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Articles

Critical Note On Residuary Powers

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This article is written by Kritika Soni, a student of National Law Institute University, Bhopal

Introduction

The separation of powers is a key aspect of a federal system of governance in a country. The main goal of establishing a federal state is to create a division of powers between the central government and the individual states. The Indian Constitution divides the various subjects of legislative power between the Parliament and state legislatures into three lists namely the Union List, State List, and the Concurrent List.

With the society continues to progress and horizons of scientific and technical language continue to expand, it is possible that every subject matter under a legislation and within the foreseeable future could not have been contemplated by the Constitution-makers and thus, wasn’t specifically enumerated in one of the three aforementioned lists[1]. A subject of legislation may not clearly fall under any specific entry in the tree lists due to the complexity of modern governmental administration in a federal system that provides for the allocation of legislative authorities along with the ability of judicial scrutiny or review.

The Indian Constitution’s Article 248 read along with Entry 97 of List I in the seventh schedule confers residuary legislative powers on the Parliament. The combined reading of the two points to the conclusion that residuary authority only applies to those subjects that are not covered by the three lists. Article 248 of the Constitution of India talks about how subject to the provisions of Article 246A, the Parliament has the exclusive power to be able to make any law with regards to a matter that has neither been mentioned in the State list nor the Concurrent list, including the power to make a law that imposes a tax not previously mentioned in either of these lists. The judiciary (as the interpreter of the constitution) plays a critical role in determining residuary powers. It has been left up to the courts to decide whether a particular topic fits under the residuary power or not. However, as the three lists attempt a complete enumeration of all potential legislative subjects, courts have traditionally interpreted the realm of the powers to be listed in a liberal manner.

Though regarded a federal necessity, the existence of the residuary provision in a federal constitution is also a recognition of the human imagination’s limitations in visualising future events in their real and concrete forms. This constraint is exemplified by the Indian Constitution, which, despite a precise and meticulous formulation of the functions of the two administrations, nonetheless allows for the residuary clause. In India, the turning over of residual powers to the Centre was necessary since the Constituent Assembly looked forward to a strong, dominant Centre, and the country’s communal partition had left no other option.

The Powers Of The Legislature

The Centre has been given residuary powers in order to strengthen itself. Jawaharlal Nehru, the Chairman of the Union Powers Committee, remarked in the Constituent Assembly how he thought that residuary powers shall always remain with the Central Government. However, some subjects might claim recognition in the future but weren’t then identifiable and therefore couldn’t be included in any of the three lists and so, the residuary subjects could only be related to these matters.

History Of Article 248

The Government of India Act, 1935 established a division of powers between the federal and provincial legislatures by categorising them into three lists: Central, Provincial and Concurrent. Both the central and provincial legislatures had the authority to pass laws on subjects on their own respective lists, and both had the option of passing legislations on any subject stated in the Concurrent list. However, if the federal government has already passed a legislation on any of the topics included in the Concurrent list, a provincial legislature can no longer pass a legislation on the same topic in the future. The residuary power, on the other hand, was not granted to the Centre or the Provinces, but was reserved for the Governor-General to allocate to the Centre or the Provinces at his discretion under Section 105 of the Act.

Though the initial proposal in the Constituent Assembly was for a federal centre with limited powers while residuary powers were to be given to the States, after partition of India took place, it was decided to have a strong centre by allocating the residuary powers to them as one of the steps towards that goal. This decision would have eliminated the necessity for List I to include a detailed list of Union topics as it would have sufficed if the exclusive and concurrent state powers had been mentioned. At the demand of Dr. Ambedkar, who claimed that the States preparing to join the Federation wanted to know more about the Federal powers than a vague description of the Federation having residuary powers, attempts to alter the drafts on this basis were abandoned.

As a result, the Constitution contains a power distribution identical to that found in the Government of India Act, with the exception that the Centre now has residuary powers.

Article 248 Read With Entry 97 Of List I

Through entry 97 of List I of the Seventh Schedule and Article 248 of the Constitution, the residuary authority has been formally vested in the Union as an exclusive head of power. As a result, the ad hoc allocation of residuary power by the Governor-General, as in the Government of India Act, 1935, has been abandoned. The residuary power has been increasingly pressed into service in the resolution of power issues between the Union and the States. Parliament’s residuary powers have been used multiple times since the Constitution’s inception.

The range of residuary powers is quite broad. For example, under entry 3 (List III), Parliament has the power to legislate on preventive detention for the reasons specified therein. Furthermore, under entry 9 (List I), Parliament can legislate with relation to preventative detention on the specific grounds listed under this entry. These two entries, however, do not cover the complete spectrum of preventive detention as they can also legislate on preventive detention for any reason not specified in these two entries, by using its residuary power. As a result, the Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974 [COFEPOSA] was established by the Parliament, allowing for preventative detention in cases of smuggling and foreign exchange racketeering. Entry 36, List I (foreign exchange), and Parliament’s residuary power both support this Act[2].

Taxing Power Under Residuary Authority

In the realm of taxing powers, the residuary powers have been fully utilised. Because taxing powers are clearly listed in the Lists, they cannot be interpreted as supplementary or incidental to any other legislative entry. Again, taxing rights have been granted solely in exclusive fields; no taxing powers have been granted in concurrent fields. These circumstances appear to have prompted the use of residuary power to defend the legality of taxing measures for ages.

  • Gift Tax – On the basis of residuary powers, the Kerala[3] and Madras[4] High Courts upheld the Parliament’s authority to pass the Gift Tax Act, 1958, which imposed a tax on gifts relating to agricultural land. Both these High Courts decided that the ability to impose a tax on gifts of agricultural land under entry 18 of List II could not be considered incidental to the capacity to legislate with respect to land. That power could also not be found in List II, entry 47, which deals with duties connected to agricultural land succession. On similar grounds, the Allahabad High Court held in Shyam Sunder v. Gift Tax Officer[5] that a tax on buildings and land was distinct from a tax on gifts of land, and that legislation relating to a tax on gifts of land and buildings would not fall under entry 49 of List II, namely, tax on land and buildings. The Gift Tax Act was legitimately passed by Parliament under article 248 of the Constitution, as amended by List I entry 97.

In Second Gift Tax Officer, Mangalore v. D. H. Nazareth[6], the Supreme Court upheld the decisions of the aforementioned High Courts. The Act was enacted by Parliament, according to the Supreme Court, and no entry in the Union List or State List specifies such a tax. As a result, Parliament pretended to use its rights under Entry 97 of the Union List, as well as Article 248 of the Constitution. Because there is no other entry that covers the gift tax, Parliament’s residuary powers were used to establish the statute.

  • Sugarcane Tax – Though indirectly, the residuary powers have been used to support the States’ irregular exercise of taxing power. The Supreme Court ruled in Diamond Sugar Mills Limited v. State of Uttar Pradesh[7]that a factory’s premise was not a “local area” within the meaning of List II entry 52. The Uttar Pradesh Sugarcane Cess Act, 1956, which imposed a levy on the entry of sugarcane into a factory’s premises for use, consumption, or sale on the assumption that the factory’s premises were a “local area,” was repealed. The Madhya Pradesh High Court, based on this ruling, invalidated the Madhya Pradesh Sugarcane Regulation of Supply and Purchase Act, 1958, which imposed a similar tax. The Sugarcane Cess (Validation Act) 1961 was passed by the Central Government, which validated the levy of a sugarcane cess under 10 Acts in 7 States, including the Madhya Pradesh Act.

The legitimacy of the central legislation was called into question in the case of Jaora Sugar Mills v. State of M.P[8]. The Supreme Court’s judgement was delivered by Gajendragadker C. J., who held that section 3 of the Central Act did not simply validate the invalid State Acts, because it would not have been competent for Parliament to confer jurisdiction on State Legislatures in that way, but that section 3 of the Central Act had included all States and Notifications in the Central Act at all material times. Under Article 248 read with article 97, Parliament had the competence to levy the cess that had been imposed by the illegal State Acts.

This case demonstrates that the Union can always come to the rescue of the State by asserting residuary powers to uphold unconstitutional State legislation if it so desires. This gives cooperative federalism a whole new meaning.

  • Expenditure Tax – The Expenditure Tax Act of 1957 was affirmed by the Andhra Pradesh High Court because expenditure tax, which was not particularly provided for in any of the entries under List II/III, was inside the ambit or scope of entry 97 of List I[9]. The fact that the expenditure on which the tax was sought to be levied was not necessarily confined to the expenditure actually incurred by the assesses himself, did not render it anything other than an expenditure tax as long as it was a tax on expenditure. The Supreme Court confirmed the legality of the Expenditure Tax Act of 1957 in an appeal, on the basis that it falls under the residuary powers provision[10].
  • Wealth Tax – The legitimacy of the Wealth Tax Act of 1957 was the subject of a number of disputes in various High Courts. In the case of UOI v. H. S. Dhillon[11], a Supreme Court bench of seven judges decided on significant problems regarding the taxing authority of the Parliament and the state legislatures. The issue was whether Section 24 of the Finance Act of, 1969, which changed the requirements of the Wealth Tax Act of 1957 so as to include the capital value of agricultural land in calculating net wealth, was within Parliament’s legislative competence. It was found that the Parliament was competent to enact Section 24 of the Finance Act.

Sarkaria Commission

The Sarkaria Commission on Centre-State Relations, which issued its report in 1988, rejected the idea of vesting residuary powers in the states, despite agreeing with the Supreme Court’s assessment that these powers cannot be interpreted so broadly as to erode state legislatures’ sovereignty. The Commission, on the other hand, agreed with the proposal to move Entry 97 from the Union List to the Concurrent List.

Because the Constitution-makers did not include any entry relating to taxation in the Concurrent List, the Sarkaria Commission recommended that Parliament retain this residuary power of legislation with regards to taxation. This would avoid double taxation, Union-State frictions and time-consuming litigation. The Commission warned that the authority to tax may be used not merely to raise revenue but also to regulate economic activity, and that there could be instances where a state, under the guise of introducing a new taxing issue, legislates in a way that’s harmful to the national interest. However, it supported the transfer of other residuary powers to the Concurrent List because it believed that the States’ exercise of such authority would be subject to the Union supremacy principles built into the Constitution’s framework, particularly Articles 246 and 254.

Landmark Judgements

These are the landmark judgements in addition to the ones already mentioned above:

  • I. C. Golaknath v. State of Punjab[12]– the SC had held that the power of the Parliament to amend the Constitution was derived from Article 248 read along with entry 97 of List I and that Article 368 dealt only with amendment procedure. However, in view of the 24th Amendment of the Indian Constitution and the SC’s decree in Keshavananda Bharti v. State of Kerala[13], article 368 should be held to include both the power and procedure for amendment and there is no case for invoking a residuary power for constitutional amendment.
  • UOI v. H. S. Dhillon[14] – Before this judgement, the judicial view was basically that any recourse to entry 97 (List I), ought to be had only when the impugned legislation did not fall in any of the three Lists. The argument was that residuary authority could not be used if the challenged legislation fell under any of entries under List II. Furthermore, if the challenged legislation came within one of the List I/III entries, the residuary would not be necessary. It was argued that entry 97, List I, was the final resort rather than the initial step in the consideration of such issues. However, the Dhillon case appears to have shifted this viewpoint where the Supreme Court held by a majority that if the subject-matter of the challenged legislation does not fit under any of the entries in List II/III, Parliament can use the residuary authority or combine it with any article in List I.
  • Attorney General for India v. Amratlal Prajivandas[15] – following the Dhillon case, the SC observed that the test to determine the legislative competence of the Parliament was that whenever this competence came into question, one must look to the entries under List II. If the said law is not identical to any of entries in List II, no further inquiry is necessary as Parliament will be competent to enact the said law either by virtue of the entries in List I & III, or by virtue of the residuary power contained in Article 248 read with entry 97, List I.

Conclusion

The residuary powers, which were meant to have a fairly limited extent due to the Constitution’s detailed enumeration of legislative subjects in the three lists, have turned out to be far more expansive. The use of residuary powers to justify gift, wealth, expenditure, and other taxes, in particular, demonstrates that it has given the Union a new dimension. Since the Supreme Court’s landmark ruling in the Dhillon case, a new approach to constitutional interpretation of legislative entry has arisen.

Hereafter there is no need to justify the exercise of Union power on the basis of one or more entries in the Union List. All that’s enough is to show that the power in question does not belong to the State. This logical way of approach to the entries has really rendered the detailed enumeration of powers in List I redundant, though it may still serve some purpose in showing the scope of Union’s residuary powers and for determination of the scope of the specifically enumerated powers in the state and concurrent lists.

[1] Ali Mehdi, Residuary Legislative Powers in India: Retrospect and Prospects (1990)

[2] M. P. Jain, Indian Constitutional Law, 6th ed., (Nagpur: LexisNexis Butterworths Wadhwa, 2010) p. 607

[3] M. T. Joseph v. Gift Tax Officer, AIR 1962 Ker 97

[4] Dandapani v. Additional Gift Tax Officer, AIR 1963 Mad 419

[5] AIR 1967 All 19

[6] AIR 1970 SC 999

[7] AIR 1960 SC 652

[8] AIR 1966 SC 416

[9] Azam Jah v. Expenditure Tax Officer, AIR 1970 AP 86

[10] Azam Jah v. Expenditure Tax Officer, AIR 1972 SC 2319

[11] AIR 1972 SC 1061

[12] AIR 1967 SC 1643

[13] (1973) 4 SCC 225

[14] AIR 1972 SC 1061

[15]AIR 1994 SC 2179

Articles

Writs: Heart and Soul of the Constitution

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This article is written by Ishanvi Jain, a student of Galgotias University, Noida

Background of the Writs

In Wharton’s Law Lexicon, writ has been described as: 

A judicial process by which anyone is summoned as an offender; it is a legal instrument to enforce obedience to the orders and sentences of the courts.

In Black Law’s Dictionary a writ has been stated to mean:

A court’s written order in the name of the state or other competent legal authority, commanding the addressee to do or refrain from doing some specified act.

Writs in India

The High Court in Calcutta came to be established originally as the Supreme Court by a Charter, dated 26th March, 1774. Section 13 of that charter popularly known as Regulating Act. The Constitution of India conferred express powers on the Supreme Court and High Court, the earlier history of these writs, whether in England or in India, now, becomes irrelevant.

Finality conferred on a decision by statute cannot take away the constitutional right given under articles 32, 226, or 227 of the constitution.

Text of Articles 32 & 226

Article 32 reads

Remedies for enforcement of rights conferred by this part —

  1. The right to move the Supreme Court with appropriate proceedings for the enforcement of the rights conferred by this part is guaranteed.
  2. The Supreme Court shall have power to issue directions or orders or writs, including the writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this law.
  3. Without prejudice to the power conferred on the Supreme Court by clauses (1) and (2), parliament may by law empower any court to exercise within the local limits of its jurisdiction all or of any of the powers exercisable by the Supreme Court under clause(2).
  4. The right guaranteed by this article shall not be suspended except as otherwise provided for by this constitution. 

The expressions ‘including’ and ‘in the nature of’ have significantly expanded the jurisdiction of the Supreme court to an unlimited extent, since on strength of its powers conferred by the article, the Supreme Court can issue not only any writ but also any order or direction, in place of or even in addition of the named writs. In addition to Article 32, the Supreme Court has power to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.

Article 226 reads

Power of High Courts to issue certain writs –

  1. Notwithstanding anything in Article 32, every High Court shall have power throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any government within those territories, directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the writs.
  2. Power conferred by clause (1) to issue directions, orders or writs to any government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action wholly or in part arises for the exercise of such power, notwithstanding with that the seat of such government or authority or residence of such person is not within those territories.
  3. Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1).

Habeas Corpus

The object of the writ habeas corpus is to secure release of a person who is illegally restrained of his liberty. The writ is a command addressed to a person, alleged to have another person unlawfully in his custody, require him to bring the body of such person before the court. The writ is primarily designed to give a person restrained from his liberty, a speedy and effective remedy for having the legality of his detention enquired into and determined, and if the detention is found to be unlawful, having himself discharged and freed from such restraint.

The celebrated writ of habeas corpus has been defined as “a great constitutional privilege” or “the first security of civil liberty”. The writ provides a prompt and effective remedy against illegal detention. By this writ court directs the person or authority, who has detained another person, to bring the body of the prisoner before the court so as to enable the court to decide the validity, jurisdiction or justification for such detention. The principal aim of the writ is to ensure swift judicial review of alleged unlawful detention on liberty or freedom of the prisoner.

Habeas corpus can examine the even the torture of person in legal custody

In India as in America the broader horizons of habeas corpus spread out, beyond the orbit of release from illegal custody, into every trauma and torture on persons in illegal custody because if cruelty is contrary to law, it degrades human dignity or defiles his personhood to a degree that violates articles 21, 14, 19 of the constitution. Therefore a jail convict, alleging subjection to prison injustice can also apply for habeas corpus, and in such a case, detention can be issued for holding a thorough injury into the allegations made for ascertaining the extent of compliance with directions issued as in Sunil Batra v Delhi Administration. In this case the petitioner in question, Sunil Batra was a convict serving a death sentence at the Tihar Central jail. He wrote a letter to a judge of the Supreme Court entailing the poor living conditions and questionable treatment of inmates at the jail. In his letter, he also complained of the brutal assault and torture by Head Warden Maggar Singh of another prisoner, Prem Chand as a ploy to extract money from the victim’s visiting relatives. This letter was converted into a habeas corpus proceeding and by that extension treated as Public Interest Litigation under the ambit of Article 32 of the constitution by the Supreme court. Following this, the court issued a notice to the state and the concerned officials.

It also appointed Dr. YS chital and Shri Mukul Mudgal as amicus curiae and authorized them to visit the prison, meet the prisoner, check the requisite documents and also interview the necessary witness so as to ensure that they were as well informed as possible about the relevant details, surrounding the circumstances and chain of events pertaining the case.

The amicus curiae after paying a visit to the prison and examining the witness reported and also confirmed that the prisoner had sustained serious anal injury. They reported that in the process of torturing the said prisoner a rod has been driven into his anus. The prisoner suffered from continuous bleeding as a result of this, due to the bleeding not ceasing, he was removed to the jail hospital and later transferred to Irvin Hospital. It was also reported that the prisoner’s explanation for the anal rupture was the failure to fulfill the demands of the warden for money, furthermore, attempts were made by departmental officers to cover up the crime by overawing the prisoner and the jail doctor. Officials also offered excuses claiming that the injuries were self inflicted and due to piles.

A writ of habeas corpus may be prayed for in case of actual detention or imprisonment of a person if it’s illegal or unconstitutional. Bur if a person is not actually detained, obviously a writ of habeas corpus would not lie. A question, however, may arise whether in such an eventuality, no remedy at all is available to an aggrieved person against whom an order of detention has been made and such order is still to be executed. In the proceedings of habeas corpus, the court shall have regard to legality or illegality of the detention at the time of filing of return and not with reference to initiation of habeas corpus proceedings. 

Certiorari 

The writ of certiorari issues out of the High Court, and is directed to the judge or officer of an inferior tribunal to bring proceedings in a cause or matter pending before the tribunal into the High court to be dealt with, in order to ensure that the applicant for the order may have the more sure and speedy justice. It may be had in either civil or criminal proceedings. The object of the writ, particularly in civil proceedings, is to give relief from some inconvenience or error supposed, in the particular case. To arise from a matter being disposed of before inferior court less capable than the High Court of rending complete and effectual justice.

The object of certiorari is to correct excess of jurisdiction. The power is exercised by the High Court by the virtue of its extraordinary jurisdiction where the act complained of is a judicial or quasi-judicial act. Where there is an adequate remedy, a writ of certiorari will not lie and the remedy should be equally beneficial and speedy and not merely one which at some further time will bring relief. A writ of certiorari is invoked before a trial is completed to secure a fairer trial then can be obtained before an inferior court or to prevent an excess of jurisdiction after trial. It is in fact to quash an order which has been made without jurisdiction or in defiance of the rules of natural justice.

A writ of certiorari cannot be issue to coordinate courts and fortiori to superior courts. A High court  cannot issue a writ to another high court, nor can one bench of High court issue a writ to different bench of the same High Court, much less to the Supreme Court. Neither a smaller bench nor a larger bench of Supreme Court can issue a writ under article 32 of the constitution to any other bench of Supreme Court.

Since, the benches of Supreme Court are not subordinate to larger benches thereof, a certiorari is not admissible for quashing the order made on the judicial side of the court. In Prem Chand Garg v Excise Commissioner, the fact that a judicial order was being made the subject-matter of a petition under article 32 was noticed and whether such a proceeding was tenable was not considered. But the matter was raised before nine judge bench in Naresh Sridhar Mirjakar v State of Maharashtra’s case, it was concluded that judicial proceedings in the Supreme Court are not subject to writ jurisdiction.

Mandamus 

The writ of mandamus is a high prerogative writ of a most extensive remedial nature and is in form, a command issuing from the High Court of Justice, directed to any person, corporation, or inferior court, requiring him or them to do some particular thing, therein specified which appertains to his or their office and is in nature of a public duty.

Mandamus has been broadly defined as a writ issuing from a court of competent jurisdiction, directed to a person, officer, corporation, or inferior court commanding the performance of a particular duty which results from the official station of the one to whom it is directed or form operation of law, or as a writ commanding the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station.

The court cannot issue a general writ of mandamus, regardless of the specific fact situations, directing that police can enter places of worship whenever criminals are suspected to have taken shelter therein.

It is process to compel to someone to perform some duty which the law imposes to him, and the writ may prohibit the doing of the thing as well as command it to be done. The name ‘mandate’ is sometimes substituted for ‘mandamus’ as to formal title of writ.

For the purpose of deciding the dispute raised by the petitioner in a petition under article 226 of the constitution praying for the issue of a writ of mandamus against his superior government officer, the High court is a civil court within the meaning of section 479A, CrPC and a court within the meaning of section 195 of the code.

Mandamus has been dominated a hard and fast writ, an unreasonable writ, a cast iron writ, the right arm of the court, the exponent of judicial power; and inflexible preemptory command to do a particular thing therein specified without condition, limitation or terms of any kind; one of the highest writs known to the law. It is an extraordinary writ because it is limited by conditions that are not applicable to an ordinary suit at law. It is reserved for extraordinary emergencies, being a supplementary means of obtaining substantial justice where there is clear legal right and no other adequate legal remedy.

Prohibition 

Prohibition is a noun derived from the transitive verb to prohibit, which literally means to forbid, to enjoin indirect and its derivative, that is, prohibition, which would stand for the act of prohibiting by or as if by authority, or a declaration, or injunction, forbidding an action, or an order to restrain or stop, enforcing against.

A writ of prohibition like a writ of certiorari is in the main issued for the purpose of restraining inferior courts or authorities exercising judicial or quasi-judicial functions from exceeding their jurisdiction. The fundamental difference between these two writs is that they are issue at different stages of the proceedings. When an inferior court or a quasi-judicial tribunal assumes jurisdiction to try or inquire into mater over which it has no jurisdiction, the aggrieved person can move the High Court for a writ of prohibition and if he succeeds, an order will issue from the High Court forbidding the inferior court or tribunal from continuing the proceedings.

The jurisdiction by prohibition is primarily supervisory, having for its objects the confinement of courts of peculiar, limited or inferior jurisdiction within their bounds; to prevent them from encroaching upon the jurisdiction of other Tribunals; to restrain the from exercising jurisdiction where they do not properly process jurisdiction at all, or else prevent them from exceeding their limits in matters of which they have cognizance.

A court can issue writ of prohibition for a limited purpose such as prohibiting the tribunal from looking into the particular paper recording recommendations or relying upon particular piece of evidence. As the law stands with regard to writ of prohibition no such relief can be granted. Either the tribunal has jurisdiction or it has no jurisdiction. If it has jurisdiction a writ of prohibition cannot be issued to it not to look into a particular paper or not to rely upon a particular piece of evidence. A writ of prohibition commands the court or tribunal to whom it is issued to refrain from doing something which it is about to do. It prevents a tribunal possessing judicial or quasi-judicial powers from assuming or threatening to assume jurisdiction which it does not possess.

A writ of prohibition is issued only when patent lack of jurisdiction is made out. It is true that a High Court acting under article 226 of the constitution is not bound by the technical rules applying to the issuance of a prerogative writ like certiorari, prohibition, and mandamus in the United Kingdom, yet the basic principles and norms applying to the said writs must be kept in view, as observed by the Supreme Court in TC Bassappa v T Nagpal.

Quo Warranto

Quo stands for what; warranto stands for warrant or authority. Quo warranto is the name of writ by which government commences an action to recover an office or franchise from the person or corporation possessing it. The warrant commands the sheriff to summon the defendant to appear before the court to which it is returnable, to show by what authority he claims the office or franchise. It is the remedy or proceeding whereby the state enquires into the legality of the claim which a party asserts to an office or franchise, and to oust him from its enjoyment if the claim be not well founded, or to have the same declared forfeited, and to recover it, if having once been rightfully possessed and enjoyed, it has become forfeited for misuse or non user.

The purpose of this writ was not to safeguard the rights of aggrieved persons but to curb the pretension of the feudal lords and extend the authority of the King. Mandamus was the command issuing in the King’s name from the court of King’s Bench and directed to any person, corporation or inferior court of judicature, within the King’s dominions; requiring them to do some particular thing therein specified which appertains to their office or duty certiorari. 

The quo warranto proceedings affords a judicial inquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty. If the enquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ quo warranto ousts the usurper from the office. The procedure for quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointment to public offices against the relevant statutory provisions.

It also protects citizen from being deprived of public office to which he may have right. If these proceedings are adopted subject to conditions recognized in that behalf, they tend to protect the public from usurpers of public office. In some case, persons not entitled to public office may be allowed to occupy them to continue to hold them as a result of the convenience of the executive or with its active help. In such cases if the jurisdiction of courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post is allowed to occupy it. Before a citizen can claim a writ of quo warranto, he must satisfy the court inter alia that the office in question Is a public office, and is held by the usurper without legal authority, and that necessarily leads to an inquiry as to whether the appointment of the said alleged usurper has been made in accordance with law.

Conclusion 

Thus it is clear that vast powers are vested with the Judiciary to control an administrative action when it infringes fundamental rights of the citizens or when it goes beyond the spirit of Grundnorm of our country i.e Constitution of India. It ensures the Rule of Law and proper check and balances between the three organs of our democratic system. The philosophy of writs is well synchronized in our Constitutional provisions to ensure that rights of citizens are not suppressed by an arbitrary administrative or Judicial action. the Supreme Court and the High Court have admitted the letters, postcards, telegrams, and even newspaper items as writ petitions under Article 32 and 226 respectively of Indian Constitution. These petitions provide extraordinary judicial relief to the person whose rights are being infringed by any judicial or quasi- judicial order. PIL has an important role to play in the justice system; it affords a ladder to justice to the disadvantaged sections of the society, some of which might not even be well-informed about their rights. 

Suggestions/Scope

Clause(2) of article 32 has though empowered the parliament to confer the power to issue any of these writs also on any other court, but no such laws has yet been enacted, and the writ jurisdiction is exercisable by Supreme Court and by High Court only.

The words ‘orders’ or ‘directions’ added to word writ are only by way of abundant precaution, because both the words ‘orders’ and ‘writs’ are only synonyms of the word ‘command’ delivered by a court or a judge. The word order itself stands for the mandate or determination of court upon some subsidiary or collateral matter arising in an action, not disposing of the merits, but adjudicating a preliminary point or directing some step in the proceedings. 

Be it a writ, order or direction, all the three terms, in whatever sophisticated terms they may have been couched, convey the meaning of an authoritative communication requiring a person or authority to do or abstain from doing something, or to proceed in a specified course for doing the specified thing.

Articles

Unequal Position Of Women – Different Personal Laws & Directive Principles Of State Policy

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This article is written by Kritika Soni, a student of National Law Institute University, Bhopal

Introduction

Since the ancient times, Indian society has been patriarchal, with women always having less rights than men. In personal laws, women face a similar situation. These laws favour men more than women. India is a secular country with people practicing various faiths and religions. There religions govern specific personal rules that apply to distinct sects. In India, different religions such as Hinduism, Sikhism, Islam, Jainism, Buddhism, Jews, and Christians follow different personal laws. Because the Buddhists, Jains and Sikhs don’t have their own personal laws, they follow the Hindu Personal Law.

Both men and women are equal, and both play an important role in the formation and development of their families, as well as society as a whole. Indeed, one of the key issues of the global as well as national women’s movement, has been the fight for equality in the legal sphere. Women have always been regarded an oppressed segment of society in India, and they have been ignored for ages.

Status Of Women Under The Different Personal Laws

There are numerous personal laws in India. The applicability of these rules is generally determined by the religion practised by various cultures. The only common feature of all these different personal laws is that, they are prejudiced towards women and shows favouritism to men.

  • Marriage

In every way, ancient Hindu law discriminated against women. The laws governing marriage did not apply equally to men and women. In the Vedas, the nature of Hindu marriage is described. A Hindu marriage, according to the Vedas, is an indissoluble union that lasts for eternity. It is indissoluble in the sense that the woman cannot have another spouse, no matter how harsh, demented or cruel their spouse is. A Hindu has the right to marry under the Hindu Marriage Act of 1955, while a Muslim has the right to marry under Muslim Personal Law. Marriage ceremonies in Hinduism are deemed to be complete only when all of the usual rites and rituals have been done. While Christian, Hindu, and Parsi marriages are considered sacraments, Muslim marriage is considered as a simple civil transaction rather than a sacrament, where there is absolutely no requirement for any sort of religious ceremonies.

Bigamy is illegal under Hindu law, according to Section 494 of the Indian Penal Code, although a man can marry up to 4 wives under the Muslim law. Unlike other religions, Islam promotes marriage strongly. Celibacy, like that of Roman Catholic priests and nuns, has no place in Islam. “There is no celibacy in Islam,” the Prophet remarked. In Muslim law, the wife is entitled to receive a quantity of money or other property equivalent to Mehr from her husband at the moment of marriage or at any time thereafter. Mehr is a duty put on the husband as a symbol of respect to the wife under Muslim Law, whereas the Dahej pratha or the dowry system is one of the most important practises in Indian marriages under Hindu Law, despite being illegal.

  • Divorce

The grounds for divorce in Hindu Law are (i) if the husband is found guilty of rape or sodomy (ii) if the husband has married another women while already being married to his first wife, who’s alive (iii) if the girl was not of 15 years when she was married and ends up renouncing the marriage before she turns 18 (iv) if there has been no consummation for a whole year from the date of the order for maintenance under CPC or Hindu Adoption and Maintenance Act has passed against husband.

The grounds for divorce in Muslim Law are (i) failure of husband to provide for wife for at least a period of 2 years (ii) if the husband isn’t meeting the responsibilities of marriage properly (iii) if husband’s been detained for 7 years or more (iv) if the husband has indulged in acts of cruelty.

Polygamy is a sufficient ground for divorce in Hindu law but not in Muslim law, whereby a man can marry any number of wives less than 4 but a woman can only marry one man. Under Muslim law, the position of women is far worse than what it is under the Hindu law as they face more discrimination and more restrictions in seeking divorce.

Christian women could not get a divorce only on their husband’s infidelity; it has to be accompanied with either cruelty, bestiality or sodomy. Christian husbands, on the other hand, might simply declare their wives to be adulteresses and divorce them. These outdated regulations were enacted during the colonial period to protect the interests of British bureaucrats who had lawfully married wives in England but were maintaining relations with a local. It was only last year that the government approved a plan to alter the archaic Christian Divorce Act 1869, owing to pressure from Christian women.

  • Maintenance

A Hindu woman has more rights than a Muslim woman, according to the provisions of personal laws. The Hindu wife is entitled to give the maintenance amount after divorce from her spouse till she or he dies, according to Sec-18 (1) of the Hindu Adoption and Maintenance Act, 1956. Also, according to Section 125 of the CPC, only a Hindu wife can divorce or be divorced by her husband and the woman is only entitled to receive maintenance on the ground of her not having married another man.

While a divorced woman in Muslim law does not have the ability to seek maintenance after the iddat period and is only entitled to the mehr, the Muslim Women Protection of Rights on Divorce Act of 1986 came into effect, protecting Muslim women’s rights. Women who are unable to support themselves can seek relief from the courts under Section 125 of the CPC.

  • Inheritance

Because India lacks a uniform civil code, the legislation governing inheritance and property distribution varies depending on one’s religious beliefs. The Hindu Succession Act of 2005 and the Indian Succession Act of 1925 are two key statutes that govern property distribution.

Equal status was granted solely to daughters whose dads were alive when Section 6 of the Hindu Succession Act was amended on September 9, 2005. The Supreme Court, however, declared in Vineeta Sharma vs Rakesh Sharma[1] that daughters whose dad died intestate before the modification date have equal rights to the property. By birth, the daughter enjoys an equal part of the father’s property, according to the Supreme Court. Women from all walks of life applaud the decision, since it removes one of the most significant roadblocks to the gender equality movement.

Directive Principles Of State Policy

In the Indian Constitution’s Preamble, Fundamental Rights, Fundamental Duties, and Directive Principles, the principle of gender equality is incorporated. The Constitution not only guarantees women’s equality, but also authorises the government to take affirmative discrimination measures in their favour. In 1993, India also ratified the CEDAW.

The goal of the DPSP is to establish a “Welfare State.” In other words, the inclusion of DPSP is motivated by the goal of developing social and economic democracy in the state, not political democracy. These are some essential ideas, instructions, or directions for the government to follow when drafting and enforcing the country’s laws and regulations.

Article 39 of the Directive Principles of State Policy includes objectives that are to be secured by the State while making its policies and a couple of these relate to gender as well:

  • All citizens, whether men or women, should have a right to a means of livelihood.
  • Article 39 (d) – No gender discrimination shall exist and there shall be equal pay for women as well as man for equal amount of work done. For all sectors of the economy, India currently lacks a comprehensive and transparent wage strategy. Gender equality is the aim, while gender neutrality and gender equity are practises and ways of thinking that aid in that objective’s achievement.
  • Article 39 (e) – The state must ensure that the health and strength of women workers are not abused, and that they are not dragged by economic necessity into occupations that are inappropriate to their strength, as well as that the health and strength of children under the age of 18 are similarly protected. They should not be pushed to work in inhumane and dangerous circumstances.

Article 42 talks about Securing just & humane work, along with maternity relief and how the state should create certain provisions to make sure that along with the citizens getting easy and humane conditions to work in, the women especially shall be provided maternity relief as well.

Article 44 under DPSPs talks about a Uniform Civil Code in India to make sure that equality between all its citizens can be achieved in its truest sense. Gender justice refers to women’s social, political, and economic equality. It alludes to the end of the patriarchal structure that has pervaded the institution. In the Indian socio-legal context, the implementation of a unified civil code and the question of gender justice are inextricably linked. Women’s empowerment is critical in areas such as social standing, gender bias, health, security, and empowerment. Article 44 requires the state to establish a Uniform Civil Code for all Indian nationals. In India, there is no one civil code, although there is a uniform criminal code. Criminal law applies equally to all citizens, regardless of their religious identity. However, there is no uniformity in civil law, notably in the area of personal law. “The state shall not discriminate against any person solely on the basis of religion, race, caste, sex, place of birth, or any of them,” states Article 15(1) of the Indian Constitution.

This concept of DPSP serves as a model for India’s legislators and administrators, who use it to make policies and laws. They indicate India’s leaders the road that would lead the country to the constitution’s ideal of “justice, social, economic, and political” as enshrined in the Preamble.

Landmark Judgements

  • Randhir Singh v. Union of India[2]

By executing a clause that comes into the category of D.P.S.P. (which are not enforceable), the court not only enlarged the scope of its powers, but also constitutionalized the right to “equal compensation for equal work” (mentioned under Article 39-d). It was determined that it applied to both males and women. The act of establishing a wage scale was deemed null and void because of being based on an unreasonable classification. In furtherance of Articles 14 and 16 in light of the Preamble and Article 39(d), the court stated that the principle of equal pay for equal work is deducible from those Articles and may be properly applied to cases of unequal pay scales based on no classification or irrational classification, even if those drawing the different pay scales do identical work under the same employer. This judgement proved to be a turning point in the history of Indian judiciary.

  • Shayara Bano v. Union of India[3]

A five-judge Supreme Court ruled that the inhumane Islamic practise of Talaq-e-biddat, in which husbands could irreversibly divorce their spouses by saying the word “talaq” three times, was unconstitutional. This practise was demeaning to women’s dignity and equality, as it violated our Constitution’s Articles 14, 12, 21, and 25. CJI Khehar believes that no practise can be justified only on the basis of its lengthy history, and that adequate law prohibiting it must be enacted immediately. Because of its subtle suggestion of religious doctrine ubiquitous across numerous religions, this landmark verdict bolstered the push for gender equality.

  • Vineeta Sharma v. Rakesh Sharma[4]

In Vineeta v. Rakesh, the Supreme Court made history by ruling that the Hindu Succession (Amendment) Act, 2005 will apply retroactively. The Amendment changed Section 6 of the Act to reflect the Constitution’s gender equality concept. According to the amendment, the coparcener’s daughter, like the boy, becomes a coparcener in her own right at birth. The decision was written by Arun Mishra, J, and stated that because a son’s right to be a coparcener is by birth, so is a daughter’s right to claim her share in the coparcenary property after the 2005 Amendment, and even if the father was not alive on September 9, 2005, it does not prevent a daughter from claiming her share in the coparcenary property. The Supreme Court’s earlier decisions in Prakash v. Phulavati[5] and Mangammal v. T.B. Raju[6], which had held otherwise, were overruled by this decision. In this way, the Vineeta Sharma decision reaffirmed the law’s equitable treatment of sons and daughters for succession purposes.

Conclusion

For millennia, women have been exploited. They have been denied an equal footing in society. Women in this period desire to be treated equally to males. Women will only be able to exercise their human rights in letter and spirit if personal laws are unified in the shape of a single civil code containing fair, just, and non-discriminatory provisions. The development of a standard civil code would go a long way toward enhancing women’s rights in India.

Women’s rights have been one of the most disregarded ideas throughout history, as seen by world history. In almost every sector of life, nearly half of the world’s population has been denied equality. This comment proves that equality without gender justice isn’t really equality at all. In the courts, individual women from various cultures have challenged the constitutional legality of discriminatory provisions of personal laws. Even though they deal with concerns like adultery, bigamy, polygamy, and divorce, their main worry is the prospect of forced marriage, homicidal attacks in situations of inter-caste, inter-class, and inter-religious marriages, and property disputes. All of this contributes to the reality of how unequal women really are and how their rights are neglected when it comes to personal laws.

[1] (2020) 9 SCC 1

[2] AIR 1997 SC 3021

[3] AIR 1985 SC 945

[4] (2020) 9 SCC 1

[5] (2016) 2 SCC 36

[6] (2018) 15 SCC 662

Check Out LAW MENTOR For Case Summary

Articles

Environment Protection through Public Interest Litigation

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This article is written by Ishanvi Jain, a student of Galgotias University, Noida

Introduction 

The expression litigation means a legal action including all proceedings therein, initiated in the court of law with the purpose of enforcing a right or seeking a remedy. Therefore, lexically the expression ‘PIL’ means a legal action started in court of law for the enforcement of public interest or general interest in which the public or class of the community have pecuniary(relating to money) interest or some interest by which their legal rights or liabilities are affected.

In the subsequent Para of said judgment, it was observed as follows:

It is thus clear that only a person acting bona fide and having sufficient interest in the proceeding of PIL will alone have a locus standi and can approach the court to wipe out the tears of the needy, suffering from violation of their fundamental rights, but not a person gain or private profit or political motive or any oblique consideration. Similarly, a vexatious petition under the color of PIL brought before the courtfor vindicating any personal grievance, deserves rejection at threshold.

Public Interest Litigation or PIL as it is more commonly known entered the Indian Judicial process in 1970. It will not be incorrect to say that it is primarily the judges who have innovated this type of litigation as there was a dire need for it. At that stage, it was intended to vindicate public interest where fundamental and other rights of the people who were poor, ignorant or in socially or economically disadvantageous position and were unable to seek legal redress were required to be espoused. PIL was not meant to be adversarial in nature and was to be a co-operative and collaborative effort of the parties and the court so as to secure justice for the poor and the weaker sections of the community who were not in the position to protect their own interest. Public Interest Litigation was intended to mean nothing more than what the words themselves said, namely, ‘litigation in the interest of the public’.

While PIL was initially invoked mostly in cases connected with the relief to the people and the weaker sections of the society and in areas where there was violation of human rights under Article 21 of the constitution, but with the passage of time, petitions have been entertained in other spheres and the extent of the jurisdiction.

Public Interest Litigation is a strategic arm of legal aid movement intended to bring justice within the reach of the poor masses, who constitute the low visibility area of humanity, and is totally different kind of litigation from the ordinary traditional litigation which is essentially of an adversarial character where there is dispute between two litigating parties, one making a claim or seeking relief against the other and that opposing such claim or resisting such relief. Public Interest Litigation is brought before the court not for the purpose of enforcing the right of one individual against another as happens in ordinary litigation, but it is extended to promote and vindicate public interest which demands that violation of constitutional or legal rights of large number of people who are poor, ignorant or in socially or economically disadvantaged position should not go unnoticed.

It is now observed that the problems of poor are now coming to the forefront and the entire theatre of law is changing. These observations marked as an exception to the traditional rule of locus standi.

Exception to the traditional rule of locus standi

The traditional rule regarding the locus standiis that judicial redress is available only to the person who has suffered the legal injury by reason of violation of his legal right or legally protected interest by the impugned action of the state or a public authority or any other person or who is likely to suffer a legal injury by reason of threatened violation his legal right or legally protected interest by any such action. The basis of entitlement of judicial redress is personal injury to property, body or mind or reputation arising from violation, actual, threatened, of the legal right or legally protected interest of the person seeking such redress. This is a rule of ancient vintage and it arose during an era when private law dominated the legal scene and public law had not been evolved.

Environment and Ecology

A PIL can be filed with respect to the Environmental degradation under the following circumstances:

  • Causing Environmental Pollution in any form which is likely to cause harm to the public.
  • Causing violation of the basic Human rights of the poor by disregarding them. For e.g. if a farming land has been taken away from a farmer and not being paid proper compensation for the same.
  • Default in duty by the municipal corporations or the panchayats like not taking proper care of the water and sanitation facilities in the locality.
  • If there is a conflict between the religious rights and the environmental issue arises due to the same. For e.g. use of loudspeakers in the temples or mosque creating noise pollution.

In M.C Mehta V Union of India, directions were given for creation of environmental awareness amongst the students through education. In M.C Mehta V Kamal Nath, the Supreme Court recognized and approved the principal of ‘polluter pays’ but distinguished it from imposition of fine, observing that pollution is a civil wrong, and a tort and the Supreme Court even in a PIL can award damages, though the consideration for which ‘fine’ can be imposed upon a person on conviction for committing an offence are different from those on basis of which exemplary damages can be awarded. If an industry is established without obtaining the requisite permission and clearance and if industry is continued to be run in blatant disregard of law to the detriment of life and liberty of the citizens living in the vicinity, the Supreme Court has power to intervene and protect the fundamental right to life and liberty of citizens.

Interim decisions were given regard to limestone quarrying in Dehradun in Kalpa Vriksha V Chhatargun Gujral and in rival litigation and environment Kendra V State of UP, it was directed that quarrying operations in the area should generally be stopped and mining activity in the area should be permitted only to the extent it was necessary in the defense production and to safeguard the foreign exchange position.

In MC Mehta V Union of India Union Government was directed to release funds for protection of plants in pursuance of the Taj Report submitted by Krishna Mahajan Committee.

Constitutional Provisions

Under Article 21of Indian Constitution, we have a right to live and breathe in a safe and non-polluted environment in factpart iv of our constitution contains directive principles which states that it is the duty of the state to protect the environment.Our constitution has given various right to us but in case of their infringement,most of us are unable to exercise the remedies available to us since the procedure to avail those remedies is out of our reach and quite expensive and complicated.therefore, Supreme Court thus expanded and liberalized the rule of ‘Locus Standi’. As a result of this expansion, all the social activists, NGO’s, lawyers, public spirited citizens, etc. are now entitledto file a writ on behalfof the person whose right has been infringed. In addition to this, a court is also entitled to take suomoto cognizance of matters involving the abuse of environment, prisoners, bondedlaborers and inmates of mental institutions, through letters addressed to sitting judges. Supreme Court started Public Interest Litigation (litigation filed in a court of law, for the protection of “Public Interest”) to safeguard us against such infringement and entitle every citizen to file a petition for punishing such offender, the Supreme Court of India has played an active role in dropping the increase of pollution levels through PIL. PIL has proved to be an effective tool for the society. There are many cases where Supreme Court has issued various guidelines and directions for the protection of environment. Some of the leading cases are:

Important Landmark Judgements

  • Sanitation in Ratlam: In a landmark judgment in 1980, the Supreme Court explicitly recognized the impact of a deteriorating urban environment on the poor. It linked basic public health facilities to human rights and compelled the municipality to provide proper sanitation and drainage.
  • Gas leak in Shriram Factory: In the historic case of the oleum gas leak from the Shriram Food and Fertilizer factory in Delhi, in 1986, the Supreme Court ordered the management to pay compensation to the victims of the gas leak. The “absolute liability” of a hazardous chemical manufacturer to give compensation to all those affected by an accident was introduced in this case and it was the first-time compensation was paid to victims.
  • Construction in Silent Valley: In 1980, the Kerala High Court threw out a writ filed by the Society for the Protection of the Silent Valley seeking a ban on construction of a hydro-electric project in the valley. However, despite an unfavourable judgment, active lobbying and grassroots action by environmentalists stopped the project.
  • Against vehicular pollution in India the Supreme Court delivered a landmark judgment in 1992. A retired Judge of the Supreme Court was appointed along with three members to recommend measures for the nationwide control of vehicular pollution. Orders for providing Lead free petrol in the country and for the use of natural gas and other mode of fuels for use in the vehicles in India have been passed and carried out. Lead-free petrol had been introduced in the four metropolitan cities from April 1995; all new cars registered from April 1995 onwards have been fitted with catalytic convertors; COG outlets have been set up to provide CNG as a clean fuel in Delhi and other cities in India apart from Euro 2 norms. As a result of this case, Delhi has become the first city in the world to have complete public transportation running on CNG.

Conclusion 

Public Interest Litigation has been used by the Courts as an effective tool in dealing with cases involving Environmental issues. The courts must ensure that the use of PIL for private interests should not be entertained because it defeats the very purpose of this concept. Serving the public at large is the most important characteristic of PILs.

Also, it is the duty of every citizen to take care of the environment and have compassion towards living creatures according to Article-51(g) of the Constitution of India. PIL under Article-32 and Article-226 must be invoked whenever there is any breach of duty.

Ultimately, it is the court who decides whether a case requires a hearing or how much graver is the offence. But, PIL plays a major role in delivering justice not only to the one who is involved in the case but to the community at large protecting the cumulative rights of all.

Articles

Appeal from Original Decree under Order 41 of CPC

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This article is written by Sreeya Chowdary Kesanapalli, a student of Gitam School of Law, Visakhapatnam

Introduction

Decree is Defined u/s 2(2) of Civil Procedure Code, 1908. It means the formal expression of an adjudication which conclusively determines the rights of the parties concerning all or any of the matter in controversy in the suit. A decree may be either preliminary or final.

Essentials Elements Of A Decree

The decree is a decision of the court. For any decision of the court to be a decree, the following essential elements are required:

  1. There must be adjudication.
  2. The adjudication should be done in a suit.
  3. It must determine the rights of parties regarding the matter in dispute.
  4. The determination of the right should be conclusive.
  5. There must be a formal expression of such adjudication.

Section 96 Of Code Of Civil Procedure 1908 “Appeal From Original Decree” 

(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction the Court authorized to hear appeals from the decisions of such Court.

(2) An appeal may lie from an original decree passed ex parte.

(3) No appeal shall lie from a decree passed by the Court with the parties’ consent.

(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Cause, when the amount or value of the subject matter of the original suit does not exceed three thousand rupees.

According to Section 96:

 a) Appeal will lie from an original decree passed ex-parte, 

b) No appeal will lie from the consent decree. It is based on the principle of estoppels; it presupposes that the parties to an action can, expressly or impliedly, waive or forgo their right of appeal by any lawful agreement or compromise or even by conduct. But it doesn’t apply when it is challenged that the compromise was not arrived at lawfully. 

c) If a decree has been passed by the court of small causes where suit value does not exceed ten thousand rupees, appeal will lie only on a question of law. It has been done so as to reduce appeals in petty cases. It bars appeals except on points of law. 

• Sections 96-99+Section 107+Order 41 deal with first appeals. 

• In the first appeal, parties have a right to be heard- both on questions of law and fact. 

• First appellate court has to write a self-contained judgement, give reasons for its decision on the points of determination, and consider all the evidence on record. Read it with Order XLI Rule 31. 

• First appellate court is the final court of facts; it has to consider all the evidence on record, must consider reasons given by the trial court for its findings. 

• Section 96 provides for the first appeal and section 100 provides for second appeal.

Right Of Appeal 

• There is no natural or inherent right to appeal. It is a statutory right, and it can be conditional or qualified. 

• It exists only when a statute confers it. 

• The scope of such right is also determined by the statute that confers it. 

• It is a substantive right. 

• This vested right can be taken away only by a subsequent enactment if it so provides expressly or by necessary implication and not otherwise. 

• Right to appeal is a universal requirement because all men are fallible, and judges are human beings and may commit a mistake.

 • Right to file a suit is an inherent right unless the suit is barred by a statute but the right to file an appeal is conferred by the Statute only. 

• While a suit creates a cause, an appeal reviews and corrects the proceedings in a cause already constituted

Appeal With The Aid Of Some Of The Parties

 Order 41 Rule 4 offers as under “One of numerous plaintiff or defendants may also reap reversal of entire decree where it proceeds on ground common to all. – Where there are greater plaintiffs or greater defendants than one in a suit, and the decree appealed from proceeds on any floor not unusual to all the plaintiffs or to all of the defendants, any one of the plaintiffs or of the defendants might also enchantment from the whole decree, and thereupon the Appellate Court may additionally opposite or range the decree in favour of all of the plaintiffs or defendants, as the case may be.”

Admission Of Appeal

 Under Order 41 R. 11 C.P.C. Appeal is heard in admission. Prior to 2002 Amendment of C.P.C. Records of the Court below will be referred to as for earlier than such hearing. However, after 1.7.2002 whilst applicable Amendment of 1999 became enforced such electricity is not there. First Appeal under Section 96 C.P.C. shall usually be admitted and now not disregarded in limine vide Union of India v. K. V. Lakshman.

Dismissal In Default Of Appeal Ex-parte Hearing And Restoration

 Before 1976-77 Amendment of Order 41Rule 17 C.P.C. There has been battle of opinion amongst unique High Courts regarding strength of the courtroom in case the appellant does no longer appear and only respondent seems, there has in no way been any doubt that in such a scenario, appeal can be disregarded in default, however, the difference of opinion was as to whether or not in such situation appeal can be brushed off on merit or not.

Judgements

In Union of India v. Ibrahim Uddin,

 Scope of order 41 Rule 27 has been discussed in detail and it has additionally been held that software for additional evidence shall be taken into consideration along with hearing of appeal. 

In Union of India v. K.V. Lakshman 

The High Court in the First Appeal refrained in rejecting the application, and it should have taken additional evidence sought to be adduced by the appellant on file because, among other things, it turned into the Union of India, deserving greater indulgence in such procedural matters, and the documents sought to be adduced public files.

Conclusion

To summarize, the appeal is a substantive right and a matter between parties. The court hearing the appeal will be the only one to decide whether or not the appeal is competent. Appeals are recognized as statutory rights for anyone who has been wronged by a lower court’s decision in the interest of In the case of an appeal to the first appellate authority, the period of limitation is 90 days, and in the case of an appeal to the High Court, it is 180 days. Finally, it can be stated that the CPC’s provisions comprehensively address both substantive and procedural issues of all types of appeals while making explicit revisions to accommodate more specialized legislation. The Code of Civil Procedure specifies a type of appeal known as a first appeal.

Articles

Trade or Commerce in Wildlife Animals, Animal Articles, and Trophies

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Trade or Commerce in Wildlife Animals, Animal Articles, and Trophies; It’s Prohibition under Wildlife Life (Protection) Act, 1972.

This article is written by Shrasti Singh, a student of Shri Ramswaroop Memorial University, Lucknow

Introduction

 India is rich in its wild life. Wildlife means all animals living and plants growing in a natural environment or animals that means flora and fauna.  Wildlife is one the most basic of natural resources which plays major role in maintaining our ecosystem balanced and helps in fulfilling the needs of human being. Thus, it is our prime duty to protect and conserve this resources. Today, man, in the process of progress and development and to meets their selfish end is causing much damage to the forest and wildlife.

From the ancient times, India play a very important role in the environmental protection and in conservation of wildlife. Hindu religion have linked some animals with specific god and Goddess as the best way of conservation of wildlife like snake with God Shiva, Lion with Goddess Durga etc. rendering the animals pious and protected. Many kings and rulers took measures to protect the wildlife. Indian mythology and books like Panchtrana and Ramayana is full of references and instances of our regard and love for wild animals. In ancient period, Wildlife was protected by using religious ideals and sentiments.

 In the third century, king Ashoka was the first who made a codified law in the matter of preservation of wildlife and environment, where he prohibited killing of certain species of animals such as parrots, ruddy geese, rhinoceros etc.

During Mughal period, we witnessed a steady decline in wildlife population due to lack of legal control on hunting. In this period, hunting was considered as a royal game. Elephants and horses were used in battles and killed in large numbers.

During 18th and 19th Centuries, the British rulers and some Indian rulers have caused ruthless destruction of Indian wildlife for food, recreation, hide, horn, musk, etc. and also the deforestation for the constructions of highways, railways, dams, human dwellings and many other similar purposes.  The British raj had heralded the death toll of India’s wildlife. High demands for goods made from tusks, skin and horns of animals including development of taxidermy contributed to faster pace of destruction of wildlife. There are some species which came to extinction for which new strategies were evolved for the protection. 

 After independence also, the destruction of wildlife everywhere and by everyone was continued. Extensive hunting by the British and Indian Rajas, large scale clearing of forests for agriculture, availability of guns, poaching, strong pesticides and the increasing population have had disastrous effects on India’s environment. For the urgent need to protect the wildlife, Parliament had passed the wildlife protection Act, 1972 with object to protect of the country’s wild animals, birds, and plant species, in order to ensure environmental and ecological security. It also deal with the trade or commerce in wild animals, animals’ articles and trophies. Government also has established over 103 national parks, 566 Wildlife Sanctuaries and 18 Biosphere Reserve to conserve and protect the scheduled wild animal.

  • In the 42nd Amendment Act, 1976, the subject entry of Forests and Protection of Wild Animals and Birds was transferred from State to Concurrent List.
  • It shall be the fundamental duty of every citizen to protect and improve the natural environment including forests and Wildlife.
  •  The Directive Principles of State policy also mandates that the State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country under Article 48 A.

Chapter V OF WILDLIFE (PROTECTION) ACT, 1972 (SECTION 39-49) PROVIDE FOR THE TRADE OR COMMERCE IN WILD ANIMALS, ANIMAL ARTICLES AND TROPHIES. 

Before starting with the main point we should know the meaning of ‘ANIMALS’, ‘ANIMALS ARTICLE’ AND ‘TROPHIES’ given under this act-

SECTION 2 (1) defines “Animal” includes amphibians, birds, mammals and reptiles and their young, and also includes, in the cases of birds and reptiles, their eggs

SECTION 2(2) defines “animal article”. It means an article made from any captive animal or wild animal, also includes an article or object in which the whole or any part of such animal has been used, and ivory imported into India and an article made therefrom.

Section 2 (36) defines “wild animal” means any animal specified in Schedules I to IV and found wild in nature.

SECTION 2(31) defines “trophy” as means the whole or any part of any captive animal or wild animal, which has been kept or preserved by any means, whether artificial or natural. It also includes – rugs, skins and specimens of such animal mounted through a process of taxidermy, and antler, bone, carapace, shell, horn, rhinoceros horn, hair, feather, nail, tooth, tusk, musk, eggs, nests and honeycomb.

SECTION 2(32) “uncured trophy” means the whole or any part of any captive animal or wild animal, which has not undergone a process of taxidermy, and includes a freshly killed wild animal, musk and other animal products.

In the case of State of Tamil Nadu and Another v. M/s. Kaypee Industrial Chemicals Private Limited (2005) the collection of coral for commercial use in lime manufacture was allowed or not was questioned. The madras court held that Dead pieces or the outer skeleton of a protected marine living organism would not fall within the definition of animal article or wild animal and that therefore its collection was not banned. But this judgment was contrary to the Delhi High Court’s view in Cottage Industries Exposition Limited since as per that view, the dead coral would fall within the definitions of trophy or uncured trophy and would therefore be protected.  This judgment was appealed by the State to the Supreme Court where a stay was granted on such collection. Owing to the stay, the Madras High Court declined to allow collection of coral in the case of the C.Rathinavel v. State of Tamil Nadu & Ors. (2008).

In the case of Cottage Industries Exposition Limited and Another v. Union of India and Others (2007),  The Delhi high court held that the definitions of ‘uncured trophy’, ‘trophy’ and ‘Scheduled animal article’ are not separate or distinct compartments but are complementary to one another. 

Section 39. Wild animals to be government property.

The following shall be the property of the State Government, and, where such animal is hunted in a sanctuary or National Park declared by the Central Government, such animal or any animal article, trophy, uncured trophy or meat shall be the property of the Central Government. They are;

  1. wild animal, except vermin, which is hunted under section 11 or kept or bred in captivity or hunted in contravention of any provision of this Act or any rule or order made thereunder or found dead, or killed or by mistake; and

2) Animal article, trophy or uncured trophy or meat derived from any wild animal:

3) Ivory imported into India and an article made from such ivory;

4) Vehicle, vessel, weapon, trap or tool that has been used for committing an offence and has been seized.

If any person who obtained the possession of Government property, should make a report as to the obtaining of such possession to the, nearest police station or the authorised officer within forty-eight hours and also hand over such property to the officer-in-charge of such police station or  authorised officer.

 No person shall be allowed to acquire or keep in his possession, custody or control, or to transfer to any person, whether by way of gift, sale or otherwise, or to destroy or damage, such Government property except with the previous written permission of the Chief Wild Life Warden or the authorised officer.

Section 40 – Declaration

Every person in possession or custody of any captive wildlife animal should compulsory make declaration to the Chief Wildlife Warden about the number and description of the animal, or article under his control, custody or possession within thirty day from the commencement of the Act.  Such person is exempted if he obtained the written permission from the Chief Wild Life Warden or the authorised officer. No person except one with a certificate of ownership can keep, acquire, and keep in control etc. any captive animal except by inheritance. Declaration of such inheritance should be made in ninety days to the Chief Wild Life Warden or the authorised officer.

Section 41- Inquiry and preparation of records.

The Chief Wild Life Warden or the authorised officer after receiving a receipt of declaration under section 40, have the power to enter upon the premises of a person, or may make inquiries and prepare records of animal articles, trophies, uncured trophies, salted and dried skins and captive animals listed in Schedule I and Part II of Schedule II and also tag an identification mark upon the animals, animal articles, trophies or uncured trophies.

 Section 42-Certificate of ownership.

The Chief Wild Life Warden issued a certificate of ownership to a person, who is in lawful possession and after guaranteeing that the applicant has adequate facilities for housing, maintenance and upkeep of the animal ownership.

Section 43- Regulation of transfer of animal, etc.

No person who has with him a captive animal with a certificate of ownership shall transfer by way of sale or offer for sale or any other commercial consideration. In case of such transfer, to or from another state, he has to report the same within 30 days to the Chief Wild Life Warden or the authorized officer within whose jurisdiction the matter falls except to tail feather of peacock and to transfer of captive animals between recognized zoos subject to the provisions of section 38-I and public museums.

SECTION 44. Dealings in trophy and animal articles without license is prohibited

It prohibits carrying on business as a manufacturer/ dealer of animal articles, a taxidermist, dealer in trophies or uncured trophies, dealer in meat and dealer in captive animals. And also to serving meat in any eating house. Nothing in this section applies to a person practicing such a business/ occupation before the commencement of this Act or has made an application for the grant of a license until such license has been granted/ denied.

Also, dealers in (tail) feathers of peacock and articles made thereof are exempted from this provision.

Every person engaging in above prohibited business  should declared his stocks of animals, trophies, etc. to the Chief Wild Life Warden or any authorized officer so they can place an unique identification marks on the animal.

An application for grant of license has to be made to the Chief Wild Life Warden or the authorized agent. The officers need to consider the previous experience of the applicant and need to hold into account the implications arising from the grant of such license to the status of wildlife. Only on their satisfaction shall such a license be granted.

Every license granted shall specify the premises and conditions in which the licensee shall carry on his/her business. Such license shall be valid for a year, be non-transferable and be renewable for a period not more than one year.

 The application for renewal must be rejected only if it is been made after the expiry of the prescribed period (unless there is sufficient cause for the same), or any statement made by the applicant at the time of grant’ renewal was false or incorrect in material particulars, or the application contravenes any term or condition of the provisions of the Act, or failure of behalf of the applicant to comply by the prescribed conditions.

Section 45: Suspension or cancellation of licenses

The Chief Wild Life Warden or authorized officer have the power to cancel or suspend any license granted/renewed upon reasonable ground, provided that the person whose license is being canceled/ suspended has been given a reasonable chance of being heard. This power is subject to the order of the State Government.

Section 46: Purchase

 If the order denying to renew/ grant license under Section 44 or suspending/cancelling licenses under Section 45 was given out by an authorized officer or by the Chief Wild Life Warden then an appeal can lie before the Chief Wild Life Warden or to the State Government. Time limit for filing an appeal is within thirty days from the day of order, however, the appellate authority may consider an appeal after thirty days if it is satisfied that the appellant had sufficient cause to delay.

Section 49: Purchase of captive animal by a someone apart from licensee

Under this Act, no person, apart from licensee, is permitted to buy, receive or hold any captive animal, wild animal, any animal article, and trophy. However, this is not often applicable to a recognized zoo subject to provisions of Section 38-I or a public museum.

CHAPTER VA Deals With The PROHIBITION OF TRADE OR COMMERCE IN TROPHIES, ANIMAL ARTICLES, ETC.

Section 49A provided Definitions for the word employed in this chapter

(a) “Scheduled animal” means an animal specified for the time being in Schedule I or Part II of Schedule II;

(b) “Scheduled animal article” means an article made from any Scheduled animal and includes an article or object in which the total or any part of such animal has been used except of tail feather of peacock and snake venom.

Section 49-B: Prohibition of dealings in trophies, animal articles, etc., which are a part of scheduled animals.

According to this provision, no person is permitted to begin or carry on business as-Manufacturer/ Dealer of scheduled animal articles, Taxidermist practicing on scheduled animals, or Dealer in trophy/ uncured trophy derived from a scheduled animal, or Dealer in captive animals being scheduled animals, or Dealer in meat obtained from a scheduled animal.

However, a person holding a license as a taxidermist under Section 44 may be allowed to perform taxidermy on a scheduled animal if it is for or on behalf of the Government, or with the previous authorization obtained in writing by the Chief Wild Life Warden, for and on behalf of any person for scientific/ educational purposes.

Cooking/ serving meat procured from scheduled animals in an eating-house is also prohibited.

The section 44 does not apply on this section.

Landmark Judgement

Tilak Bahadur Rai v. State of Arunachal Pradesh, 1979 Cr. L.J. 1404.

In this case, Tilak Bahudhar had shot and killed a Tiger. The issue raised before court was that whether accused acted in good faith or not when he killed a wild animal.  The court whereas deciding have to be compelled to perceive the nature and the dangers that lurked around the accused and beneath what circumstances did the accused kill the animal. After the arguments put forth by both the parties, the Court held that the accused shot the tiger in good faith in order to protect himself because if he does not shot the tiger, he would die. Thus killing tiger can be amounted as self-defense and was, therefore, justified. In this judgement the court observed that if any animal is killed or wounded as by an individual as a means to protect himself, then such animal is the property of the government. No claim should be made by any person who killed the wild animal.

2. Rajendra Kumar v. Union of India, AIR 1998 Raj. 165.

The petitioner had been issued a license by the state for running a business of Carver Ivory, i.e.; as Mammoth ivory. An act restricted trade with reference to ivory due to their declining population However, the list of Scheduled animals did not mention elephants, and Section 44 of the Wild Life Protection Act, 1972 provided for the license of the import of ivory. The petitioner in his favor put forward that the said amendment banned the trade of Asian and African elephants but he was trading in mammoth ivory. He should be allowed to resume free trade.

The court held that trade in Asian elephants was made under the cloak of trade of mammoth ivory, and that mammoth ivory was also included under the term “ivory”. The petition was rejected by the court.

3. Baburao v. State of Maharashtra and Others (2012) (Bombay High Court)

 A petition was filed to claim a compensation for damage done to crops since the petitioner was unable to take care of his agricultural land due to the presence of tigers. The High Court held that the petitioner was eligible for compensation, one of the reasons it gave for the same was Section 39 of the Act. And viewed that the wild animals should be treated as Government property for all purposes. 

4. Indian Handicrafts Emporium and Others v. Union of India and Others (2003)

In this case, The Supreme Court upheld the constitutional validity of the inclusion of “ivory imported into India” within the Act and observed that the restrictions imposed on the trade were reasonable, as the main reason was to avoid the escape done by laundering illegal ivory trade as legal ivory which result in endangering Indian elephants.

5. Wildlife vs. Mohd. Ishaq Baig (2010) 

In this case accused was charged for the offence under section 51 of the Act read with section 49 and section 49B (1) of the said Act. He was found in possession of 159 shawls which were suspected to be made from ‘Shahtoosh’ derived from Tibetan Antelopes, in different ratio with other wool. The court held that hair is part of animal article of scheduled animal and accused was found guilty of the offence.

Conclusion

It is our utmost duty to protect and preserve wildlife and keep on including measures to discourage trade and commerce of the same .wildlife protection is an urgent need of hour for maintaining the ecological balance in the environment and sustaining the ecological chain. Strict legal action should be taken against the illegal wildlife trade and commerce.

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Sex Inequality in Inheritance

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This article is written by Shrasti Singh, a student of Shri Ramswaroop Memorial University, Lucknow

Introduction

In India, women are given great respect in the society but when we talk about their rights in our society, we get to see inequality in them. One of the right are- Right of inheritance and succession. In India, there is no uniformity in inheritance laws. Different religious communities are governed by their own personal laws like Hindus are governed by Hindu law, Muslims are governed by customary law under the Muslim Personal Law (Shariat) Application Act, 1937. Other than that there is an Indian Succession Act, which apply to all Indian citizen who are not Hindu, Sikh, Jain, Buddhist or Muslim. 

Inheritance and succession are the concept of transferring property and wealth from one generation to the other. Inheritance means the devolution of the property (moveable and non-moveable property), title, rights and duty to another person on the death of an individual either by law of succession and by a will.  There are two type of property-

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Conclusion

Thus gender- neutral succession law is need of the society. Women should be not discriminated in any sphere of life including inheritance purpose. Now, the socio –economic status of women in India is considerably changed.  Most of women are involving herself in workforce and contribute in making money and self-acquired property. Women today run their own businesses. Women own 21.5% of all proprietary establishments in the country. Thus provision in Hindu Succession Act should be amended to made law gender neutral based on the modern Indian society in which women is at par with men and follows the constitutional provision of Article 14 and Article 15(1) which talks about right to equality and no discrimination of any kind on the basis of sex, place of birth, religion, race and caste and international convention CDEAW. 

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A minor girl, leaves her parent’s house because of ill treatment and lives with, B her friend. Can he be prosecuted for kidnapping?

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This article is written by Shrasti Singh, a student of Shri Ramswaroop Memorial University, Lucknow

Introduction

Kidnapping is known as “child stealing” which is combination of two words: kid means child and napping means stealing. Kidnapping is a criminal offence against lawful guardians. It means confine a person against his/her will by force, threat or deceit. Section 359-363 of the Indian Penal Code 1860, provide provision for the kidnapping offence. Usually, the kidnapping is done for various purpose like ransom, begging, illicit intercourse, marriage prostitution, revenge, slavery, murder, and political purpose and for other purpose. Kidnapping comes under category of the strict liability. Intention of the accused is not essential ingredient of kidnapping. Kidnapping is an aggravated form of unlawful confinement. It is not continuing offence unlike abduction under section 362. It is complete as soon as the minor or person of unsound mind is removed from lawful guardianship.

 In law, there are two types of kidnapping – kidnapping from India and kidnapping from lawful guardianship given under section 359 of I.P.C. sometime they can overlap each other.

Kidnapping from lawful guardianship

Kidnapping from the lawful guardian is a criminal offence under section 361 of the Indian Penal Code 1860. For committing this crime, there are four important element which are required to be completed-

  1. The accused must take or entice away a minor or unsound person,
  2. Such minor should be of age 16 year old for male and 18 year old for female;
  3. Accused is taking and enticing must be out to keep away from lawful guardianship of such minor and unsound person.
  4. Accused is taking or enticing the minor without the consent of the lawful guardianship.

Here Lawful guardianship means any person lawfully entrusted with the care and custody of such minor or unsound person.

EXCEPTION OF THE SECTION 361 OF I.P.C.

However this section have two exception –

  1. When the accused in good faith believe himself to be the father of an illegitimate child or;
  2. When the accused in good faith believe himself to be entitled to lawful custody of such child, unless such 

Illustration-

 A minor girl Kajal is of age of 13 years, living under the lawful guardianship of her father Manoj. Rama his neighbor convinces him to accompany him to his house against the consent of his mother. According to Section 361, ‘rama’ has committed the offence of Kidnapping from lawful guardianship as he is taking Kajal away from her father against her father’s consent.

OBJECT OF SECTION 361

 The object of this section is to protect the minor children and unsound person from being seduced for improper purposes or being exploited and also used to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards.

Meaning Of Taking, Enticing and Keeping Used In This Section

  • ‘Taking’ means letting go, to escort or take someone into possession with or without using force. In order to prove the crime the prosecution have to show the accused took active part in the minor’s leaving the lawful guardianship custody and taking shelter with him. Taking does not require to be forceful, it may be persuasive and immaterial of the minor’s consent. Persuasion by the accused which creates a willingness on the part of minor to be taken out of the keeping of the lawful guardian would be sufficient but if the minor without any inducement goes herself out of the keeping of lawful guardianship and the accused person accompanies her then in such a situation he shall not be liable for the offence. Taking doesn’t need to be a single act but total series of acts could together constitute the process of taking; the act is complete only when the minor is out of his legal possession of his guardians. When the accused takes the minor away with him, the act of taking is complete whether he was willing or not.
  • Whereas ‘Enticing’ means inducing a minor to go his own accord to the accused. It is exciting hope or desire in a person to be taken away. Enticement is completely dependent upon the mental state of the person when the inducement happens. It is not confined to a single form of allurement and any act which is enough to allure a minor girl is enough to constitute allurement in enticement, the kidnapper convinces the minor, through allurement, to do something he/she would otherwise not do. Force or fraud is not necessary to constitute enticement or taking away. The minor’s mental attitude is relevant in the enticement. The promise of marriage made to the minor girl for leaving the lawful guardian’s house shall be treated as an enticement. The distance to which minor is being taken is also immaterial. If the accused removes the keeping of the legal guardian without the guardian’s consent and returns to his house after a minor return sometime, the accused shall still be held liable for the offence.
  • The word ‘keeping’ in the context connotes the ideas of charge, protection, control and maintenance, further the guardian’s charge and control-appears to be compatible with the independence of action and movement in the minor, the guardian’s protection and control of the minor being available, whenever necessity arises. The minor does not require to be in physical control of guardian. But so long as guardian is well known about the child’s whereabouts and minor’s movement is controlled, he is said to be in the guardian‘s care. Thus, the child is kidnapped when a child is taken to such an area outside the circle where the guardian no longer knows the child’s whereabouts nor any control over his moves. A minor said to be not in the keeping or control guardianship if minor was driven away from the parental home or minor voluntarily leave the control of the guardian on the account of ill-treatment. Orphan cannot be kidnapped as he is not in the custody of lawful guardianship.

While reading the text of the section, we get to known that the consent of the minor who is taken or enticed is fully immaterial. Here only the consent of the lawful guardianship would be sufficient to attract the section. As child does not competent to give valid consent in law. The consent of the guardian must be free consent and not taken under influence or fraud. It should also be noted that kidnapping is a strict liability offence i.e. the accused’s intention is immaterial. Thus, even if the accused took a minor out of the guardian’s keeping for a good cause, he is still liable for the kidnapping offence. For eg in the case of R vs Prince, the boy take out the girl from her lawful guardianship believing in good belief she is 18 year old though she was originally 16 year old. The court convicted him for kidnapping as the accused intention is immaterial in the offence of the kidnapping.

Punishment for kidnapping

Section 363 of the Indian Penal Code provides the provision for the punishment of both kinds of kidnapping (Kidnapping from India and Kidnapping from lawful guardianship) as

  • Imprisonment of either description (simple imprisonment or rigorous imprisonment) which can extend up to seven years, or Fine.

In the case of the S. Varadarajan v. State of Madras, the difference between taking and allowing minor to accompany a person explained. The fact of the case was, one father named S. Natarajan lived in Nungambakkam with his wife and two daughters name Rama and Savitri. Both were in college. Savitri was a second year student pursuing B.sc course.

Savitri became friendly with the neighbor S. Varadarajan who was accused in the case. The older sister Rama had seen many time both of them talking and meeting with each other. Rama confront Savitri regarding her behavior and intention. Savitri told her that she loved him and wanted to marry her. Rama narrated the story of love affair to her father and told her intention of marriage. Knowing about everything, S. Natarajan took Savitri to his relative home so that she can stay away from the accused.

On 1st October, Savitri leaved the home of relative and telephoned her lover to meet her at certain place and from there they both go away to Mylapore city. They went to the marriage registration office along with their friend Sami to be witnessed. They got married there. On the same day the family of Savitri got to know that she was missing. S.Natarajan filed a missing complaint of her minor daughter in police Station.

After doing police investigation, police caught them in Tanjore. The madras High court sentenced him one year rigorous punishment to Varadarajan founding guilty for kidnapping under section 363. Then the accused not satisfied with the judgement of the high court of Madras appealed in Supreme Court by using special leave. 

Judgement of the court

The Supreme Court made the observation that she left her relative house willing. The accused does not suggest her to leave the house. She was the first who urge to marry Varadarajan.  Savitri voluntarily accompanied him and the law did not cast him the duty of taking her back to her father’s house and tell her not to accompany him.

The court opined that Savitri was at verge of attaining the age of maturity. She was well educated and she was competent to know what is right or wrong for her. She called the lover and also choose the meeting point. There was no pre- planning. S.Varadarajan   had neither administered threat nor persuaded in any form while leaving the house or during marriage in register office. It was done willing   to fulfill the desire of Savitri.

The court observed that the one essential element of kidnapping is not fulfilled that to take or entice away minor or unsound person from lawful guardianship. She voluntarily left. Thus, the court held that no offence under section 363 has been established against the accused. He was acquitted in the case and the judgement of the high court was set aside.

In the case of Thakorilal D Vadgama vs. State of Gujarat (Parker Pen Case), Thakorilal D Vadgama, was an industrialist who had a factory at Bunder Road for manufacturing oil engines and adjoining the factory was his residential bungalow. During the bombardment of Jamnagar by Pakistan in 1965, Mohini’s parents came to reside temporarily at Bhrol near Jamnagar. The appellant came to be introduced to that family and on December 18, 1965, which was Mohini’s birth-day, the appellant presented her a parker pen. Mohini was a 14 year old girl going to School. The accused make a relationship with that family so strong that he also take them out on the trip and spend lavishly on hotel in Ahmedabad, Bombay, Mahabaleshwar and Mount Abu.  He was actually found by the side of Mohini in Mohini’s bed by Mohini’s mother at Mount Abu. She objected their relationship and told her husband.

 Mohini composed letters to him about rebuking of her parent and beating and also communicating her craving to go out. The accused after knowing the intention of the girl took a chance to take out girl from her lawful guardianship. He guaranteed her that he will give recompense to her on January 16, 1967 and he will always keep her permanently in his house. Mohini leaved her parent’s home and went to kishorilal’s place. . They made sexual relation. She remained in his garage and he gave her clothes, food and gave rupees 250.

On 17 January 1967 police came to appellant Bungalow. Mohini flee from the secondary passage and went to side of the road where she found by police. Mohini’s garments were found from his car. The appellant was charged under section 361, 366 and 376 of IPC for kidnapping and rape. 

Decision of the Court

The trial court convict him for both kidnapping and rape under section 366 and 376 of I.P.C.  In appeal, the Gujarat High Court acquitted him against the offence of rape but convicted him for kidnapping. Against the decision of high court appellant filed the second appeal in Supreme Court. 

The Supreme Court observed that the word ‘entice’ means ‘to involve the idea of inducement or allurement’ by giving rise to hope and desire in the other. If the minor leaves her parents’ house influenced by any promise, offer or inducement emanating from the accused then the accused will be guilty of an offence as defined in section 361 of IPC. The court observed that “if he had at the former stage, persuade and ask for her in any way possible to leave her lawful guardianship (parent’s house), by conveying or indicating or encouraging suggestion that he would give him a home to stay permanently or marry her, then the mere circumstance that the act was not instant cause of her leaving the father’s home would not valid defence for the appellant and he cannot plead that the girl had left the house voluntarily.

 Thus, Supreme Court upheld the decision of High Court as appellant at earlier age used allurement and induce her to leave the parental home and going to his house. Thus, it is prime facie difficult for guilty party to plead for innocence. 

In the case of State of Haryana v. Raja Ram, the court give the meaning of keeping. The fact of the case was that a girl Santosh Rani daughter of Narain Das, was 14 year old. Jai Narain (32Years) visited the house of Narain Das for treatment of his sons and he had fallen in love of Santosh Rani. Love started to culminate slowly and slowly. He seduce her to go and live with him. Narain Das opposed and prohibited entry of Jai Narain in his house. The accused Raja Ram act as a Messenger of Jai Narain. In persuasion of Raja Ram, Santosh Rani leaved her house on the night between April 4 and 5 and went along with raja Ram to meet Jai Narain. Finally she met with Jai Narain and both enjoyed their life. On April 13, 1968 at about 7 a.m. Ram Shah, S.H.O. along with three other persons and Narain Das, saw Jai Narain and Santosh Rani coming from the side of Dera Waswa Ram. As they reached near Dera Ganga Singh, Narain Das identified his daughter and Jai Narain, accused, was taken into custody. The prosecutrix had a jhola which contained one suit and a shawl and two chunis which were taken into possession. The salwar of the, prosecutrix appeared to have on it stains of semen. 

Trial court convicted both Jai Narain and Raja Ram. But they appealed against the judgement in the High Court of Punjab & Haryana. A learned single Judge of that Court dismissed the appeal of Jai Narain maintaining his conviction and sentence but acquitted the respondent Raja Ram of the charge under Section 366 IPC on the basis he does not persuade or induce to leave her parental home. It is against the order of the respondent‘s acquittals that the State of Haryana has appealed to Supreme Court.

The Supreme Court allowed the appeal and set aside the order of the High Court that acquit Raja Ram and restored the earlier punishment. As the respondent’s action was the proximate cause of the prosecutrix going out of the keeping of her father and indeed but for Raja Ram’s persuasive offer to take her to Jai Narain the prosecutrix would not have gone out of the keeping of her father who was her lawful guardian, as she actually did. Raja Ram actively participated in the formation of the intention of the prosecutrix to leave her father’s house.

In the case of Biseswar Misra v. The King, the court observed that just passive consent for giving shelter to the minor by accused does not amount to taking or seducing the minor, but when the accused actively bring about her stay in the house by using inducement or allurement which affect the minor mind  is equivalent to kidnapping under Section 361 of the Indian Penal Code. 

 In the case of Gunder Singh, the minor girl had run away from parent’s home in consequence of ill- treatment and meet with ‘A’ on the road, had agreed to take service as a coolie and went with him. In this case there was no kidnapping.

Conclusion

The Answer of above question is no.‘A ’minor girl, leaves her parent’s house because of ill treatment and lives with her friend. He cannot be prosecuted for the offence of kidnapping because he does not fulfill all the essential element of kidnapping. He does not entice or take away the minor girl from the lawful guardianship. He does not allure nor induce her to leave her parental home and live with her. A minor girl voluntarily leaves her parent’s home because of ill treatment and take shelter in her friend house. Here, using the precedent of above decision and observation of Supreme Court we can say that her friend cannot be convicted under section 363 of I.P.C. for the offence of kidnapping from lawful guardianship. 

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Res Ipsa Loquitor: Overview

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This article is written by Ishanvi Jain, a student of Galgotias University, Noida

What is Res Ipsa Loquitor?

In Latin it means “the thing speaks for itself.” Legal definition says that it is a doctrine or rule of evidence in tort law that permits an inference or presumption that a defendant was negligent in an accident injuring the plaintiff on the basis of circumstantial evidence if the accident was of a kind that does not ordinarily occur in the absence of negligence. 

It is elementary in the law of torts that the onus of proving negligence lies upon him who alleges it. It is repeatedly declared that negligence will never be presumed. Even if there be a presumption to aid the plaintiff, he must still prove, by a preponderance (the quality or fact of being greater in number, quantity, or importance) of the evidence that defendant has been negligent. ‘Some courts, however, regard the doctrine of Res Ipsa Loquitur as symbolizing the principle of evidence which excepts certain situations from this general rule. Courts which deny that this amounts to an exception, regard a res ipsa case as merely describing a situation where the fact and nature of the injury itself “speaks,” that is, affords proof of negligence, so as to relieve the plaintiff of the initial obligation to show negligence, or rather, perhaps, to discharge that obligation on his part.’

The basis for this principle is generally said to be in the likelihood that negligence caused the injury, in view of the facts of the case. If there must be evidence of negligence, this, then, is the evidence. Circumstantial evidence is made sufficient, as a matter of law, to sustain a recovery in the absence of explanation by defendant. The mere fact of injury alone is never enough to invoke the doctrine of res ipsa loquitur:” But there is still another phase to a res ipsa case. The circumstances which give rise to the injury must be such as to lie exclusively within the defendant’s knowledge. This may be said to be the “reason” for the rule,’ and usually takes the form of the instrument or appliance causing the injury being under defendant’s control and management. Some authorities regard the doctrine as a principle of evidence while others insist upon treating it as a rule of the ‘substantive law of tort.’ 

Res Ipsa Loquitur is a maxim, the application of which shifts the burden of proof on the defendant. Generally, in a case it is the plaintiff who has to provide evidence to prove the defendant’s negligence. There is however, a change when this maxim is used. The burden of proof shifts to the defendant. There is a presumption of negligence on part of the defendant and it is upto him to prove his non-liability and that it was not his act which caused the plaintiff’s injury. The defendant leads the evidence.

Some Important Cases regarding Res Ipsa Loquitor :-

Leading English case as well as the 1st case to formulate the specific doctrine of res ipsa loquitor that is:

  • Byrne v. Boadle. 

Here it appeared that the plaintiff, while walking along the public street, was struck by a barrel of flour falling from a window above, The plaintiff could testify nothing as to the accident save that he had suddenly been injured by some falling object. Yet he had averred (allege as a fact in support of a plea) negligence in his pleading. Two eye witnesses testified that they saw a barrel falling, but could offer no evidence as to the reason for the accident, if “accident” it could be called. Because the plaintiff sought to recover on the grounds of negligence and there was no evidence of negligence, the court non-suited the plaintiff. But in the Court of Exchequer, it was unanimously held that the non-suit was improper and that the plaintiff had in fact offered evidence, by proof of the injury under the circumstances, to sustain a verdict for damages. He had made out a prima facie (at first sight) case which was sufficient to go to the jury. “If there are any facts inconsistent with negligence,” said Pollock, C.B., “it is for the defendant to prove them.” It was incumbent upon the defendant to disclose the circumstances of the falling of the barrel, if they indicated that he had exercised due care. If he had not, he could not complain if the jury so found. The court thought that a barrel “could not roll out of a warehouse without some negligence, and to say that the plaintiff who is injured by it must call witnesses from the warehouse to prove negligence” was preposterous.

  • Roe v. Minister of Health

In this case the plaintiff was admitted to the hospital for minor operations. The plaintiff was administered spinal anesthetics by injections of nupercaine and developed spastic paraplegia. The anesthetics were stored in glass ampoules immersed in a solution of phenol, and the judge found that the injuries were caused by phenol, which could have entered the ampoules through flaws not detectable by visual examination. The plaintiff contended that the doctrine of Res Ipsa Loquitur be applied against the hospital as the injury would not have occurred had the hospital not been negligent. The court held that the doctrine cannot be applied and the defendant cannot be held liable as the very occurrence of the injury or damage was not foreseeable. And the cause for the injury was beyond the control of the defendants. It was said to be a case of unknown tort-feasance.

Thus, in case of offences which are unintended and the commission of the offence itself was not known, the defendant cannot be held liable as in this case its an unidentified tort feasor.

  • A.S. Mittal and Anr v. State of U.P. and Ors.

The defendants had organized an eye camp at Khurja along with the Lions Club. 88 low-risk cataract operations were undertaken during the period of the camp. It was however, disastrous as many of those who had been operated upon lost their eye sight due to post medical treatment. Proceedings against the government initiated for negligence of the doctors. Damages worth Rs 12500 were paid as interim relief to each of the aggrieved. The decision was on the basis of Res Ipsa Loquitur as the injury would not have occurred had the doctors not been negligent in not having followed up with post-operation treatment.

Res Ipsa Loquitur can be applied in matters where all the procedures have not been followed and is not just limited to the commission of an act.

  • M.C.Mehta v. Union of India

More popularly known as the Olium gas leak case, this is a Public Interest Litigation regarding the establishment of enterprises involved in hazardous works in thickly populated areas in the light of the Olium gas leak. The Olium gas leak had occurred in the work premises of Shriram Mills. Olium is a hazardous gas and this nature of the gas had caused the death of many people and causing serious injuries to the health of others staying in the close vicinity. It was not possible to establish negligence of the mill owners and Res Ipsa Loquitur was applied to shift the burden of proof on the mill owners to show that they were not negligent. In the PIL it was pleaded that any industry involved in cases of injuries/damage due to the hazardous activities it undertakes then the onus must be on them prima facie to establish that they were not negligent. In this case the maxim was made use of to establish negligence and they were held liable for the damage and injury caused. It was further held that any company involved in hazardous activities will be held negligent prima facie and it is upto them to lead the evidence and prove how they are not negligent failing which they will be held liable.

In Res Ipsa Loquitur, the defendant will lead evidence. There is a two step process to establishing Res Ipsa Loquitur-

1. Whether the accident is the kind that would usually be caused by negligence.

2. Whether or not the defendant had exclusive control over the instrumentality that caused the accident.

If found, Res Ipsa Loquitur creates an inference of negligence.

Res Ipsa Loquitur finds its applicability in a variety of situations. In the United States it is mostly applied in cases of commercial airplane accidents and road and traffic accidents.

Generally, it is applied in cases of medical negligence where it cannot be ascertained as to which specific act of the hospital had caused the injury and where the situation is never outside the control of the hospitals.

A minority of courts hold that res ipsa creates a rebuttable presumption of negligence. Unless the defendant offers sufficient evidence to contradict it, the court must direct a verdict for the plaintiff. Some states have gone as far as to shift the burden of proof to the defendant, requiring her to introduce evidence of greater weight than that of the plaintiff

Conclusion 

Res Ipsa Loquitur is finding increasing applicability in the modern era. It is applied in cases of industries like the use of the maxim in the M.C.Mehta v. Union of India popularly known as the olium gas leak case and generally all cases where the rights of the public is violated and they have been aggrieved and it is not possible for them to establish negligence. So the onus of not proving negligence is shifted to the defendants.

It is applied primarily in all prima facie cases, where at first instance the negligence on part of the defendant is evident and without which the injury would not have occurred. In such a case, it is presumed that the defendant is negligent and it is upto him to prove why he is not negligent.

Articles

Amendment Of Constitution

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This article is written by Sreeya Chowdary Kesanapalli, a student of Gitam School of Law, Visakhapatnam

Introduction

The constitution of India is one of the most captivating documents on this planet. No other country has a constitution as broad as ours and is the largest constitution in the world. However, despite being so comprehensive, this document is so interesting because it is extremely flexible. The Constitution affirms India to be a sovereign, socialist, secular, democratic republic, ensuring justice, equality and freedom for its citizens and endeavouring to promote brotherhood. The fathers of our constitution made it so, they wished that the constitution would not only serve the country to grow, but it would also grow alongside it. Thus, the government can amend the constitution depending on various concerns brought up. 

History

The constitution was adopted by the constituent assembly on 26th November 1949 and was legally enforced on 26 January 1950, the day marked and celebrated as Republic Day in India. The chief architect of the Indian Constitution is B.R Ambedkar. The Constitution of India was originally written in two languages, that are English, and Hindi and each member of the Constituent assembly signed both copies. It shall be noted that there were as many as 2000 amendments made to the first draft of the Indian Constitution.

The Basic Structure Of The Constitution

According to the Constitution, Parliament and the state legislatures in India have the power to make laws within their own jurisdictions. This power is not absolute in nature—the Constitution vests in the judiciary the power to adjudicate upon the constitutional validity of all laws. If a law made by Parliament or the state legislatures violates any provision of the Constitution, the Supreme Court has the power to declare such a law invalid or ultra vires. This check despite, the founding fathers wanted the Constitution to be an adaptable document rather than a rigid framework for governance. Hence Parliament was provided with the power to amend the Constitution. So the Article 368 of the Constitution gives the impression that Parliament’s amending powers are absolute and encompass all parts of the document. However, the Supreme Court has acted as a brake to the legislative enthusiasm of Parliament ever since independence. With the intention of preserving the original ideals envisioned by the constitution-makers, the apex court pronounced that Parliament could not damage or alter the basic features of the Constitution under the pretext of amending it.

The “Basic Structure” doctrine is the judge-made doctrine whereby certain features of the Constitution of India are beyond the limits of the amending powers of the Parliament. Though the Court held that the power of Parliament to amend the Constitution was impliedly limited by the doctrine of basic structure, it did not clearly explain what constitutes a basic structure.

Amendment Of Indian Constitution Under Article 368 

Under Article 368 of the Indian Constitution, the Parliament is empowered to amend it and its procedures. Amendments to the Indian Constitution are not easy to produce and require compliance with other provisions. Article 368 grants Parliament some powers allowing it to amend it while keeping its fundamental form just the same. Article 368 of the Constitution of India cites two types of amendments to the Constitution of India. The form of amendment is by a simple legislative majority (Lok Sabha & Rajya Sabha), the second type of amendment is by a special parliamentary majority, and the third type is with the approval of a special majority and by half the total state. 

Reason For Amendment 

Time is not static; it’s continuing to change. The Constitution needs to be revised. People’s social, cultural, and political situation is starting to modify. If the constitutional changes were not made, we would not be able to encounter future difficulties, and it would become a hurdle in the path of development. There is an explanation of why our founding fathers made the constitution as robust as it is today. It is to ensure the plans are changing with the country’s growth. Therefore, according to Article 368, Parliament’s powers to amend the constitution are unlimited in respect of parts of the constitution which it wishes to amend.

Procedure Of Amendment Of The Constitution

To amend the Constitution a bill in order may be introduced by any House of the Parliament and must be passed by each House by a majority of the total membership of that House and by a majority of not less than 2/3 of the members of that House who are present and are voting. After being passed by both the Houses, it will be presented to the President, and he shall give his assent to the Bill. The Constitution is amended in this process.

Landmark Judgments

  • Kesavananda Bharti Vs. State of Kerala, 1973

Issue

The apex court managed the issue – that whether the Parliament can correct any piece of the Constitution and what was the cutoff to that power? After the phenomenal judgment of Golaknath versus Province of Punjab, the urgent Parliament to pick up its lost incomparability and self-governance passed arrangement of Amendments to by implication overrule whatever was chosen for Golaknath’s situation. The Indira Gandhi government returned in the lower house with gigantic lion’s share in 1971 races and afterwards passed the 24th Amendment in 1971, 25th Amendment in 1972 and 29th Amendment in 1972.

Judgment

The seat by most of 7:6 overruled the dispute of the recommendation of law propounded in Golak Nath versus the State of Punjab, 1967 and held that Constitutional revision isn’t ‘law’ inside the importance of Article 13 and that however no piece of the Constitution, including Part III involving fundamental rights, was past the correcting power, the essential structure of the Constitution couldn’t be annulled even by the constitutional change. It was battled that what respects the fundamental structure, it will be chosen from case to case. Consequently, it was held that the Judiciary can strike down a revision passed by the Parliament that argument with the fundamental structure of the Constitution. The court maintained the whole 24th Constitutional (Amendment) Act, 1971, while the initial segment of the 25th Constitutional (Amendment) Act, 1972 intra vires and a second piece of the ultra vires act, was found. The court that grasped social designing and gauged the interests of the two defendants held that neither one of the parliaments has the ability to weaken the Constitution’s Basic Structure, nor would it be able to renounce the command to make a government assistance state and an impartial society. In Golaknath, the court found that the response to the issue was left unanswered. How much the intensity of Parliament is revised. Regulation OF BASIC STRUCTURE was the reaction which the court deducted.

This teaching put forward that however, Parliament has the privilege to change the whole Constitution yet subject to the condition that they can’t in any way meddle with the highlights so fundamental to this Constitution that without them it would be spiritless. 

Basic Features of the Constitution according to the Kesavananda verdict

Each judge laid out separately, what he thought were the basic or essential features of the Constitution. There was no unanimity of opinion within the majority view either.

Sikri, C.J. explained that the concept of basic structure included:

• supremacy of the Constitution

• republican and democratic form of government

• secular character of the Constitution

• separation of powers between the legislature, executive and the judiciary

• federal character of the Constitution

Shelat, J. and Grover, J. added two more basic features to this list:

• the mandate to build a welfare state contained in the Directive Principles of State Policy

• unity and integrity of the nation

Hegde, J. and Mukherjea, J. identified a separate and shorter list of basic features:

• sovereignty of India

• democratic character of the polity

• unity of the country

• essential features of the individual freedoms secured to the citizens

• mandate to build a welfare state

Jaganmohan Reddy, J. stated that elements of the basic features were to be found in the Preamble of the Constitution and the provisions into which they translated such as:

• sovereign democratic republic

• parliamentary democracy

• three organs of the State

He said that the Constitution would not be itself without the fundamental freedoms and the directive principles.

Only six judges on the bench (therefore a minority view) agreed that the fundamental rights of the citizen belonged to the basic structure and Parliament could not amend it.

  • Minerva Mills Case, 1980

Issue

Minerva Mills in the territory of Karnataka was a material industry associated with the large scale manufacturing of silk garments and addition gave the overall population a market. However, the Central government was uncertain that the business met the standards to be characterized as a debilitated industry. In 1970, the Central Government consisted of a Committee U/s 15 of the Industries (Development and Regulation) Act, 1951 to create a full definite report inspecting Minerva Mills’ undertakings. Consequently, on 19 October 1971, the Central Government depending on the Committee’s assessment, appointed a National Textile Corporation Limited (a substance under the 1951 Act) to assume control over the administration of Minerva Mills u/s 18A of the 1951 Act.

However, the applicant couldn’t challenge the part of the 39th Constitutional (Amendment) Act, 1975, since the Parliament had before embedded Nationalization Act, 1974 into the Ninth Schedule which meant that any test on the said act was outside the domain of legal audit, and this cure was banished by 42nd Amendment. Later, the fundamental issue for this situation was to check the constitutionality of the 42nd Constitutional (Amendment) Act, 1976.

Judgment

For this situation, the judgment was a choice that gladly confirmed the unique quality of the fundamental system of our Constitution. For this situation, the Validity of Constitution under the 42nd amendment which was bury alia accommodated the prohibition of legal audit of constitutional changes and the Court also held that the Limited amending power of the Parliament is a part of the basic structure doctrine.

 “Our Constitution is established on a pleasant overall influence among the three wings of the state specifically the Legislature, the Executive and the Judiciary. It is the capacity of the Judges nay their obligation to articulate upon the legitimacy of laws,” attested the court.

Conclusion

As a conclusion it might be said that the doctrine of basic structure of the Constitution is an eminent Constitutional concept that has been formally engrafted upon the Constitution by the judiciary through the interpretative processes. The doctrine is well created and it has maintained a balance between the rigidity and the flexibility of the Constitution. The basic structure doctrine is the single most significant factor that has made the survival of our Constitution possible in its pristine form. It has served us well by effectively foreclosing the possibilities of uncalled for tampering of the Constitution, abrogation of the primordial rights necessary for the development of human personality, weakening the hold of Rule of Law and upholding balance between different organs of the State.