs’.

Official Communications

Section 124 of the Evidence Act talks about official communications. It states that a public officer can not be compelled to disclose any communication made to him in official confidence if he believes that such disclosure could harm the public interests.

While Section 123 talks about unpublished documents related to affairs of the state, section 124 restrains the disclosure of all communication made in an official capacity, be it in writing or not and it is immaterial whether they relate to state affairs or not.

In the case of in re. Mantubhai Mehta, it was held that it is upon the Court to determine whether a document is a communication made to a public officer in official confidence and if the document does not deal with any affairs of the State, it may be taken up as evidence.

While determining whether the communication was made in official confidence or not, only primary evidence must be used and the same cannot be determined by secondary evidence, as laid down by the High Court of Madras in Sivasankaram Pillai v. Agali Narayana Rao.

Secret Informants

Section 125 of the Evidence Act states that a Magistrate or a Police Officer can not be compelled to reveal as to how they got any information regarding the commission of a crime.

The section further states that a Revenue Officer can not be compelled to reveal as to how he got any information regarding the commission of any offence against the public revenue.

For example:

Situation 1

Harry is a Police Officer.
Someone told Harry about riots that are being planned to happen later today.
Harry can not be compelled to tell where he received such information.

Situation 2

Ron is a Revenue Officer.
Someone told him that Draco is hiding millions of rupees in black money in his basement.
Ron can not be compelled to tell as to where he received such information.

Conclusion

The intention behind giving such privilege to some communications is to protect the public. Be it regarding the safeguarding of their marriage or preventing government information from getting leaked.

In the absence of this Act, multiple classified information could have been easily leaked in the name of trial and could have compromised the security of the country.

Also, letting a husband or a wife testify against the other would make people lose trust over marital bonds and disrupt peace among families. It would start family broils, that could have the capacity to destroy families.

This Indian Evidence Act, 1872, is a wholesome act and the laws regarding privilege communications are up to par and have been legislated keeping public welfare in mind. There are separate provisions for family issues, professional issues, and issues relating to the state.

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Introduction

Who are Hindus?

Hindu by Religion

Hindu by Birth

The Concept of Marriage under the Hindu Law

Sacramental Nature of Marriage

Characteristics of the Sacramental Nature of a Hindu Marriage

Forms of Marriage under the Hindu Law

Ceremonies to be performed in a Hindu Marriage

Conditions for validity of a Hindu Marriage

Essential elements of Section 5

Condition of monogamy

Bigamy

Conditions regarding mental health or capacity

Condition for marriageable age

Sapinda relationship

Some other essential provisions for a Hindu Marriage

Solemnization of Marriage (Section 7)

Registration of Marriage (Section 8)

Void Marriages (Section 11)

Voidable Marriages (Section 12)

Conclusion

References

Introduction

What is a patent claim?

Types of patent claims

On the basis of Drafting

On the basis of Invention

On the basis of Structure

What are the Advantages and Disadvantages of Patent Claims?

Advantages

Disadvantages

How to draft a patent claim?

Preamble

Linking Word

Criterias to be followed for drafting your claims

Should Be Clear

Should Be Complete

Should Be Supported

How to portray patent claims in a patent draft?

What are the common mistakes that can be faced by you while drafting claims?

Basics of patent claim drafting

How to punctuate a claim

What does an effective claim look like?

Conclusion

References

Introduction

Challenges and Conflict of Interests under Arbitration

Appointment of Arbitrator

Number of Arbitrators

Qualification of Arbitrator

On what grounds appointment of an arbitrator is challenged

Seat and Venue of Arbitration

On what grounds Seat and Venue is challenged

Choosing of Language

On what grounds language is challenged

Arbitrability of Dispute

On what grounds Arbitrability of the dispute is challenged

Arbitral Award

On what grounds Arbitral Award is challenged

If the award (decision) of the arbitration was not satisfied by any parties then, what is the role of the Court?

Public Policy

Limitation period

Re-decision by the Court against the arbitral award

Recent Case laws

Conclusion

References

Introduction

M Siddiq (D) Thr Lrs v. Mahant Suresh Das & Ors

Facts of the Case

Issues raised

Written submission of parties to the case

Judgement

A brief timeline from the occurrence of the dispute to the end of the dispute

Conclusion

Introduction

Types of evidence

Oral Evidence – Section 60

Documentary – Section 3(2)(e)(2)

Primary Evidence – Section 62