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Case Summary

Lalita Kumari vs Government of Uttar Pradesh and Others AIR 2012 SC 1515

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This Case Summary is written by Shruti Singh, a 2nd-year law student at the Faculty of Law, Banaras Hindu University, Varanasi

SYNOPSIS

What is the statutory intent behind codifying Section 154 of the Code of Criminal Procedure, 1973? Is the mandate to register “every information relating to the commission of the cognizable offence” imperative in nature? What remedy is available for the neutrality of the police officer on this issue? Is discretion available to police officers to first ascertain the veracity of the said information? If yes, how would our legal system provide speedy justice when the very stepping stone of putting the criminal law is delayed or denied? If not, is there any probability of one’s infringement of the fundamental rights guaranteed under Articles 14, 19 and 21? As Supreme Court has affirmed earlier in the case of Maneka Gandhi, a law which deprives one’s liberty must be reasonable both from the substantive and procedural point of view. How our legal system functions to make a balance between social interests and individual interests? Whether recording of the information in the general diary will amount to compliance with the mandate of Section 154 of the CrPc? What are the exceptional circumstances where it is justified to conduct preliminary inquiry to avoid fraudulent cases before lodging FIR? 

All surmises regarding the mandatory nature of Section 154 of the CrPc were brought to an end by the Constitutional Bench of the Supreme Court by making a literal interpretation of the given provision and making an outlook of the historical development with which this provision went through. All the issues mentioned above were discussed at length with the aid of the previous judgment of the Court on this issue and constructing the other provisions of our Constitution.

This paper seeks to evaluate the imperative nature of this impugned provision.

KEYWORDS: Every information, shall, cognizable offence, general diary, FIR, legislative intent

INTRODUCTION

Section 154 of the CrPc, 1973 lays down that substance of every piece of information relating to the commission of a cognizable offence given to the officer in charge of the police station shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. The issue regarding ascertaining the mandatory nature of lodging an FIR came before the Constitutional Bench when the concerned police officer denied the lodging of an FIR regarding the kidnapping of a minor child Lalita Kumari. This case came first before the two benches of the Supreme Court, which acknowledged the mandatory nature of Section 154 of the code but further admitted the gravity of the issue; it was ultimately referred to the 5 judge bench of the Supreme Court for seeking clarity on this issue.

This case ended the question mark regarding the available discretion to police officers to make a preliminary enquiry before lodging FIR to ascertain the veracity of the given information, subject to a few special natures of cases which the honourable bench itself illustrated. The bench relied on the first and foremost rule of interpretation, “the literal rule of interpretation,” to reach this conclusion.

My case commentary is an endeavour to analyze the nature of Section 154 of the CrPc in light of the given judgment.

BACKGROUND

In light of the following background, this case commentary is going to be framed:

  • Background of the alleged violation of the statutory mandate
  • Background of the present writ petition

A. Background of the alleged violation of the statutory mandate

One Lalita Kumari (a minor) approached the court through her father for the issuance of the writ of Habeas Court or an order of the like nature against the respondents for the protection of his daughter, who had been kidnapped.

It was submitted that on 11.05.2008, a written report was submitted by the petitioner to the officer-in-charge of the police station, who did not take any action on the same. This callous indifference by the authorities concerned compelled him to approach the Superintendent of Police only after the FIR could be registered. 

Petitioner alleged that even after this, steps were not taken either to apprehend the accused or to recover the minor girl child.

B. Background of the present writ petition

This matter was first heard by the two-judge bench of the Supreme Court. In light of the conflicting decisions of the Apex Court on this issue, the said bench, vide order dated 16.09.2008, referred the matter to the larger bench. Subsequently, a three-judge bench heard the matter in 2012, and ultimately it was referred to the constitutional bench on recognizing that issue in question is of great public importance.

FACTS OF THE CASE

As already in the above section, a minor girl Lalita Kumari was kidnapped, and his father went to register the complaint for the same. The officer-in-charge showed reluctance, and thereby, he approached the Superintendent of Police (Section 154-3), only after FIR could be lodged. However, the Police authorities failed to apprehend the accused and find the girl. The various Chief Secretaries of all the States and Union Territories and Director Generals of Police/Commissioners of Police gave their submissions regarding the issue of disparity in the lodging of FIR across the country. The main issues discussed at length can be enumerated as follows in the upcoming section.

ISSUES FOR CONSIDERATION

  • Whether “a police officer is bound to register a First Information Report (FIR) upon receiving any information relating to the commission of a cognizable offence under Section 154 of the Code of Criminal Procedure, 1973 (in short ‘the Code’) or the police officer has the power to conduct a “preliminary inquiry” in order to test the veracity of such information before registering the same?”
  • Whether the immediate non-registration of FIR leads to scope for manipulation by the police, which affects the right of the victim/complainant to have a complaint immediately investigated upon allegations being made.
  • Whether in cases where the complaint/information 27 Page 28 does not clearly disclose the commission of a cognizable offence but the FIR is compulsorily registered, then does it infringe the rights of the accused.

CONTENTIONS ON THE PART OF THE PETITIONER

  1. Provisions laid down in Section 154 (1) of the code are mandatory as the legislature deliberately used the word ‘shall’.
  2. The word ‘information’ has been used without prefixes like ‘reasonable’ or ‘credible’. Thereby once information is given to the officer-in-charge is given information regarding the commission of the cognizable offence, he is left with no option but to register the same.
  3. There are various adverse impacts of allowing police officers to hold preliminary inquiries before registering an FIR.

CONTENTIONS ON THE PART OF RESPONDENT

1. on receiving information on the commission of a cognizable offence under Section 154 of the Code, an investigating officer has the power to conduct a preliminary inquiry before registration of FIR. (State of Chhattisgarh)

At present, police officers have such discretion in matrimonial, commercial, medical negligence and corruption-related offences. The crime manual of CBI and the police rules prevailing in the States of Punjab, Rajasthan, U.P., Madhya Pradesh, Kolkata, Bombay, etc., lay down provisions regarding conducting an inquiry before registering an FIR. Thereby, holding a preliminary enquiry before registering FIR is legitimate in the eyes of the law.

2. Lodging of FIR without scrutiny would violate the mandate of Article 21 of the Constitution.

Authority of the Maneka Gandhi v. U.O.I (1978) 1 SCC 248 was cited whereby it was held that the expression “law” contained in Article 21 necessarily postulates law which is reasonable and not merely statutory provisions irrespective of its reasonableness or otherwise.

3. Literal Interpretation of Section 154 of the CrPc would reduce the registration of the FIR to a mechanical act.

4. The adequate remedies available on the refusal the registering an FIR are indicative of the legislative intent that the police officer is not bound to record an FIR merely because the ingredients of a cognizable offence are disclosed in the complaint if he has some doubts regarding the credibility of the given information.

The word “shall” doesn’t necessarily mean the absence of discretion in every case.

REASONING

The underlying principles on which basis judgment was delivered can be summarized as follow:

1. The provision empowering the police officer to conduct an investigation (Section 156) is followed by the requirement of registering the information regarding the commission of a cognizable offence (Section 154). This clears the legislative intent that recording the first information should be the starting point of any investigation by the police.

2. There is no ambiguity in the language of Section 154 (1); the first and foremost rule of interpretation “literal rule of interpretation” should be invoked.

3. The use of the word “shall” indicates the legislative intent to make the provision imperative.

The information must be recorded if it is ex-facie that discloses the commission of the cognizable offence.

4. The FIR is to be recorded in the FIR book, not the general diary.

5. The laws made by the Parliament will prevail over the legislature if both are competent to enact the same subject under the Concurrent list to the extent of inconsistency under Article 254 (1).

6. The Delhi Special Police Act, 1956, is protected by virtue of Section 4 (2) and Section 5 of the CrPc.

7. Registration of FIR is mandatory and not the immediate arrest of the accused.

APPROACH OF THE JUDICIARY

While dealing with the facts of the given circumstances, the court was pleased to pass the following directions:

1. Registration of FIR is mandatory under Section 154 of the CrPc if the given information discloses the commission of the cognizable offence, and no preliminary inquiry is permissible.

2′ If the given information doesn’t disclose the cognizable offence but the need to conduct a preliminary inquiry should be conducted. FIR should be registered if it discloses the cognizable offence. In cases where the need is to close the complaint after such inquiry, a copy of the report containing the reasons behind doing so should be furnished within one week. Erring Police officers shall be subject to strict action.

3. Cases where preliminary inquiry is permissible:

  • Matrimonial disputes/ family disputes 
  • Commercial offences
  • Medical negligence cases
  • Corruption cases 
  • Cases with an abnormal delay in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the delay.

List is illustrative

  • The preliminary inquiry should be conducted within 7 days; the reasons behind the delay should be mentioned in the General Diary.
  • General Diary must reflect all the information relating to cognizable offence and the decision relating to initiating cognizable offence.

Judiciary disposed of the reference made to it and asked to refer it to the appropriate bench to decide on merits.

COMMENTS

This comment section will offer an outlook on the gist of section 154 of the CrPc, in light of the above-decided case:

  • Supreme Court has rightly invoked the literal rule of interpretation in this as the clear language asks for ‘every information’ relating to the commission of the cognizable offence to be registered. Even if we take a look at the historical legal development that took place in this regard since 1861, legislative intent is crystal clear in this regard. As it never qualified the term information or complaint, the same has been done deliberately when it found it appropriate to do so like- Section 41 (1-b), the CrPc, 1973.
  • As far as the concern of the infringement of one’s liberty, it would be an exaggeration of the situation, as the code never asked to arrest immediately after registering FIR. However, parallelly one innocent person might be subject to the social stigma. The same can’t be denied. But, it can’t suffice the ground of denying the lodging of FIR, which sets the entire justice system in motion.
  • Fake cases are being registered in number of circumstances like under Section 498-A IPC. The same has been addressed by the Supreme Court in the case of Arnesh Kumar v. State of Bihar (2014) 8 SCC 273, and asked the State Governments to direct the police officials not to automatically arrest when FIR is registered under Section 498-A IPC, unless the parameters of Section 41, the CrPc, 1973 is not fulfilled.

CONCLUSION

This Case of Lalita Kumari v. Govt. of UP & Ors. was a commendable attempt on the part of the Constitutional Bench of the Supreme Court to fill up the loophole of the provision under Section 154 of the CrPc,1973, which primarily arose due to numerous of conflicting judgment given so far. This has been misused and resulted in the disparity in the actual number of crimes committed and FIR registered. However, the Apex Court must also have thrown some light on the speedy remedy that one can avail against such erring police officials, which is unfortunately not rare. Last but not least, this case is a guiding stone for all who are subject to troubles when they aspire to seek the very first resort in the criminal legal system, i.e. ‘lodging of the FIR’.

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Case Summary

M. Siddiq vs Mahant Suresh Das (2019 SCC Online 1440)

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This Case Summary is written by Masab Ahmed Maaz, a 3rd-year law student at the University Of Petroleum And Energy Studies, Dehradun

SYNOPSIS

This case has one of the oldest origins in the history of the Indian legal system and has been in the spotlight of the entire nation for a long time. The case revolves around the religious sentiments of India’s two largest communities and their dispute over a piece of land in the ancient city of Ayodhya. In that case, the Hindu community claimed that the Babri Masjid built by Mughal Emperor Babur was built over the birthplace of Lord Ram. The first communal uprising in the disputed territory occurred in the 1850s, and the British colonial government built a section within the country to resolve the situation. In 1885, Mahant Raghubar Das filed a suit to build a Ram temple in the outer courtyard. The court rejected this plea to maintain peace and order.

FACTS OF THE CASE

On December 22, 1949, the Hindu community placed idols of Lord Ram in the Central Dome, sparking a communal fire that lasted for years. Following suits filed by both communities, the Faizabad Civil Court locked up the disputed area per Section 145 of the Code of Criminal Procedure. However, in 1986, the District Judge of Faizabad Court opened the gates and allowed the Hindu community to worship there. This decision culminated in the demolition of the Babri Masjid by the Karsewaks on December 6, 1992.

The Nirmohi Akhara filed the third suit in this case in 1959. They claimed to be in charge of the temple and its management. The Uttar Pradesh Suni Central Board of Waqf and other Muslims in Ayodhya filed the fourth suit in 1961. Finally, in 1989, the God himself, Bhagwan Ram Lalla Virajman, filed a suit through his next friend, former Justice Deoki Nandan Agarwal. He claimed ownership of the disputed site as well as an injunction.

The Case was transferred from the Civil Court in Faizabad to the Allahabad High Court in 1989. The High Court decided to divide the land into three sections: the inner courtyard for the Lord, the Ram Chabutra and Sita Rasoi for the Nirmohi Akhara, and the remainder for the Sunni Board. However, none of the parties were satisfied with the Court’s decision and thus filed Appeals and Special Leave Petitions with the Supreme Court.

According to the Hindu community, the Ram Janam Bhoomi existed previously and was destroyed by the Mughals after they conquered India, and then the Babri Masjid was built. On the other hand, the Muslims claimed that the mosque was built on a vacant plot of land by Mir Qasim, the General of Babur, per Babur’s orders. On the other hand, the Muslim community did not deny the existence of Ram Janam Bhoomi. They only stated that the Hindu community did not have a proprietary claim. According to the Nirmohi Akhara, the suit was filed in the capacity of the Shebat. A Shebait is a person who serves and manages the Deity and has complete control over the Deity’s property.

The Sunni Board’s main argument was that no deities existed in the area until the idols were placed in 1949. They claimed that they used to pray in the mosque regularly until 1949. Because they used the disputed property for a long time, it would be more advantageous to them. On the other hand, the Hindu community claimed that after Babur invaded their land, now known as India, he destroyed several temples, including the temple in Ayodhya. Since the Hindu community had to face the brutality of their invasion, it was only fair to right the wrongs of the past following the adoption of a constitutional form of just government. They claimed that the land title, which had existed since the twelfth century, would still be valid today. Evidence was presented, including a 1928 edition of the Faizabad Gazette. This gazette acknowledged the destruction of the ancient temple known as the Ram Janam Bhoomi by the Mughal ruler Babur. The Kasauti Pillar and other materials from the destroyed temple constructed the mosque. Even after the destruction, worshippers continued to worship Lord Ram through various symbols such as Sita Rasoi. The suit filed on behalf of the Deity was significant because it was necessary to represent the Lord himself rather than his followers. He would be more concerned with their interests rather than Lord Ram’s.

ISSUES

  • Were the lawsuits filed by Nirmohi Akhara, Sunni Waqf Board, and the Deity himself barred by Indian limitation law?
  • Whether Ram Janma Bhoomi could be recognized as a Juristic entity?
  • Whether Was there a temple that existed in the disputed area? If so, would the Hindu community be entitled to it?

CONTENTION & JUDGEMENTS

 No deities were installed in the Babri Masjid area until the idol was brought secretly on the night of December 22 and 23, 1949. The written statement denies the existence of any deity.  Regular prayers were held in the mosque until 22 December 1949, and Friday prayers until 16 December 1949.  The British government continued the grants made during Babur’s reign for the upkeep and maintenance of the mosque. Even in the absence of an express dedication, the prolonged use of the disputed site as a mosque for public worship elevates the property in question to waqf value. He claimed that namaz was offered in the mosque from its construction in 1528 until its desecration on 22-23. December 1949. As a result, the disputed property was a place of worship. For the plaintiffs 

 Several temples are said to have been destroyed during Babur’s invasion of India, including the one built by Vikramaditya at Ayodhya. He argued that the region now known as India was under foreign occupation during the Mughal era, and Hindus were not allowed to exercise their religious rights. With the adoption of the Constitution of India, the mistakes of the Mughals are likely to be rectified. It was also argued that because the deity’s land was inalienable, the title of the 13th century bearing deities were still legally enforceable. The Faizabad Gazetteer of 1928 supports the claim that the ancient temple known as the Ram Janmabhum temple was destroyed by Babur in 1528, and a mosque was built in its place largely from the materials of the destroyed temple, including the Kasaut pillars. However, devotees continued to worship Lord Ram through symbols such as  Charan and Sita Rasoi and an idol of Lord Ram in Ramchabutras enclosure.  There never was and never could be a valid waqf. Despite occasional crimes by Muslim residents, it has been established that deities who act as carriers have rights of property and ownership. You don’t say pray in a mosque. Proceedings under sec 145, in which the gods of the plaintiff were not parties. The deities were in possession, and all claims of ownership against the deities were void by adverse possession.  Suit 5 was necessary because the Deity was not a party to the previous suits. Furthermore, based on the perception that the existing cases were about the personal interests of the leading parties without protecting the independent needs and concerns of Lord Ram’s Deity, well and truly established in the proceedings of the European Court.

The court went back in time to understand the arguments of both sides. The court said that the current legal system would recognize all previous rights and obligations if previous courts recognized them in some way. Our constitution even recognizes the existence of previous convictions. The Constitution declares that all laws in force before the adoption of the Constitution will remain in force even after the adoption of the Constitution. 

 The court emphasized that the British administration recognized and helped the Hindu community. This relief was due to the installation of the deities of Lord Ram in 1873. The court then dealt with adverse possession. First, adverse possession refers to the idea that anyone without title to a piece of land can acquire it through continued possession. According to the European Court, any basis for adverse possession is a combination of law and fact rather than law alone. 

 Since the Muslim community did not provide evidence of possession of the disputed territory between 1528 and 1860, they did not meet the essential elements of negative possession and thus could not claim it. The court further cited the landmark judgment of Ismail Faruqui in which the Supreme Court ruled that mosques are not an integral part of the Islamic religion. 

 To continue the discussion on the principles of religious secularism, the court referred to another decision of the Supreme Court. It has been noted that Indian secularism is not limited to passive religious tolerance. It also includes active steps to ensure that all religions are treated equally. The court found that the rights of the Muslim community were grossly violated. They felt that the demolition of Babri Masjid was against the rule of law and that violation must be corrected by all possible means. 

 In addition, the court noted that the claim of the fifth action as to whether Deity itself is a legal entity was rejected. The court rejected that argument and noted that when such property receives the status of a legal entity, the disputed property ceases to be immovable property. 

 Regarding the third lawsuit filed by  Nirmohi Akhara, the court noted that the previous judge’s decision never mentioned their rights to the disputed property.  Nirmohi Akhara has not provided any evidence for its claim. Their claim about the Temple as  Shebait was also rejected because they did not claim that Deity was impossible. As the action was brought in their name, it was related to their interests. In sum, their actions were barred by the expiration of the statute of limitations. 

 The belief of the Hindu community that the disputed area is the site of Ram Janam Bhoomi was proven by the evidence mentioned in the Supreme Court’s annexure. After receiving reports from the Archaeological Survey of India, the court continued its demands that the Babri Masjid was not built on empty land but a structure built in the 12th century. Despite many disturbances, the Hindu community also refused to accept the demarcation and continued to worship in the disputed area. As a result, the Hindus held this title when they instituted continuous and uninterrupted worship. 

  The court decided to give the disputed 2.77 acres of land to the Hindus and, at the same time, 5 acres of the mosque land to the Muslim community to uphold the secular commitment of our nation to its people and to compensate the Muslim community for the illegal destruction of the. Mosque

CONCLUSION

There comes a time when reconciliation and resolution outweigh the desire to eliminate injustice. Apparently, the Supreme Court has chosen the direction that best promotes social unity by allowing a temple to come up at the disputed site in Ayodhya through a government-mandated fund.

The court asked for reservation of a five-acre plot elsewhere in Ayodhya that could be used for a modern mosque to replace Muslim rights parties fired for unconstitutionally demolishing the century-old Babri Masjid. Clearly, there is more political reconciliation, moral compensation and less judgment to protect their religious rights.

With a divided political climate, the ultimate prize remains a source of concern for everyone for whom the solution lies in more than maintaining stability. Still, they agreed, the most welcome issue in the five-judge court’s 1,045-page decision. Because it sends the message that the judges fought with one eye to ensure a legal burial for a long dispute that started as a small dispute, developed into a political point of contention and was a festering body-politic wound for years. The fact that the case is effectively closed would greatly help all citizens who value justice.

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Case Summary

State of Jharkhand V. Shailendra Kumar Rai (2022 Scc Online Sc 1494)

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This Case Summary is written by Harsha Singh, a final year law student at Amity Law School, Noida

INTRODUCTION 

In this procedure, two fingers are inserted into the rape victim’s vagina by a medical professional in an effort to “test the flexibility of the vagina” and see if the hymen is ruptured. The test is frequently used to label rape victims as being “habituated to sex.” The medical proof of prior sexual encounters is used to refute the rape allegation, either to imply that the victim lied about the rape, to imply that the rape was not harmful, or to imply that the victim is morally repugnant and hence not entitled to justice.

SUMMARY

The Supreme Court’s ruling in the case of The State of Jharkhand versus Shailendra Kumar Rai stated that anyone who performs a “two-finger test” or per vaginum examination on a victim of sexual assault will be considered guilty of misconduct. In this case, Justices D.Y. Chandrachud and Hima Kohli, in the order dated 31.11.2022, overturned the Jharkhand High Court’s decision and found the respondent guilty of rape and murder under the Indian Penal Code (IPC). The appeal was filed to challenge the Jharkhand High Court’s decision to set aside the conviction and life imprisonment of the respondent under Sections 302, 376, 341, and 448 of the IPC.

BACKGROUND/FACTS

According to the prosecution’s case, on the afternoon of November 7, 2004, the respondent allegedly entered the home of the victim and deceased in Narangi village. It is claimed that he forcefully pushed her down and raped her while threatening to harm her if she made any noise. When she screamed for help, the respondent purportedly poured kerosene on her and set her on fire with a matchstick. Her cries attracted her grandfather, mother, and a resident of the village, who rushed to her aid. The respondent then fled the scene upon seeing them. The victim was taken to Sadar Hospital in Deoghar, where she received medical attention for her injuries. The police received information about the incident and recorded the victim’s statement on the same day. FIR No. 163 of 2004 was registered at PS Sarwna, and the investigation began. After the investigation, the IO submitted a charge sheet under Sections 307, 341, 376, and 448 of the IPC. The victim later died on December 14, 2004, resulting in the submission of a supplementary charge sheet against the respondent under Section 302 of the IPC. The respondent has denied the charges against him.

ISSUES

  • Whether the dying declaration of the victim to the police officer will be admissible under the Indian Evidence Act, 1872
  • Whether The evidence presented by the prosecution has proven, beyond a reasonable doubt, that the respondent is guilty of the accusations.
  • Whether a victim of rape being “habituated with sex” will affect the conclusion of a reported rape case 

CONTENTIONS/JUDGEMENT 

The appellant argued that the High Court misunderstood two crucial facts: first, that the post-mortem examination of the deceased was conducted within 12 hours of the time of death, and second, that Dr RK Pandey was attending to a patient on the table next to them, not in a room adjacent to where they were sitting. Despite these contentions, the respondent maintained that the Medical Board’s report did not offer a solid judgment and that the dying declaration was the only proof that the respondent raped the deceased. However, the High Court deemed the victim’s statement invalid as a dying statement based on a previous ruling in the case of Moti Singh and Anr. V. State of Uttar Pradesh. The High Court’s reliance on this ruling was deemed inappropriate since the post-mortem report revealed that the victim died from septicemia caused by her burn injuries, making the victim’s statement relevant to the events leading up to her death and the reason why she died.

The post-mortem report confirmed that the respondent sexually assaulted the victim before setting her on fire, which ultimately led to her demise. As a result, the dying declaration met the requirements of Section 32(1) and constituted a relevant fact. The prosecution established beyond a reasonable doubt that the respondent was guilty of the accusations. Despite the Sessions Court’s decision, the High Court wrongly acquitted the respondent. Nonetheless, the Supreme Court used its power to uphold the rule of law and reverse the decision to avoid a miscarriage of justice. The respondent was sentenced to life imprisonment under Section 302 and ten years of imprisonment under Section 376 of the IPC. These sentences were intended to follow one another.

FINDINGS AND REASONING 

There was a complete ban on the “two finger” test as it was demeaning in nature, it had no scientific proof, and it wasn’t substantial evidence in any sense. 

Indian Evidence Act, 1872, section 32, although a dying declaration should ideally be recorded by the magistrate if a dying declaration has been made in front of the police, it wouldn’t be inadmissible for that reason alone. It will still be a valid admission.

Indian Evidence Act, 1872 section 375, The question of whether a woman is accustomed or habitual to sexual intercourse is not important in deciding whether the elements of Section 375 of the Indian Penal Code (IPC) are present in a given case.

CONCLUSION/CRITICAL ANALYSIS 

Through their parting remark, the court yet again denounced the “two-finger” test as a way to determine rape in a victim as it proves to be a harmful tool to victim blame, humiliate the victim and question their chastity. The test has been demanded multiple times in India, such as by the Verma Committee formed under the former CJI JS Verma, who was soon after the Nirbhaya case recommended the ban of the “two finger” test, stating that the laxity of the vagina, which is tested by the said test cannot be used to come to a conclusion that a sexually active woman cannot be raped. A handbook on Sexual harassment by WHO has also stated, “There is no place for virginity (or ‘two-finger’) testing; it has no scientific validity.”

In 2014, the Union Health Ministry published a set of guidelines and protocols called “Medico-legal care for survivors/victims of sexual violence.” According to these guidelines, the practice of using the “two-finger test” to determine whether rape or sexual violence has occurred is not acceptable. The size of the vaginal opening does not provide any relevant information about sexual violence cases. Per-vaginum examination may only be performed on adult women when it is medically necessary.

Although a medical examination is crucial for forensic investigation, it is not definitive proof of rape since rape hinges on the consent of all parties involved, except in the case of minors, where consent is irrelevant. The established legal stance is that medical evidence serves only as supporting evidence, as it can only confirm the occurrence of sexual intercourse, whereas determining whether an act constitutes rape is a matter of law.

The guidelines weren’t legally binding, and any act contravening these guidelines didn’t attract criminal prosecution. Then and again, these were ignored, and it was high time for the apex court to make an order regarding the same because not only was this test highly violative, but it also put the laws of our nation extremely backward to let such an immoral practice to still exist.

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Case Summary

RIT Foundation vs Union of India (2022 SCC Online Del 1404)

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This Case Summary is written by C. Risinath & S.Kanimozhi, fourth-year law students at The Tamilnadu DR. Ambedkar Law University, Chennai.

BACKGROUND

RIT Foundation v. Union of India is a case where a series of petitions demanding the need to criminalize marital rape is currently being heard by a bench of the Delhi High Court. The case was filed by RIT Foundation, All India Democratic Women’s Association (AIDWA) and two individuals. The marital rape exception under Section 375 of the Indian Penal Code (IPC) is unconstitutional because it gives primacy to the institution of marriage over the individuals in the marriage.

FACTS OF THE CASE

This petition was filed by RIT Foundation, All India Democratic Women’s Association (AIDWA) and two individuals. The poser before the court was if a husband should be held criminally liable for raping his wife who is not under 18 years of age. The moot point, as per Justice Rajiv Shakdher whether MRE (Marital Rape Exception, i.e., Exception 2 to Section 375 IPC) should remain on the statute. Those who wanted the striking down of MRE, in consonance with the arguments advanced by the said provision qua, also wanted Section 376B to be struck down, which concerns sexual intercourse by a separated husband with his wife, albeit without her consent. Consequently, prayer was also made for striking down Section 198B of the Code of Criminal Procedure, 1973 (‘Code’), which prohibits a court from taking cognizance of an offence punishable u/s 376B IPC except upon satisfaction of the facts which constitute the offence once a complaint is lodged by the wife against her husband.

ISSUES

  1. Could the “social disharmony” and “damage to marriage and family systems” raised by the government in its 2016 affidavit arise or not?
  2. Can the difference between a marital relationship and an act done outside of marriage be considered an “intelligible differentia” under Article 14?
  3. Is bringing the marital relationship within the strict offence of “rape” necessary?
  4. Whether a rape by a husband would also be subject to harsher punishment under the law?
  5. Could someone be charged with “attempted rape” under section 511 of the IPC if the victim is their wife?
  6. In a relationship where there is a sexual relationship, how would evidence of an “attempt” be considered?
  7. Whether striking down “marriage exception” would create a new offence, i.e. will the court need to define the law around what kind of sexual acts or behaviour would fall under “marital rape”? 

CONTENTIONS

  1. The rationale for preserving the marital rape exemption is that recognising marital rape as a criminal offence would destroy the institution of marriage.
  2. In 2019 former Chief Justice of India Dipak mishra said that “marital rape should not be made a crime in India, because it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values’’.
  3. Second, once a woman is married, she hands over-ending continuous sexual content to her husband.
  4. Another argument is that since marriage is a sexual relationship, determining the validity of a marital rape allegation would be difficult. Women may misuse the law in marital rape.
  5. Marital rape exception is inconsistent with other sexual offence which make no such exemption for marriage.Thus a husband may be tried for offence such a sexual harassment, molestation, voyeurism and forceable disrobing in the same way us any other man.
  6. Marital rape exception is an insult to constitutional goals of individual autonomy, dignity and of gender equality.
  7. Joseph Shine v. Union of India(2018), the SC held that the offence of adultery was unconstitutional because it was founded on the principle that a woman is her husband’s property after marriage.
  8. The marital rape exception betrays a similar patriarchal belief: that upon marriage a wife’s right to personal and sexual autonomy, bodily integrity and human dignity are surrendered. her husband is her sexual master and his right to rape her is legally protected.
  9. Article-21 of the constitution of India tells the right to live with human dignity and stands out among the most fundamental components of the right to life which perceived independence of a person.
  10. Supreme court has held in a catena of cases that the offence of rape abuses the right to life and the right to live with human dignity of victim of the crime of rape.
  11. State of Maharashtra v. Madhkar Narayanan, the SC has held that every woman is entitled to her sexual privacy and is not open to any and every person violating her privacy as and whenever he wishes.
  12. Justice K.S. Puttaswamy v. Union of India, settled that the right to make  sexual decisions that envisaged is in the right to privacy.
  13. The marital rape exception prima facie violates article 14 of the constitution as it creates the classification between married and unmarried and women and denies equal protection of criminal legislation to the former.
  14. The UN(CEDAW) convention on eliminating all forms of discrimination against women, which India signed, has viewed that this sort of discrimination against women violates the principle of equality of rights and respect for human dignity.
  15. Kerala high court “Treating wife’s body as something owing to husband and committing a sexual act against her will is nothing but marital rape. Right to respect for his or her physical and mental integrity encompasses bodily integrity and any disrespect or violation of individual autonomy”.
  16. Delhi high court- both men and women had a right to say no, and that marriage doesn’t mean consent.
  17. In Bodhisattwa Gautam V. Subhra Chakraborty, the court held that rape is, to a lesser degree, a sexual offence than a demonstration of hostility for corrupting and mortifying the ladies. Therefore, the marital rape exception principle violates the spouse’s entitlement to live with human dignity.

FINDINGS

  1. As observed by Justice Arjit Pasayat- “While a murderer destroys the physical fame of the victim, a rapist degrades and defiles the soul of a helpless female”
  2. Justice Varma committee, after the Nirbaya case, recommended criminalising marital rape. It opined, “Marriage should not consider irrevocable consent to sexual acts” 
  3. Citing the judgement of the European Commission of Human Rights in C.R. V. U.K, “A rapist remains a rapist regardless of his relationship with his victim”.

ANALYSIS AND REASONING

  • Australia-(1976) made rape in marriage a criminal offence
  • In the USA, between the 1970s to 1993, all the states made marital rape a crime
  • The U.K. struck down its common law principle that a marriage contract implied a woman’s consent to all sexual acts.

CONCLUSION

Marital rape is the most common form of sexual violence reported by married women in India. Among married women (15-49 age) who were victims of sexual violence, over 83% reported their current husbands, and 9% reported a former husband as the perpetrator. There can be no compromise with a woman’s right to sexual autonomy, and any act of rape has to be punished. A married woman has the same right to control her own body as an unmarried woman. The judgement was only a step towards striking down the legislation of marital rape. It’s high time that the legislative body should take cognisance of this legal infirmity and brought marital rape within the purview of rape law by eliminating section- 375 (Exception) of IPC.

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Case Summary

Janhit Abhiyan Vs. Union Of India (2022 Scc Online Sc 1540)

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This Case Summary is written by Saumya Tripathi, an LL.M. student at Symbiosis Law School, Noida

“Caste-based reservations might be substantially eliminated thanks to the new idea of economic grounds for affirmative action established by the challenged amendment”.

~Justice Pardiwala

SYNOPSIS

PARTIES:

PETITIONER: Janhit Abhiyan Akhil Bhartiya Kushwaha Mahasabha; Youth for Equality; SC/ST Agricultural Research and Education Employees Welfare Association; Peoples Party of India (Democratic)

ADVOCATES: Rajeev Dhawan; Gopal Sankaranarayanan; MN Rao; Meenakshi Arora

RESPONDENT: Union of India; Ministry of Social Justice and Empowerment; The State of Maharashtra; Ministry of Personnel, Public Grievances; and Pensions

ADVOCATES: Attorney General KK Venugopal; Solicitor General Tushar Mehta

JUDGES:

Justice Dinesh Maheshwari, Bela M Trivedi and JB Pardiwala, Justice Ravindra Bhat, Former Chief Justice UU Lalit

Reservations have been a contentious topic in the nation for a long time. It was founded with the intention of giving underprivileged members of society access to possibilities that they had previously been denied because of their social standing or societal oppression. The First Amendment gave the government the authority to establish reservation laws for the Scheduled Tribes, Scheduled Castes, and Other Backward Classes. Over time, both proponents and opponents of reservations have emerged. Then the 103rd Amendment was passed, which added 10% of the upper caste’s economically weaker sections (hence referred to as EWS) to the caste’s existing reservations. Given that this reservation exceeded the 50% threshold outlined in Indra Sawhney v. Union of India, the issue of its legality has been raised. The 10% reserve for the EWS Quota was recently affirmed by the Supreme Court of India, which ruled that it did not contradict the Constitution’s fundamental principles and that the 50% cap was “not inflexible” and could therefore allow for the addition of the 10% reservation. 

BACKGROUND

On January 9th, 2019, the Parliament amended Articles 15 and 16 of the Constitution, inserting 15(6) and 16(6) to extend the reservation in educational institutions along with employment opportunities for economically weaker sections of society. This was the One Hundred and Third (103rd) Amendment to the Indian Constitution. Since it was approved by the President of India in 2019, the amendment has been a source of controversy. It permitted the state to create special provisions for those from economically deprived sections of society in both educational institutions and employment possibilities.

However, following the adoption of the Constitution (One Hundred and Third Amendment) Act of 2019, a number of writ petitions and applications for special leave to appeal were made in an effort to declare the aforementioned amendment unconstitutional and in violation of the basic structure concept. Through the insertion of Articles 15(6) and 16(6) to the Indian Constitution, the state gained the authority to impose particular restrictions on reservations for members of the economically weaker class, with a 10% maximum. Additionally, it should be highlighted that the aforementioned reservation is just facilitating in character as opposed to obligatory.

PRIMARY ISSUES INVOLVED IN JANHIT ABHIYAN VS UNION OF INDIA

After hearing from the petitioners and respondents in this matter, the five-judge panel identified the following issues that require resolution:

  • Economic factors cannot be the only ones used to decide whether to grant reserve to a particular group of people and thus violates the constitution’s fundamental principles.
  • It is illogically discriminatory in character and hence contradicts the fundamental principles of the constitution to exclude socially and educationally backward groups (SEBCs), which include SCs, STs, and OBCs, from this particular provision for EWS.
  • Whether or not it violates the Equality Code and, thus, the basic structure theory to deny the benefit of reservation to classes described in Articles 15(4), 15(5), and 16(4) since they are economically weaker sections.

CONTENTIONS RAISED BY THE PETITIONER’S SIDE

  • The 50% reservation cap is broken by the Constitution’s (One Hundred and Third Amendment) Act of 2019. 

The petitioners’ attorneys claim that including a 10% reservation “in addition to the existing reservation” under articles 15 and 16 would violate the precedent established in the instance of Indra Sawhney, where it was eventually by the Supreme Court and numerous High Courts over the course of decades in a number of judgments. Furthermore, unless a statute is protected by the Constitution’s 9th Schedule, the 50% cap cannot be violated in any way.

  • The reservation policy was incorporated into the Constitution to foster an egalitarian society.

The petitioners’ attorneys argued that the entire goal of granting the State the authority to create reservations for the marginalized class of people was to eventually eliminate a society where certain classes of people are socially and educationally disadvantaged. In support of this, it was argued that the Amendment Act violated the Constitution’s fundamental principles by attempting to include people who had never experienced social or educational disadvantage; as a result, this amendment amounted to fraud on the Constitution itself (the M. R. Balaji case was cited as support).

  • Economic considerations cannot be the only justification for a reservation.

The Petitioners’ Counsels have relied on numerous historic decisions to argue that the Legislature erred in recognizing “socially or educationally backward” as a cause for establishing reservation as opposed to “socially and economically backward” when drafting the Amendment Act. Indra Sawhney and the M. R. Balaji case were cited in defending the same.

It was further argued that the purpose of reservations, as outlined in Articles 15 and 16, was to fairly represent castes that weren’t already fairly represented. 

CONTENTIONS RAISED BY THE RESPONDENT’S SIDE

In the current instance, the respondents put up their arguments to prove that the Amendment Act does not infringe upon but rather strengthens the fundamental principles of the Constitution.

  • The 10% reservation would have no bearing on the 50% cap placed on the SEBC.

In defence of the aforementioned claim, the Attorney General argued that as SEBC, SC, and ST already benefit from the advantages of reservation across all fields—including government, public services, and the legislative branch—their rights are not at all damaged. Therefore, it cannot be stated that the rights of a group of people for whom a reserve has already been made have been infringed or that the Equality Code has been broken by such a reservation for an economically weaker portion. The 10% reservation, it was further argued, is an addition to the SEBCs’ current reservation, which already exists.

  • The fundamental framework provided by the Amendment Act is not being violated.

The counsel for the respondents has made a statement that the infringement of Article 14 of the Constitution does not constitute a violation of the Constitution’s fundamental principles in support of their argument that the Amendment Act does not go against that document’s fundamental principles. Additionally, it was argued that the current amendment, which provides economic fairness to Indian inhabitants through the EWS Reservation, does not violate the Constitution’s fundamental principles but is in accordance with them.

  • The right of EWS derives from Article 21 of the Constitution, which guarantees the right to a “dignified life.”

According to the respondent’s attorney, Ms Vibha Dutta Makhija, the right of the EWS, as said by the Amendment Act, derives from their ability to live a life of dignity as envisioned by Article 21 under the Constitution. Additionally, she said that poverty undermines respect and that it is the responsibility of the government to end poverty so that the EWS can live in dignity.

JUDGEMENT

The Constitutional Amendments (103rd Amendment) Act, 2019, was upheld by 3:2 majorities in the “EWS Judgment” decision, which was handed down on November 7, 2022.

UPHOLDING THE CONSTITUTIONS’ (103rd AMENDMENT) ACT, 2019

The Honorable Supreme Court’s five-judge panel ruled unanimously to uphold the Amendment Act’s legality. The petitions contesting the Amendment Act were liable to be dismissed, according to Hon. Justices Bela M. Trivedi, J. B. Pardiwala, and Dinesh Maheshwari, who affirmed that the Amendment Act cannot be said to violate the Constitution’s fundamental principles. Neither does a reservation for EWS members made exclusively on the basis of income disparity violate the fundamental structure, nor does it impair SEBC members’ rights. 

Hon. Justice Bela M. Trivedi has emphasized the Statements of Arguments and Justifications for the Constitution’s (One Hundred and Third Amendment) Bill in support of the above ratio adopted by the Hon. Supreme Court in order to highlight the fact that a sizable portion of the EWS has been barred from receiving a quality education due to their financial incapacity. These people are neither financially able to afford the highest education nor qualified for reservations. As a result, the Constitution has changed appropriately. 

Therefore, if the facts were such that they could reasonably be interpreted to support it, the constitutional amendment would have been invalidated as discriminatory. However, the challenged amendment, which allows the State to establish special provisions for “economically weaker sections” of the population that are not members of scheduled castes or tribes or members of socially or educationally disadvantaged classes of citizens, must be viewed as affirmative action by the Parliament for the good of and progress of the economically disadvantaged population. It would not be possible to treat the economically weaker segments of the citizenry as a separate class as irrational or indefensible or even a betrayal of a fundamental characteristic or a violation of Article 14.

(Justice Bhat and CJI U. U. Lalit also took a similar view and passed a verdict declaring the Amendment Act unconstitutional.)

The Amendment Act was determined to violate the fundamental structure. It was, thus, unconstitutional, according to the minority opinion, represented by the judgment rendered by Hon. Justice Ravindra Bhat and Hon. Chief Justice of India U. U. Lalit.

Regarding the addition of 15(6) of article 15, Hon’ble Justice R. Bhat ruled that it is unconstitutional because it prevents a representation of the socially and educationally disadvantaged and poorest segments of society. Therefore, a clause like that that discriminated against the weak violated the Equality Code. Hon. Justice R. Bhat also ruled that Article 16(6) could be found invalid for two fundamental reasons. First, due to the exclusion of the existing educationally and socially disadvantaged class of people. Second, giving the EWS a reservation under Article 16 was obviously against the Constitution’s fundamental principles because Article 16 addresses a specific community or class’s lack of representation.

CRITICAL ANALYSIS

Reservation has become a topic that deeply impacts every Indian since the Constitution of the nation came into effect, regardless of the caste to which they may belong.  Since the creation of the Indian Constitution, reservation-related policies have been in effect in India. But it’s crucial to keep in mind that the post-independence reservation policies were implemented with the Indian society in mind; specifically, these reservations were implemented to give SC, ST, SEBC, and OBC groups, who suffered from social exclusion, proportionate representation in employment and education. However, the uplifting of the Scheduled Tribes, Scheduled Castes, Socially and Economically Backward Classes, and other backward classes through reservation policies have proven unfair for the upper caste individuals who are not equally wealthy given the changing socioeconomic conditions of Indian societies.

Additionally, reservation rules that favour the Scheduled Tribes, Scheduled Castes, Socially and Economically Retarded, and Other Retarded Classes have always been ill-used for electoral gains, ignoring the reality of India. In order to use the reservation policy for political gain, many state governments, including those of Andhra Pradesh, Telangana, Tamil Nadu, Maharashtra, and others, have been flagrantly flouting the precedent set by the Supreme Court in the case of Indra Sawhney. The Supreme Court has on occasion ruled that these state government measures are unlawful.

Because reserves have never served their intended purpose, the government has correctly grasped the reality of the socioeconomic situation in the nation and passed The Constitution (103rd Amendment) Act, 2019. The government has also ensured that the upper caste group, which has been powerless to represent itself in society, benefits the most from the Amendment Act by excluding the ST, SC, SEBC, and OBC from the EWS quota.

A person who has unfairly benefited from these policies for generations is not permitted to take use of such reservations. The benefit of reserves should only be used by those from the lowest social strata.

CONCLUSION

After comprehending and analyzing the subtleties of the 103rd amendment to the constitution, which introduces reservation for the economically weaker sections of society in Articles 15(6) and 16(6), one may be able to conclude that India still experiences widespread poverty and requires strong measures to broaden the social and economic benefit to every stratum of society. The Supreme Court has construed the amendment in a way that can enable it to achieve the preamble objective of ensuring economic justice for all. In addition, the CJI UU Lalit & J Ravindra Bhat opposing opinion highlights the historical significance of reservation as restitution for people who were invariably discriminated against because of their caste.

Although it is clear from this judgment that both social and economic backwardness exists in society, it is important to note that these two types of backwardness must be considered together for the benefit of society.

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Case Summary

State of Jharkhand V. Shailendra Kumar Rai (2022 Scc Online Sc 1494)

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This Case Summary is written by Neelvi Rai, a 3rd-year law student at the University Of Petroleum And Energy Studies, Dehradun

SYNOPSIS

Rape is a crime against women and against humanity. It is a type of sexual violence that involves sexual intercourse against a person without their consent. It leaves victims with lifelong physical, emotional and psychological trauma. To determine if the victim was sexually active or not, a two-finger test was performed. The pervaginum test, or the virginity test, is used to check the relaxation of the muscles in a woman’s vagina to determine whether or not she is sexually active. It represents the patriarchal thinking of society. In the relevant case, the Supreme Court prohibited the use of the two-finger test for rape and sex crimes, repeating that it re-traumatizes the woman.  The test is based on the assumption that sexually active women cannot be raped, which is factually false and extremely patriarchal. It also has no scientific basis, and the test would be considered abuse. The following case State of Jharkhand vs Shailendra Kumar Rai, is a landmark case indicating the end of a patriarchal and invasive practice.

FACTS OF THE CASE

The accused raped the victim and the deceased on November 7 when he entered the house in Narangi village in 2004. He threatened to kill her. When the victim screamed for help, the accused poured kerosene over her body and set it ablaze. The accused left when he saw her family. The fire was extinguished by the victim’s family, who rushed her to Sadar Hospital. The victim’s health deteriorated over time. While examining the victim’s injuries, a two-finger test was also performed. A notice of indictment required by Section 173 of the Penal Code was filed for the offences committed under Sections 307, 341, 376 and 448. The victim died on December 14, 2004, at Sadar Hospital. The Sessions Court sentenced the respondent to rigorous imprisonment for life for the offence under Section 302 IPC and to rigorous imprisonment for ten years for the offence under Section 376 IPC. The two sentences were meant to follow each other. As a result of that decision, the respondent appealed to the Jharkhand High Court. The court relied on the decision of the Sessions Court under Article 136 of the Constitution of India.

ISSUES

  • Is the deceased’s statement relevant under Section 32(1) of the Indian Evidence Act 1872?
  • Whether the prosecution prove the charges against the respondent beyond a reasonable doubt?
  • Whether a victim of rape being “habituated with sex” will affect the conclusion of a reported rape case?

CONTENTION & JUDGEMENTS

The appellant argued that the High Court misunderstood two crucial facts: first, that the post-mortem examination of the deceased was conducted within 12 hours of the time of death, and second, that Dr RK Pandey was attending to a patient on the table next to them, not in a room adjacent to where they were sitting. Due to her burns, the cause of death was determined to be septicemia. The defendant opposed them, arguing that in this area, no definite assessment could be made based on the medical examiner’s report, although it was reported on the deathbed that the defendant had raped the deceased. The death notice is the only evidence that the accused sexually abused the deceased and that the victim died approximately one month after the alleged incident. Therefore, the deceased’s statement to IO is not deathbed. Part 32 (1) of the Indian Evidence Act 1872 considers the statement of the deceased to be relevant.

According to the autopsy conducted by Dr R.  Mahto, the deceased patient died of blood poisoning caused by burns. The victim’s comment was invalid as a dying declaration, the Court of Appeal reasoned in Moti Singh and another v State of Uttar Pradesh. In this situation, it was alleged that the accused shot the victim. The patient was taken to a hospital, treated for her injuries, and released. He was cremated before death when he died a few weeks after suffering gunshot wounds.  According to the district court, there was no evidence in the documents about the cause of the victim’s death. Therefore, according to sec 32 (1), of the Evidence Law, his comment was not considered a notification of the reason for his disappearance or any other aspect of the incident that led to it. The postmortem report, in this case, reveals that the victim died of blood poisoning due to burns; therefore, the High Court relied on Moti Singh and Another v. The state of Uttar Pradesh is not eligible. Thus, as detailed in the next section, the victim’s testimony, in this case, is indeed related to the events that led to her death and the cause of her death. According to the cause of death report, the deceased’s burns caused septicemia, ultimately leading to his death. According to the testimony of the deceased, the accused poured kerosene on him and set him on fire, causing him burns. In addition, the deceased’s testimony shows that the accused sexually assaulted her before the arson. Thus, the statement of the deceased meets the requirements of the sec 32 subsection and is an important fact. This appeal is considered a dying declaration. The prosecutor indisputably proved the accused in the charges.

The death report shows that the accused sexually abused the victim before dousing her with kerosene and setting her on fire. Septicemia from the burns was what ultimately killed the patient. Therefore, the victim’s injuries caused by the defendant were the immediate cause of the victim’s death. No evidence in the documents could raise the question of the accused’s guilt. The High Court should not have set aside the decision of the Sessions Court. Even though the court often leaves the highest court alone to acquit, its jurisdiction includes exercising its powers to uphold the rule of law and to overturn acquittals when necessary to avoid an error. Based on Sections 173 of the Penal Code, a charge sheet was filed for offences under Sections 307, 341, 376 and 448 of the Penal Code. The victim died on December 14, 2004, at Sadar Hospital. The Sessions Court sentenced the respondent to life imprisonment for the offence under section 30 IPC and rigorous ten years imprisonment for a crime under sec 376 of IPC. The two sentences were meant to follow each other.

The medical committee performed the so-called two-finger test, assessing whether the victim had developed a habit of sexual activity. The court has consistently condemned the use of this retrospective and intrusive investigation in rape and sex crimes. This purported test is not backed by science and does not support or disprove rape claims. In  Satbir v Surat Singh and the State of Punjab, it was held that the two-finger test could not be carried out. To assess whether the elements of sec 375 of the Code of Criminal Procedure are present in a specific situation, it does not matter whether the woman.

In Lillu v. State of Haryana, this Court held that the “two-finger test” violates the right to privacy, integrity, dignity, and rape. In Ramesh v. State of Haryana, this Court noted some of the factors responsible for witnesses turning hostile: _ On the analysis of various cases, the following reasons can de discerned which make witnesses retract their statements before the court and turn hostile: (I) Threat/Intimidation. (ii) Inducement by various means. (iii)Use of muscle and money power by the accused. (iv) Use of stock witnesses. (V) Protracted trials. (vi) Hassles faced by the witnesses during investigation and trial. (vii) Non-existence of any clear-cut legislation to check hostility of witnesses.

“Accustomed to intercourse” or “accustomed to intercourse.” The so-called criterion is based on the false assumption that a woman actively participating in sexual activity cannot be raped. The implication that a woman cannot be trusted when she claims she was raped simply because of sexual activity is patriarchal and sexist. Anyone who violates this court’s guidelines by administering the “two-finger test” to an alleged victim of sexual assault is guilty of misconduct.  The Supreme Court banned the “two-finger test” in rape cases and warned that those conducting such tests would be convicted of a misdemeanour.  Unfortunately, the “two-finger test” is still practised today. The court has repeatedly banned using the two-finger test in cases of rape and sexual assault. The so-called test has no scientific basis. Instead, it re-victimizes and traumatizes women. The two-finger test should not be done. The test is based on the false assumption that a sexually active woman cannot be raped. Nothing could be further from the truth. The evidential value of a woman

CONCLUSION

The two-finger test is inhumane and unscientific; no rape survivor should have to go through it to prove their rape claims. According to doctors and social workers, it is repeated rape of the victim. This violates the victim’s right to privacy and affects his mental, physical and ethical condition. Private and public hospitals must be informed of the instructions of the Ministry of Health and Family Welfare. The problem can be solved by extensive awareness raising and training doctors and police. The two-finger test doctrine is a practice that has been deemed highly unnecessary in the medical field. It violates the right to privacy, dignity and the law, as well as the right of citizens to know what their doctor is doing with their personal bodily fluids or bodily functions.

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Case Summary

Subhas Chandra Das Mushib v. Ganga Prasad Das Mushib, AIR 1967 SC 878

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

Introduction

Plaintiff alleged that his father’s will deed, which conveyed the whole estate to defendant, plaintiff’s nephew, was influenced by undue influence on the donor. The deed, on the other hand, specifies that the property was given out of natural love and affection between the donor and the defendant. The main issue in this case was whether there had been undue influence.

Facts

Prasanna Kumar, the plaintiff’s father, owned land in two villages, Parbatipur and Lokepur, with an eight annas portion in each. Although the actual value of the properties is unknown, it is reasonable to presume that the Lokepur properties, which are the focus of the lawsuit, were the more valuable. Prasanna Kumar, who was almost 90 years old at the time of his death, died in February of 1948.

He had two sons, Ganga Prosad, the plaintiff, and Balaram, the second defendant in the claim, as well as a daughter Swarnalata and an only grandson Subhas Chandra, the first defendant. Ganga Prosad did not have a son. From 1932 until 1934, he worked at the Bankura Medical School. Following that, he worked as a contractor for a year. From November 1944 to November 1948, he was a member of the Searsole Raj Estate. Prasanna and his wife, their two sons and their wives, as well as Prasanna’s grandson Subhas Chandra and Prasanna’s daughter Swarnalata, who had become a widow in her childhood and was living with her parents, made up the family. Balaram appears to have always lived with his father and never worked elsewhere. According to the plaintiff’s own testimony, he was looking after his father’s property so long as he was in Bankura. The Lokepur properties were auctioned off in response to a court order for rent arrears, and Prasanna Benami purchased them under Swarnalata’s name. The gift deed demonstrates that the transaction was made out of the donor’s natural love and care for the donee, as well as the grand-respect son’s and admiration for his grandfather. He was not, according to the complaint. The lawsuit was filed in 1952, more than eight years after the transaction took place and more than four years after Prasanna died. There is substantial evidence that between 1944 and 1948, Balaram, acting as the natural guardian of his son Subhas Chandra, effected a number of settlements of various plots of land in village Lokepur, all of which included the recitation of the Nirupan Patra and the signature of Prasanna as an attesting witness. These agreements were reached in collaboration with Prasanna’s other co-sharers. The Municipal Commissioners of Bankura initiated a lawsuit against Prasanna in 1947 to reclaim unpaid taxes. In that suit, Prasanna made a written statement declaring that he had no interest in the property. The Municipal Commissioners did not serve the plaintiff with a writ of summons in the suit after Prasanna’s death, instead obtaining an ex parte decree against Balaram. The petitioner claims that he never learned about any of the land settlements in Lokepur after 1944, despite attending his father’s funeral in 1948. He admitted to paying no rent to the superior landlords and said that he learned about the deed of settlement from his relatives two years before the complaint was filed, none of whom were called as witnesses.

The following issues are the legal issues or questions of law that were raised in this matter:

  1. Whether the gift deed was induced by undue influence?

Held (Judgement)

The Apex Court firstly proceeded to consider what the essential ingredients of undue influence were and about how a plaintiff that’s currently seeking relief on its ground, after being called upon to show that the deed of gift or the contractual agreement was not induced by undue influence, shall proceed to prove his case. They acknowledge that the case in question consisted of a gift deed but the law relating to undue influence is the same in any case, regardless of a contract or a gift.

The case of Raghunath Prasad v. Sarju Prasad was considered, where the three stages for considering undue influence were explained and the Court had held that

Firstly, the relationship of the parties shall be such where one party is in a position to dominate the will of another.

Once that has been substantiated with evidence, whether a contract has been induced by undue influence is to be determined.

The third stage is that of onus probandi, which means that if the transaction seems to be unconscionable, the burden would be on the person who’s in a position to dominate the will of another, to prove that the contract has not been induced by undue influence.

The Judicial Committee of the Privy Council in the case of Poosathurai v. Kappanna Chettiar stated that while determining the relation of the parties with one another, it shall also be noted that just because the parties were very nearly related to each other does not give rise to a presumption of undue influence. They stated that it would be a mistake to think that undue influence may be proven by showing that the parties’ relationships were such that one naturally relied on the other for advice, and the other was in a position to override the first’s will in offering it. More than mere influence must be demonstrated in order for influence to be deemed “undue” in law. The law on undue influence in embodied in Section 16 of the Indian Contract Act that is based on English Common Law, as noted in the judgement of SC’s Ladli Prasad Jaiswal v. Karnal Distillery Co. Ltd[1]. According to Halsbury’s Laws of England, there’s no assumption of undie influence in cases of gifts to a son-in-law, grandson or son, even if they’re made during a donor’s illness and days before his death. Generally, these presumptions would arise in relationships between a doctor and patient, parent and child, lawyer and client, etc. Sec 16 (2) of Contract Act also shows that an undue influence can also arise where the done has a real or apparent authority over the done or is in a fiduciary relationship with the donor.

However, the Court said that the plaint included no pleading of undue influence as it referred to Order 6, Rule 4 of the Code of Civil Procedure as stressed on in the case of Ladli Prasad Jaiswal where it was observed that a general or vague plea would not serve the purpose of finding out whether case on undue influence has been made out. Rather, the party pleading shall be required to plead the precise and exact nature of the influence exercised, the manner in which it was used and the unfair advantage to the other party. The court found that there was no suggestion in the plaint that pointed to Prasanna being under the domination of Balaram or that he exercised his power in such a way so as to get the document executed and registered by Prasanna. It also stated that the High Court did not find Balram to be in a position to dominate the will of his father nor that the transaction to be an unconscionable one and that it the judges made presumptions which were neither supported by facts nor warranted by law.

The judges of this case held that the High Court’s decision was wrong and cannot be upheld. They also noted how they didn’t think it was necessary for the Additional Solicitor General to argue that the suit was defective because the judges were already of the view that undue influence had neither been alleged sufficiently on the pleadings nor had been substantiated with evidence. And so, the appeal of the Petitioner was allowed and the decree of the trial court as well as the High Court was set aside.

Conclusion

This case in question related to whether undue influence could be considered as the necessity of plea raised in pleadings and it ruled that before examining whether undue influence has been exercised or not, it must scrutinise the pleadings to find out whether all particulars of undue influence have been fulfilled or not and in the instant case, they could not be sufficiently substantiated. Under Section 16 of the Indian Contract Act, the first thing is to prove whether one party was indeed in a position to dominate the will of the other or not. But mere close relationship between the parties does not give rise to a party having an unfair advantage over the other.

Critical Analysis/ Suggestions

The Supreme Court in this case has rightly held that the High Court’s decision was wrong and that it cannot be upheld since the first two stages of determining whether there has been undue influence were completely ignored and not substantiated by evidence in the High Court to prove that Balaram was in a position to dominate the will of his father and nor did the court find the transaction to be an unconscionable one. Hence, the appeal was allowed and the judgement of the High Court was set aside and the decree of the trial court was restored. The respondents also had to pay the appellant, the costs throughout.

[1] [1964] 1 SCR 270

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Case Summary

Tarsem Singh v. Sukhminder Singh (1998) 3 SCC 471

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

Introduction

The Tarsem Singh v Sukhminder Singh case dealt mainly with Section 20 of the Indian Contract Act, which states that an agreement or contract will be declared void if both parties are in error as to a material fact essential to the agreement, implying that both parties must verify the facts before entering into an agreement. The agreement shall be considered null and void if one of the facts is incorrect.

Facts

An amount of Rs.77,000 was provided to the petitioner as earnest money at the time of the agreement’s execution. The respondent filed a suit for Specific Performance against the petitioner because the petitioner did not execute the sale deed in favour of the respondent in accordance with the agreement, despite the fact that the respondent was ready and eager to perform his side of the contract and the trial court decreed the suit. The decree was modified on appeal by the Additional District Judge, who found that the parties to the agreement, namely the petitioner and respondent, both underwent mistakes of fact regarding the area of the land to be sold as well as the price (sale-consideration), which was to be paid per “Bigha” or per “Canal.” The defendant was also said to have neither been ready nor willing to perform his side of the contract, according to the Lower Appellate Court. As a result, the decree for Specific Performance was not issued, but the petitioner was ordered to refund the earnest money of Rs. 77,000. The High Court upheld this decision. The petitioner’s counsel also contended that since the lower court found that the respondent wasn’t neither ready nor willing to perform his part of the contractual obligations in as much as the balance of the sale consideration of Rs. 77,000 was not offered to him by the petitioner, the Lower Court as well as the High Court, that upheld the decree of the Lower Appellate Court, were erroneous in passing a judgement for return of earnest money particularly because the parties had expressly and clearly stated in the contract that if the deed of sale wasn’t obtained by the respondent on payment of the balance amount of Rs. 77,000, the amount that the respondent advanced should stand forfeited.

During the time when the appeal was pending before the Add. District Judge, the respondent made certain changes to the plaint, including:

  • Changing the area of the suit land from 48 canals 11 biswas to 48 bighas 11 biswas
  • He corrected the figure of Rs. 1,56,150 to Rs. 2,35,750 in paragraph 3 of the plaint
  • He also added that this land was mortgaged by the defendant with Canara Bank for Rs. 20,000 and the defendant was to be directed to pay the due amount to Canara Bank or the plaintiff would be authorised to retain the mortgage money.
  • How the plaintiff had met Tarsem Singh in September, 1988 and offered him money to register the sale deed in his favour but he ended up refusing to do so
  • The value of the case for purposes of court fee and jurisdiction would be Rs. 2,40,000 on which a fee stamp is fixed.

The Lower Court found that since the total price of the land as per the amended plaint was Rs. 2,35,750, then according to the original plaint and evidence provided by the respondent, it was very clear that he wasn’t ready and willing to pay the full price to the appellant and that the amount that he had been ready and willing to pay, was before the plaint was amended and that amount was only Rs. 1,56,150. They also held that it was very clear from the original pleadings as well as the amended ones that both parties were under a mistake of fact in as to how much area was to be sold off and whether it was 48 canals 11 marlas or 48 bhigas 11 biswas, thereby making the contract void under Section 22 of the Indian Contract Act. It proceeded to say that it’s very clear that the parties were never ad-idem as to the exact area of land that had to be sold. The decree for the return of the earnest money of Rs. 77,000 paid to the petitioner was issued as a result of the above findings, particularly because the petitioner was found to be under a legal obligation to return that amount, plus interest at the rate of 6% per annum from the date of contract to the date of actual refund. The High Court also upheld these findings.

The question of law that arose in this suit was

  • What is the effect and impact of “Mistake of Fact” on this agreement in contention?

Held (Judgement)

The Supreme Court said that to a limited extent, under Section 65 of the Act, the petitioner, having received Rs. 77,000 as earnest money from the respondent in accordance with that arrangement, is obligated to repay that amount to the respondent. The Lower Appellate Court was consequently correct in issuing a decree for the refund of this money and for these reasons, the Special Leave Petition was dismissed.

The Court discussed about the meaning of “contract” and how according to Section 2 (h), a contract is an agreement enforceable by law whereas Section 2 (g) sets out that an agreement not enforceable by law is void. They also went on to say how it’s not always necessary under law that every contract must be in writing and that oral agreements are also equally binding contracts between the parties unless there’s a law specifically asking for the agreement to be in writing. The essentials of a contract under Section 10 were also discussed in detail that included a) free consent (b) competence of parties to contract (c) lawful consideration and (d) lawful object. Section 20 of the Indian Contract Act provides for an agreement where both the parties are under a mistake of fact to be rendered void. The mistake of fact shall also be in respect of a matter that is essential to the contract. The Appellate Court was correct in saying that the parties were not ad-idem with respect to the unit of measurement because the defendant intended to sell it in “canals” whereas the plaintiff intended to purchase it in “bighas”. Therefore, the dispute was not just about the unit of measurement and was also about the area of land that was agreed to be sold and hence, was a matter essential to the agreement.

It also held that since the agreement was void ab initio, the forfeiture clause would also be void and the petitioner would not be able to legally forfeit the amount and seek enforcement of that clause. The court said that in the present case, they were only dealing with the matter of which one party had received an advantage under an agreement that was void on account if Section 20 of the Act. The court directed the petitioner to refund the Rs. 77,000 to the respondent and upheld the judgement of the Lower Appellate Court and hence, the Special Leave Petition was dismissed.

Conclusion

The Supreme Court referred to many articles of the Indian Contract Act in this case including Section 10-20 and also 73 and 74. It reiterated the point again and again that if the parties are under a mistake of fact as to a matter essential to the agreement, then that contract will have said to be void ab initio i.e. void from the beginning.  It also referred to Section 65 that talks about how its obligation of a person who has received an advantage under void agreement that becomes void, to restore that advantage to the person from whom he received it.

Critical Analysis/ Suggestions

Going about this case, it is very clear from its inception that both the parties had been under a mistake as to what unit of measurement was to be used in relation to the area of land that had to be sold, which was an essential part of the contract between the parties.

Even in the case of Ram Chandra Misra & Ors v. Ganesh Chandra Gangopadhya[1], the Calcutta High Court decided that the agreement entered into, between the parties was void under Section 20, as soon as the mistake has been discovered and the plaitniffs were entitled to receive their money back under a contract that turned out to be void after it was entered into. The Supreme Court rightly referred to Section 65 of the Indian Contract Act, which is based on equitable doctrine that provides for restitution of any benefit received under a void agreement and therefore mandates any person to refund the money or pay compensation to the person from whom he received that advantage.

The Supreme Court was correct in dismissing the Special Leave Petition and upholding the decree of the Lower Appellate Court.

[1] AIR (1917) Cal 786

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Case Summary

Carlill v. Carbolic Smoke Ball Co. (1891-94) All ER Rep.127

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

Introduction

The Plaintiff, believing Defendant’s advertisement that its product would prevent influenza, bought a Carbolic Smoke Ball and used it as directed from November 20, 1891 until January 17, 1892, when she caught the flu.  Plaintiff brought suit to recover the 100£, which the Court found her entitled to recover.  Defendant appealed.Carlil vs carbolic is notable for its curious subject matter and how the influential judges (particularly Lindley LJ and Bowen LJ) developed the law in inventive ways. Carlil vs carbolic is a contract case that is frequently discussed. In this casea medical firm advertised that its new wonder drug, a smoke ball, would cure people’s flu, and if it did not, buyers would receive £100. When sued, Carbolic argued the ad was not to be taken as a serious, legally binding offer. It was merely an invitation to treat, and a gimmick. But the court of appeal held that it would appear to a reasonable man that Carbolic had made a serious offer. People had given good “consideration” for it by going to the “distinct inconvenience” of using a faulty product. The Defendant, the Carbolic Smoke Ball Company of London (Defendant), placed an advertisement in several newspapers on November 13, 1891, stating that its product, “The Carbolic Smoke Ball”, when used three times daily, for two weeks, would prevent colds and influenza.  The makers of the smoke ball additionally offered a 100£ reward to anyone who caught influenza using their product, guaranteeing this reward by stating in their advertisement that they had deposited 1000£ in the bank as a show of their sincerity.  The Plaintiff, Lilli Carlill (Plaintiff), bought a smoke ball and used it as directed.  Several weeks after she began using the smoke ball, Plaintiff caught the flu.

Facts 

  1. The Company published advertisements in the Pall Mall Gazette and other newspapersclaiming that it would pay £100 to anyone who got sick with influenza after using its product according to the instructions.
  2. £100 reward will be paid by the Carbolic Smoke Ball Company to any person who will get caught by the cold or other diseases related to cold after having used the ball three times daily for two weeks, according to the printed directions supplied with each ball.
  3. The plaintiff (Louisa Carlill) believing in the accuracy of the statement made in the advertisement , purchased one packet and used it thrice every day from mid-November, 1891 until 17th Jan, 1892, after that  date she had an attack of influenza. 
  4. After that her husband wrote a letter for her to the defendants, stating what had happened, and asking for £100 as promised in the advertisement.

Issues raised

  1. Was the ad a “mere puff”?
  2. Does performance of the condition advertised in newspaper constitute acceptance of an offer?
  3. Was there any consideration made?

Judgement

The court said that there is no time limit fixed for catching influenza, and it cannot seriously be meant to promise to pay money to a person who catches influenza at any time after the inhaling of the smoke ball. There is also great vagueness in the limitation of the persons with whom the contract was intended to be made. But this document was intended to be issued to the public and to be read by public and the effect of this advertisement was to attract people and make them use it, which would amount to more sales, thus more profit. Based on this intention to promote the distribution of the smoke balls and to increase its usage, the advertisement was accepted as a contract addressing public at large but limited to those people who are using it either for prevention or treatment of influenza and other mentioned diseases.

Defendant’s Appeal was dismissed, Plaintiff was entitled to recover 100£.
The Court acknowledges that in the case of vague advertisements, language regarding payment of a reward is generally a puff, which carries no enforceability.  In this case, however, Defendant noted the deposit of £1000 in their advertisement, as a show of their sincerity.  Because Defendant did this, the Court found their offer to reward to be a promise, backed by their own sincerity. The Court of Appeal unanimously rejected the company’s arguments and held that there was a fully binding contract for £100 with Mrs. Carlill.

Conclusion

The ad was an express promise to pay 100 pounds to anyone who contracts flu after using the ball three times daily, 2 weeks. The ad was not a mere puff because of this statement “1000 is deposited with the Alliance Bank, showing our sincerity in the matter” proof of sincerity to pay. Promise is binding even though not made to anyone in particular. A unilateral offer  i.e. “offers to anybody who performs the conditions named in the advertisement, and anybody who does perform the condition accepts the offer”. The ad is not so vague that it cannot be construed as a promise the words can be reasonably construed. For example, that if you use the remedy for two weeks, you will not contract the flu within a reasonable time after that.

Suggestion 

The advertisement was an offer to the world. It was contended that it is not binding. It was said that it was not made with anybody in particular. In point of law the advertisement was an offer to pay £100 to anybody who will perform these conditions, and the performance of the conditions is the acceptance of the offer. Communication of acceptance is not necessary for a contract when people’s conduct manifests an intention to contract. Unquestionably, as a general proposition, when an offer is made, it is necessary in order to make a binding contract, not only that it should be accepted, but that the acceptance should be communicated but in cases of this kind, it is apprehended that they are an exception to the rule that the communication of the acceptance need not precede the performance. This offer is a continuing offer. It was never revoked, and if notice of acceptance is required, then the person who makes the offer gets the notice of acceptance contemporaneously with his notice of the performance of the condition before his offer is revoked.

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Case Summary

Harvey vs. Facey (1893) AC 552

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

Introduction

Harvey vs. Facey case is one of the important case law in contract law as it defines the difference between an invitation to offer and offer. In this case it is shown that the quotation of the price was held not to be an offer. Its importance is that it defined the difference between an offer and supply of information. In this case it is described that the indication of lowest acceptable price does not constitute an offer to sell, but it is considered as an invitation to enter into any negotiation. The defendants in this case were the owner the land, Bumper Hall Pen. And the plaintiffs were those who wanted to buy that land. The plaintiff sent a telegram to the defendant stating “Will you sell us the Bumper Hall Pen?” Telegraph the lowest price.” The defendants in return telegraphed them “the lowest price for Bumper Hall Pen is £900.” The plaintiffs then sent them the telegraph saying that “we agree to buy the Bumper Hall Pen for £900, send the details of the deeds”.

But then the defendants changed their mind and refused to sell their land to them. So the plaintiff sued them on the basis that the second telegraph sent by the defendant quoting the lowest price was the offer and same had been accepted by the plaintiff, and the contract was completed. But on the other hand defendants said that quoting the lowest price is not an offer which can be accepted. The Judicial Committee if the Privy Council held that the exchange of the above stated telegrams had not resulted in a contract. In the first telegram two questions were asked, first was regarding the willingness to sell the land and the second was about the price for which they can sell their land. And in the reply of this telegraph only the lowest price was sent which cannot be considered as offer to sell. In the third telegraph the plaintiffs agreed to buy the land and asked them to send the details of the deeds, which can be considered that they agreed to buy the land, which means that it is an offer and not the acceptance to offer. As the offer was not accepted so it cannot be considered as binding contract between two parties.

Facts

  1. Harvey who was running the partnership company in Jamaica wanted to buy the property owned by Facey who was also negotiating with the Mayor and Council of the Kingdom of Kingston City for the same property.
  2. On October 6th, 1893 appellant sent a telegram regarding the purchase of property to Mr. Facey who was travelling on the train on that day as he did not want that the property was sold to Kingston City.
  3. Telegram said “Will you sell us Bumper Hall Pen? Telegraph lowest cash price-answer paid.” Mr. Facey replied “Lowest price for Bumper Hall Pen£900.” In return, Mr. Harvey Replied “We agree to buy Bumper Hall Pen for the sum of nine hundred pounds asked by you. Please send us your title deed in order that we may get early possession.”
  4. Then Mr. Facey changed his mind and refused to sell the land to Mr. Harvey, on this basis Mr. Harvey sued him stating that there existed a contract between them and said that the telegram was an offer and he accepted it.

Issues Raised

  1. Was there an explicit offer from Mr. Facey to Mr. Harvey for the sale of the said property for the consideration of £900 and is it capable of acceptance?
  2. Was there a valid contract or not?
  3. Was the telegram advising the lowest price an offer capable of acceptance?

Judgement

The honourable Judges Bench reviewed the total matter of this case and upholding the Justice Curran’s verdict the Lordships held that the Telegraph 1 asks the respondent this willingness to sell the land and what is the lowest price of that land. But the respondent answered only the second part, and his willingness to sell the property was absent in the telegraph and therefore it cannot be expected to be binding upon him. Here the Court asserted that through the telegraph 3 the reply from the appellants cannot be considered an acceptance to the offer to sell them the land. So the respondent acceptance cannot be granted as a valid contract and actually no acceptance through any form was conveyed by respondent. The Privy Council held that there was no contract concluded between the parties. Facey had not directly answered the first question as to whether they would sell and the lowest price stated was merely responding to a request for information not an offer. There was thus no evidence of an intention that the telegram sent by Facey was to be an offer.

Conclusion

A valid contract requires a proposal and an acceptance to it and to make contract binding acceptance of the proposal must be notified to the proposer because a legally enforceable agreement required sureness to hold. This case clearly explains the differentiation between invitation to offer and offer and it also throws a light explaining the nature of the offer as it plays a very important role. A valid and concluded contract requires a proposal and an acceptance of the proposal. To make a contract binding it is necessary that the proposal must be accepted and also the acceptance of the proposal must be notified to the proposer. A mere statement contains no implied acceptance to hold. This is because a legally enforceable agreement requires certainty to hold. Here, in this case invitation to offer is an abstract concept which was realized clearly and expressly and this concept is improvising over the period of time. Now, I must say that the principle of invitation to offer is clearly distinguishable from an offer and it has played a crucial role to understand the nature of an offer.

Suggestions

This landmark case laid down the foundation of the concept “invitation to offer”, where a person barely think about the notion accepting the offer or not. Simply, we can say that when a person has not intimated his final desire to accept an offer, it is an invitation to offer. This clearly express that it is only mere formal proclamation of information on the terms on which the person may be willing to negotiate soon. Lack of consensus ad idem between the two parties is the primary reason for which this is not a complete offer. There was no valid contract between both the parties because in reply of the first telegraph the defendant answered only one of the two questions that is what is the lowest price of land and the answer was 900 pounds and it was only the reply of general information and only the invitation to offer but not an offer.

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