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This article is written by Ritesh Das, a student at Symbiosis Law School, Hyderabad.
In general words, the term contract is a legally binding agreement that acknowledges and regulates the rights and obligations of the parties to that of the agreement. A contract is lawfully enforceable if it meets the essential criteria and requirements along with the assent of the law. The contract is breached when either of the parties fails or repudiates to perform his promise under the contract. The section Section 37 of the Indian Contract Act, 1872 explicitly defines that the parties to the contract are obliged to carry out or offer to perform their respective commitments or promises under the contract, unless they are exempted or excused under the terms of the Indian Contract Act or any other statute. Section 39 of the Indian Contract Act draws out further clarification of this concept by stating that if one party has failed to carry out or deterred itself from executing its commitment in its entirety, the other party may terminate the contract unless that other party has explicitly or impliedly consented to the continuation of the contract. The ramification of breach or repudiation of the contract is elucidated under section 73- 75 of the Indian Contract Act.
Generally, the breach of contract is broadly classified under 4 categories: Minor breach, Material breach, Actual breach and Anticipatory breach of contract. This article will scrutinize and uncoil the concepts and consequences of actual and anticipatory breach of contract.
Read more: Meaning, Nature and Scope of Contract
Anticipatory breach of contract is the failure of either of the parties to conduct their part of the contract prior to the actual due date of the performance of the contract. In simple essence, an anticipatory breach of the contract refers to the lack or absence of intention of either of the parties to fulfil his obligations under the terms of the contract. An anticipatory breach of contract gives birth to the right of claiming damages and compensation to the aggrieved party under section 73-75 of the Indian Contract Act. Broadly there are two kinds of anticipatory breach of contract which are addressed below:
Under explicit repudiation, the party has expressly breached the contract by clearly refusing or being reluctant to carry out its part of the contract prior to the actual date of the contract.
Under implicit repudiation, the party does not clearly refuse to carry out its obligation; rather the failure to perform the promises prior to the due date under the contract is insinuated from his words or actions.
The event of anticipatory breach of contract generally calls for two alternatives to dispose of the breached contract by the aggrieved party:
There are two main criteria that are deemed crucial to determine the case of anticipatory breach of contract:
When the party has rendered clearly regarding his non-performance or non-fulfilment of the part of the duty and the performance is the core of the contract, then the renunciation or failure to execute the contract cannot be subject to any circumstances or conditions. The reluctance would then be absolute.
In determining the magnitude of appropriate refusal of performance of the duties according to the contract, the perspective of a rational and prudent person would be considered while determining the position of the aggrieved party and also the decisions regarding the refusal to be clear and absolute…
The issue of anticipatory breach of contract has been grappled under many cases by the Indian Judiciary. Some of the landmark cases highlighting and elucidating the concept of anticipatory breach of contract are discussed below:
In the case of Food Corporation vs J.PKesharwani[1], it was held by the Supreme Court that if one party made unilateral changes without intimation of the other side and then terminated the contract, this amounted to a breach (repudiation). It may also be clearly argued that any type of contract can be deemed to be breached if the party is reluctant or refuses to comply with their respective promises of the contract regardless of when the performance is scheduled to occur. Such unconditional denial or refusal is known as a repudiation to enter into a contract.
In the case of Aslhing v. S. John[2], the respondent was a party to a subsisting contract with the Government to widen the route and wrote a letter to the Executive Engineer concerned indicating that the contract had been terminated. The appellant argued that the content of the letter had no effect on the termination of the contract. It was argued that the content of the said letter had no effect on the termination of the contract. However, it was quite evident from the details of the letter that the contractor unilaterally dismissed the contract and informed the department concerned, and also resigned from the list of contractors of PWD Manipur. Thus, following this message, the contract was repudiated and recognition by the authority of the message was insufficient for the termination of the contract, although the breach may give rise to suit for damages.
Actual or present breach of the contract alludes to the inability to meet the duties and obligations set out in the contract; implying the actual happening of the failure of performance of the defaulting party rather than mere anticipation. A party may breach a contract in innumerable ways from non-compliance with contractual deadlines to semi-performance or non-performance. Fortunately, choices are available to support the aggrieved party seeking reasonable redress or compensation for his injuries or damage.
In the case of a breach or infringement of the contract, the aggrieved party or both the parties may opt to accept and enforce the terms and conditions of the contract or seek redress for the financial damage arising from the infringement. The matter of conflict over the contract is taken to the court in case of failure of negotiations or informal attempts for solving the conflict. The lawsuit is not the sole choice for businesses and personnel engaged in commercial conflicts. Parties may agree to hire a mediator to review a contract dispute or to use binding arbitration.
Actual breach of contract due to the late performance: It occurs if either of the parties fails to meet the contractual duties and obligations within the specified time period for conformance; the other party is not obligated to fulfil its obligations and can hold the defaulting party liable for the breach of contract. However, the defaulting party may express his or her willingness to proceed in the performance of the contract. In such a scenario, the decision of allowing the defaulting party to execute the contract would depend on the factor whether the time or duration was the crux of the contract. If time is indeed a key element, failure to perform contractual obligations by the prescribed time limit shall be regarded as a breach of contract, whereas if time is just a trivial element, if time is not an essential condition, the aggrieved party may accept performance and claim damages for late performance.
Actual breach of contract during the course of performance: It involves the failure or refusal of the party to fulfil its contractual obligations during the course of its performance. It also arises if the party fulfils its obligations but refuses or fails to conform to the essential terms and conditions of the contract.
In the case of Bishamber Nath Agarwal v. Kishan Chand, [3]It has been held that when an arrangement specifies that a particular act relating to the contracts is to be completed within a given period or manner, it should be performed in that manner or period and the parties don’t have the ‘ right to of performing it in their own way or time.
In the case of Haryanan Telecom Ltd. V. Union of India[4], it was held that one of the provisions of the contracts stipulated that exchanges made beyond the duration of delivery stipulated did not disenfranchise the party of the right to recover liquidated damages, the analysis of all the clauses unveiled that time was the essence of the contract.
There are many penalties for the breach of contract, such as awarding damages, specific performance, recession, injunction and compensation. The award of damages is the primary relief in courts with limited jurisdiction.
If there is a breach or termination of the contract, the innocent party can claim the contract as rescinded and deny further performance. For such a situation, he shall be released from all his obligations and commitments under the contract. Example-R promises S to deliver 5 bags of candy on a particular day. B agrees to pay the price on receipt of the goods. If R failed to supply the goods, then S shall be released from the liability to pay the agreed sum.
The Court may issue a rescission–
If the contract is voidable by the plaintiff
If the contract is unlawful or unconstitutional on the grounds that it is not evident on its face and the defendant is more to blame than the plaintiff.
The term ‘damage’ refers to injuries and the term ‘damages’ means monetary compensation for the loss sustained by the aggrieved party for the infringement of the contract. The primary aim to award damages for breach of contract is to put the affected party in the same financial condition as if the contract had been executed properly.
The expression of ‘Quantum Meruit’ means ‘as much as earned.’ A right to sue a quantum meruit arises where a contract partially executed by one party has been terminated by a breach of the contract by the other party. The right is founded on an implied promise by the other party arising from the acceptance of a benefit by that party.
Specific performance “means the actual execution of the promise. In certain cases, in violation of the contract, the Court may direct the party to the actual fulfilment of the promise, exactly in accordance with the terms of the contract.
The injunction is an order of the Court of Justice which either directs the defendant to act in a positive manner or restricts the commission or continuation of a Prohibitory Act (To alleviate the injury or loss to the plaintiff).
| ANTICIPATORY BREACH OF CONTRACT | ACTUAL BREACH OF CONTRACT |
| Anticipatory breach of contract occurs when a party to the contract expresses his incapability or refusal to perform his part of the contract before the due date of the contract. | Actual breach of contract occurs when a party on the date of the performance of the contract fails or refuses to perform his part of the obligations specified in the contract. |
| In anticipatory breach of contract, the entire contract is repudiated or terminated. | In an actual breach of the contract, the breach can be of condition, warranty or an innominate term. |
| In anticipatory breach of contract, the aggrieved party can rescind or quash the contract and can file a suit for damages without waiting until the due date for the performance of the contract or can wait for the due date set for the performance of the contract and then filing a lawsuit against the defaulting party for the breach of the contract. | In an actual breach of contract, the aggrieved party can only seek redressal by filing a law suit. |
A contract is the source of a specific compendium of rights and duties of the parties that would be of no benefit if there is no contractual provision for redress for damages or injuries suffered by the aggrieved party. Chapter VI of the Indian Contract Act, 1872 allows for the recourse to be rendered to the aggrieved party by means of restitution for damages or injuries suffered by the breach of the contract by the other party. It also allows for compensation for actual damages or injuries suffered by the party in infringement of the contract. Reasonable liquidated damages shall be compensated without evidence of loss. It also provides that in the event of a breach, the contracting parties must agree that the defaulting party shall pay the agreed amount to the other party or may agree that, in the event of a breach by one party, any sum paid to that party shall be relinquished. If it is not a valid pre-estimation of the loss, but a sum expected to ensure the execution of the contract can be considered ‘penalty.’ However, the simple stipulation does not grant the right to compensate through penalty, the evidence must be provided for injuries or damages incurred by a breach of contract.
[1] Food Corporation vs J.PKesharwani, 1994 Supp (1) SCC 531
[2] Aslhing v. S. John, (1984) 1 SCC 205
[3] Bishamber Nath Agarwal v. Kishan Chand, AIR 1990 All 65
[4]Haryanan Telecom Ltd. V. Union of India, AIR 2006 Delhi 339
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Common-Law Admission Test is not just an examination but its a gateway to 22 National Law Schools. If you are on this page u must be aware of the importance of this examination.
CLAT is a national level examination that means one will have to race against the aspirants all over the country desperate to find a way to enter in NLUs. More than 50 thousand students will try their luck in CLAT 2020 But the competition level of this examination can be made easier by following a perfect plan of action and strategies. In this article I will tell you about some of the tips & strategies that can make you crack this exam easily.
Know exactly where you stand and what do you need to get through”Am I ready?” Once you are mentally and physically prepared, you need to know basic things about the examination like eligibility criteria, exam pattern is competing and important dates of examination.
Analyze your shortcomings and strengths to plan your strategy. Accumulate your strategy and utilize them efficiently for best results. It requires strategic pl hard work, careful guidance and loads of practice.
Make a proper schedule for your preparations and divide it well enough into small milestones. Try to do as many precise things as you can and star concentration. Have a time scheduled for each subject. Divide the preparation instead of random preparation. This process is called as helps us focus on all the topics and subjects.
Most of the aspirants’ dreams are washed away by their anxiety. Replace your anxiety with curiosity and channelise your excitement in a positive direction. If possible meditate whenever you get anxiety attacks. This will help you eradicate the mind and you’ll be able to focus much clearly.
The biggest obstacle between you and your success is FEAR. According to most of the successful people who have common law admission test, the best way to tackle your fear is to face your fears. Keep practising the topics that scare you till you become master of those topics. The first step this endeavour is the toughest though the rest can be covered easily!
Students must clear their basic first rather than anything else because most of the twisted questions can only be solved with the help of basic concepts. To strengthen your basic concept go for coaching notes of subjects provided to you nothing else can give you a sound knowledge of basics in case you have not done coaching try to clear your concept through books that contain exact information about the law.
A lot of students study everything even if it is not in entrance examinations’ syllabus. Keep the syllabus of examination on the study table. Check it before you begin and after you end your studies to know how much you need to cover this day.
After having managed your time for each subject, it is important to read the topic subject wise. Instead of reading here and there, a systematic fashion will help you to understand complex topics easily. If we understand the fundamental concepts first, it becomes easy to understand further advanced concepts.
Mnemonics (tricks to memorize easily), can be highly useful to remember long essays, derivations, formulas and other fact-based concepts. A lot of books are available in the market, which teaches mnemonics. This reduces the time for preparation and increases the memory power try creating mnemonics for the provisions of the law dealt in that particular case so that u can save your time in the examination if any direct question is there.
It’s very important that the students must study each and every topic and understand the syllabus well. Never try to think that this might not get a place in the question paper, always remember CLAT or AILET exams can ask any topic from the syllabus that they have prescribed.
Group discussions are a boon in the preparation for law entrance exams. This works very easily, each one from a group knows something and has a unique skill set. While participating in group discussions, everyone shares the knowledge he knows. This small share, in turn, helps all the participants to understand all the topics, which were discussed in group discussion and the chances of making mistake also decreases after this in the final war.
It’s important to test your understanding and skills from time to time. This makes sure that you are at the right path and figures out your weak points. You can take mock test papers from online portals. In this website like Lexpeeps.in will prove you of great benefit. Once you get a good score in these tests, award yourself. This may be anything as per your wish like going to a movie, playing half an hour video game or reading your favourite comics. This not only recharges your mind but also motivates you to do better next time, but remember not to lose the flow u already have.
Our concept here is the practice as much as possible. Let me quote you an example if you want to learn swimming you need to practice that in water rather than reading on how to do the swimming. Taking the lesson from here it is important that how much you have practiced1. Don’t Just Shoot Well-begun is half done, so start professionally, with a cool head. Read the question properly and try to understand it. If you have understood the intricacy of the questions, then half of the job is done. The paper which starts well ends well too. Never try such questions in which you are not sure of the right choice because there is negative marking in the examination.
Practice, practice and practise is what you need. There are no shortcuts to success. All you have to do is practice. Study but an objective approach to the subject is mandatory nowadays. Have a clock on your table and try to solve the sample paper in the given time. Learn to coordinate with the clock. If you are serious about entrance examination, act like you are. Raise hand Always ask your doubts to your teachers and other senior persons, never be feel ashamed in asking the doubts. If you carry on your studies with doubts in your mind then you are surely going to have a lot of stress in your mind which will finally start to deviate your mind from the study. So, don’t keep any doubt in your mind, if you have any then clear the same immediately.
Try to fill the empty spaces i.e. read, recite, and memorize the concepts/formulas while eating, waiting and travelling etc. Breathing exercises should be included in this regime in order to relieve the stress and be ready for intellectual challenges. Food is also a very important aspect that needs to be taken care of when preparing for entrance examinations. Stay away from fried, fatty and high sugar foods and eat more fresh fruits and vegetables. Drink water or energy drinks as much as you can.
Never lose your heart: If you find the question paper is not up to your expectations, do not just give away. Put all your acumen and energy to get the best out of it.
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This article is written by Sharat Gopal, pursuing BA.LL.B from GGSIPU. This article discusses about “Burden Of Proof” and its application in the Indian Judicial system with case laws.
Let us understand this with an illustration as B is booked for theft for stealing A’s gold chain. B denies this accusation and claims that he was attending his friend’s wedding, but for proving this in court, B must provide sufficient evidence to the court which proves that he was at the wedding. If B won’t provide sufficient evidence in court, B will be convicted for theft. This legal burden placed on B’s shoulder is known as “burden of proof”. Burden of proof is more of the time on the person who brings the claim in the dispute. “ necessitas probandi incumbit ei qui agit” is a legal maximum which states that the necessity of proof always lies with the person who lays charges.
Evidences are the major factor that decides the faith of a case. Cases are won and lost on the bases of evidences provided. Law of Evidence is an important piece in the court proceedings, as on the basis of evidences, cases are decided. Judgments of cases are totally depended on the evidence provided in court.
The term “Evidence” is defined in section 3 of the Indian Evidence Act 1872. It states that “Evidence” means and includes:
This is the definition of evidence explained under section 3 of the Act. It states that there are 2 types of evidence, oral and documentary evidences. These 2 types of evidence must be produced before the court for proving or disproving their arguments. The court analysis these evidences for giving a fair and just judgement.
“Burden of proof”, in simple terms means the duty places on one to prove or disprove a fact which is in question. As it is explained in the above example, where B had the burden to prove that he was at his friend’s wedding when the theft happened. In criminal cases, it is normally the prosecution who has the burden of proof, but in some cases it is shifted to the defendant as in the explained example, to prove his innocence. In civil cases, the burden is usually on the plaintiff to prove the claim, but in some, in some cases, it shifts to the defendant.
Burden of proof works on 2 principles, “Onus Probandi” and “Factum Probans”. “Onus Probandi”, in simple terms means the obligation of a party to provide sufficient proof for their position in a dispute. “Factum Probans”, means a fact or a statement of facts which are offered in as evidence as proof of another fact.
“Onus” is the liability and burden which can shift between parties in different circumstances.
Sections in the Indian Evidence Act covering the concept of Burden of proof-
In the case of Jarnail Singh Vs State of Punjab [AIR 1996 SC 755], it was held that in all criminal cases, the prosecution has the responsibility to prove the crime committed by the accused beyond all reasonable doubts. It can’t depend on the evidence brought by the accused for defence. The prosecution cannot rely on the evidence brought by the accused, and it must have its own evidences.
It states that the burden of proof will lay on the person who will lose if no proof or evidence is provided in the dispute. Eg, A and B were in contract with each other. B goes to court demanding that, A had obtained B’s consent by fraud. Here B will have the burden to prove the fact that, A fraudulently took B’s consent. If B will not prove this fact, the B will lose the case.
In the case of Dinabandhu Mondal v. Laxmi Rani Mondal [AIR 2019 Cal 232], the high court held that the plaintiff failed to provide any evidence to support their charge and the burden of proof was on the side which will fail in evidence is not provided. The court also said that the respondents had imposed the allegations of fraud against the appellants, hence the burden of proof was on them to prove them negative.
In the case of Kovvuri Venkata Rama Reddy Vs Mandru Ganga Raju [Criminal Revision Case No.704 of 2018], the Andhra High Court held that the plea of alibi is concerned; the burden heavily rests on the accused to prove it.
In the case of Eshwaraiah And Anr. vs State Of Karnataka (1994), a man and a women were found hiding under the bedroom of a person who died with grievous injuries. Here the burden of proof was on the woman and man that why were hiding there.
There are other sections too which talk about the burden of proof in specific cases like that in section 107 which talks about the burden of proving the death of a person who was alive within 30 years, section 108 talks about the burden of proving person alive who has not been heard for 7 years, section 114 A which states that if women assert that it was non-consensual sex, then the court will honour the claims of the women, etc.
The burden of proof simply states that whoever has to make a claim before the court must have sufficient proof to prove it for having the judgement in their favour. For making claims, a person must have sufficient evidence to prove the facts in his favour. And this duty is passed to both the parties as the circumstances are. It strengths the judicial system of our country as it lay down general rules that must be followed by all while bringing a matter to court. This helps to provide justice and equality while giving judgements on the cases.
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This post is written by Anushree Tadge, 3rd year law student of ILS Law College, Pune, she tries to explain briefly what are the different kinds of business structure, how one can incorporate and why doing so will be beneficial.
With the rise in entrepreneurship throughout India the efforts for creating more awareness for structuring businesses has to be made. People are expected to incorporate their companies under the Companies Act, 2013 and follow guidelines of Companies (Incorporation) Rules, 2014. The business structure one chooses affects the risk taken by a particular person and leads to difficult paperwork. Incorporation of a company not only guarantees one’s personal assets in cases of financial problems, but it also offers other benefits too.
Before registering a company, one has to carefully choose amongst the different business structures briefly explained below.
It is the easiest and cost-efficient system of having a business in India. If a particular individual owns as well as manages the company without much external help then this type of structure is called ‘Sole proprietorship’, for example, small traders and even shop owners.
This is very similar to sole-proprietorship, whereby a single person could start the business. Now there is no actual distinction between the owner and his business in the case of a sole proprietorship, although his type of company helps a person protect his assets more and limit his liabilities. This means all personal belongings & accounts (banks) are protected from financial/ business losses that are likely or unlikely to occur.
This is the most common type of business taking place in India. 93% of companies are registered as a ‘private limited company’. This kind of structure needs a minimum of two shareholders & directors. People who tend to initiate with startups but have expansion plans in the near future choose this particular structure.
LLP is a popular form of business structure for areas like ‘consulting services’ and ‘professional firms’. In this form, partners have some limited liability on one individual basis and a reduced compliance burden than of a private limited company.
By virtue of the SPICe form (the new company incorporation form) launched since 15th February 2020, The Ministry of Corporate Affairs plans to reduce the time as well as the cost it takes for a person to register a company. It is comparatively a convenient process than the previous one. Conventionally to incorporate a company following steps were to be followed-
Under the Companies Act, 2013 following steps for incorporation are to be followed-
• Firstly, in order of suitability, one name upto a maximum of six names, (showing the main functions/ objects).
• One has to make sure that name does not look similar to or resemble the name of any other already established company by using the services of checking name availability
• Apply to the concerned Registrar of Companies (RoC) and subsequently an eForm1 A is to be filled by logging in to the website. A nominal fee of Rs. 500 is to be paid and the digital signature of the applicant has to be noted.
• Once the name of the company is approved, applicants can successfully apply for registration now. This has to be done within 60 days of name approval.
The registration procedure starts with the filing of Forms – 1, 18, 32.
It is followed by the drafting of the ‘memorandum’ and articles of association by the solicitors, vetting and printing of the same RoC. The memorandum has to be duly signed and appropriate stamp duty is to be paid. The memorandum and articles, both should be signed and witnessed. Please confirm that the memorandum is post-dated. Again, the portal should be logged into and forms are to be filled (names of which are provided below) and mandatory documents are to be attached-
Form 1 which is the Declaration of Compliance.
Form-18 which is the Notice of situation of RoC
Form-32 which is the Particulars of the Director(s), Manager or the Secretary
After successfully submitting the above-mentioned forms, attach the digital signature, complete the payment of filing and registration fees. After the form is successfully processed and completed, the Corporate Identity is generated in order to obtain the ‘Certificate of Incorporation’ from the Registrar of Companies.
With SPICe Form INC-32, incorporating a startup takes not more than two days.
The first step is the application for DIN, it is an eight-digit number, provided by the Ministry of Corporate Affairs (MCA). Now, this number is person-specific and unique. So if one is to hold the directorship of two companies, another DIN for the other company is not required. Proof of Identity and Address Proof are the necessary requirements for DIN Application.
In case of a new company, application through the SPICe form (Simplified Proforma for Incorporating Company Electronically) is possible
It is of similar standards to a handwritten signature, DSC authorises the holder to:
The Ministry of Corporate Affairs has made the procedure very convenient with the introduction of SPICe Form INC-32. SPICe is a one-way destination for the application, for reservation of name and for the incorporation of a company. The form is easy and accessible, a person can read and fill it accordingly, also attach documents and the process will finish within two days.
Once the process is completed and the company is successfully registered, The Ministry of Corporate Affairs issues the ‘Certificate of Incorporation’ with a unique ‘Corporate Identity Number (CIN)’. This certificate is the only document which proves a company’s registration with the Registrar of Companies (RoC). After the successful incorporation of the company, a PAN and TAN (for TDS filing) both are allotted and dispatched to the provided address of the registered office. With this, the company incorporation procedure ends and details of the newly incorporated company can be viewed on the MCA website.
Since incorporation is not compulsory, people often avoid it but these few perks should be taken into account while making such a decision.
An incorporated company is a unique legal entity altogether that is itself responsible for all the operations. In cases of financial losses or even bankruptcy, the owner’s private assets are protected.
It is easy to avail loans from banks in case business is incorporated. An incorporated business is more credible with respect to business purpose and overall capital structure. Investors and equity funds are usually more interested in supporting companies which are incorporated.
By incorporating a company, the ‘existence’ of the company is confirmed and it continues to irrespective of the individuals regulating it. An incorporated company is regarded as way more credible than one not incorporated in the eyes of lenders, customers and suppliers. It indirectly shows how serious one is regarding his/her business.
With the newly launched SPICe Form, the government has made it very convenient for businessmen to successfully complete the incorporation procedure on their own. It is advised and strongly recommended by professionals like a CA, CS or any other equivalent to incorporate. Their help can also be taken in case any difficulty is faced while completing the procedure.
The article is written by Naman Jain, studying BBA-LLB at Bennett University, Greater Noida.
The aim of the article is to analyse the various powers of the states and the union to minimise the ambiguities being faced when both of them are practised simultaneously. The landmark problems related to misuse of the power has been briefly discussed providing a nutshell solution to the above problem.
Federation is a system of government which seeks to reconcile national unity with local autonomy.
Our country India is a federal country and therefore the powers and the functions are divided among the Centre and the state as mentioned in the 3 lists under schedule 7 of the constitution. These legislative powers of the union and the state as mentioned in Art.245-254 have to be practised without the contravention of fundamental rights of the citizens.
Analyzing the constitution makes it evident that the central powers are more dominant over the state powers as stated. But the actual concern is that some of the power of states have been acquired by the Centre and has led to an irregularity in the trend as stated in the constitution. Therefore, it is crucial to reconsider the provisions regarding the same in our legal system.
Following the pattern of Government of India Act,1935 for distribution of the powers, dominance has been given to union parliament over the state legislatures.
Art. 245 of the constitution deals with the ambit of territorial jurisdiction of the union and the state legislature. The power of the union to make laws for any territory in the country and the state legislature laws being confined to its particular state give rise to the theory of TERRITORIAL NEXUS.
In the case of Republic of Italy Vs Union of India[i], the ambiguity in the authority of powers between the state and the union is clearly evident. The issue revolves around whether the jurisdiction to prosecute the Italian convicts rests with the Kerala govt. or the Central govt. In accordance with the Maritime Zone Act, there is a provision that the central govt. has powers to prosecute the convicts found in contiguous zones of the sea water by setting up a special court for the purpose. In spite of such clear stated rules and regulations in the various special acts and the standard laws, Kerala Govt intervened in the prosecution process which led to a rigorous proceedings schedule taking up years to reach to a final conclusion. The ambiguities that got created while dealing with the constitution and IPC in accordance with the special laws are natural but should be minimized to improve the justice delivery system. Every case sets a precedent for the suitable implementation of laws in the future.
According to Art. 246 of the constitution, the parliament has exclusive power to make laws for any territory of the country including all states with respect to all the items contained in 3 lists. If the two different states have two different legislatures regarding a particular thing, then they cannot be read either in conjunction or in comparison to determine whether they are discriminatory or not as held in the case of State of MP V. GC Mandawar[ii].
There has to be some overlapping between the items mentioned in the 3 lists to remove the ambiguity of determining the sphere of government (union or state) they lie in.
To interpret the respective powers as mentioned in the lists, the Supreme Court had given some principles as mentioned below-
Plenary power of the legislature– This allows the legislature with absolute power to enact laws subject only to its legislative competence and other constitutional limitations. The absolute power to make amendments to the future as well as the past acts, removing the effectiveness of any current or previous law lies within the parliament. The limitation to this lies with the impugned laws passed by the state legislature which the parliament cannot even validate.
If the legislation is made by the legislature beyond its competence and the constitutional powers, it is said to be a law transgressing constitutional limitation and is ultra vires or void termed as colourable legislation.
Further, according to Art. 254 of the constitution, if there is any ambiguity or repugnancy in any of the provisions made by the union to that of the state legislature, then the union government legislation shall always prevail provided the items being dealt are of concurrent list. Only if the state legislature is made in repugnancy to older parliamentary legislation and has received the assent of the president dealing with a concurrent list, then the state legislation shall prevail. Moreover, the parliament has the power to make a new law regarding the above state law passed by the assent of the president.
Some subjects intended to be in state jurisdiction are held with central powers such as industries, universities, inter-state and rivers. Further, the power to legislate any subject not mentioned in any of the lists lies with the union within the ambit of Art. 248 of the constitution. Under any of the emergencies, it is the union who has the full authority to practice the powers of the state legislatures over the whole territory to make the laws abiding by the orders of the president. Two or more states can collectively come and make common laws for themselves after being approved by the state legislatures as well as the parliament. The power to amend such law still rests with the parliament in the future.
The parliament has the absolute power to make any law, convention or a treaty for the whole country, but it has to be in constitutional limits i.e. not violating any of the fundamental rights of its citizens according to Art.253 of the constitution.
Parliament has the absolute authority over the union territories where this distribution of legislative powers does not apply.
Conclusively, the central government has the power to make laws for the whole country related to every subject except those mentioned in the Art.264(4) i.e. state list. Further in exceptional cases of emergencies, this power within the hands of central becomes absolute covering the state list subjects as well. Indian Constitution has unitary skin and behaves as one at time of disaster.
The crucial and a complex ingredient in the centre-state relation is the role of the governor. According to Art.155 of the constitution, the governor is appointed by the president in confirmation with the various cabinet ministers. The controversy is within the procedure of this selection which is not followed in the actual sense.
Dr. B.R. Ambedkar introduced the parliamentary system both for the Centre as well as the states. In accordance with parliamentary democracy, the Governor is ordinarily a constitutional head acting on the advice of the Council of Ministers elected mainly by the president. At the same time, the constitution visualizes situations where he is to act in his discretion and not, on the advice of the Council of Ministers. Moreover, what is his discretionary field of activities is also left to the governor’s discretion. The powers of the governor are mentioned in Art. 356 of the constitution.
In the landmark case of S.R.Bommai Vs. Union of India,[iii] the Court observed that the decision of the President to impose President’s rule in fact is a decision of the centre which comes to the President in the form of advice. Further, the advice can be questioned and thus the imposition of the rule can be reviewed by the judiciary. Since this case, the attitude of the ruling party has greatly changed showing a good remark regarding centre-state relations. In 2001, it was finally agreed that while appointing the Governor, the parliament will consider the views and wishes of the concerned state government.
Our country has witnessed the misuse of the powers of the governor violating the Art.356 quite a no. of times in the country’s past. The most famous case of Indira Gandhi[iv] was witnessed in 1977.
Mrs. Indira Gandhi got removed from the power by a negative vote against Congress in 1977 and was put behind the bars. It came to limelight when the Janata experiment in Delhi failed due to intra-party and inter-party feuds. Political ambitions of some leaders prevented the government from losing credibility and another mid-term poll was imposed on the nation in January 1980. Indira Gandhi was back in power by 1980 after a positive vote.
The way in which Indira Gandhi ruled at that time was an act of political vengeance. The Janata Party developed a new political thesis after coming to power. Immediately after Lok Sabha elections, the new ruling party thought of dissolving the state assemblies of nine states from where the Janata Party returned to Lok Sabha with a throbbing majority. Keeping in view these aims and objectives, the Union Home Minister Mr. Charan Singh ordered the Chief Ministers of nine states to resign from their government to facilitate a fresh election for the State Assemblies. As the Congress CMs of these states refused to comply with the advice of the central. So, the union government unilaterally dissolved the State Assemblies and imposed President’s rule in nine states abruptly, namely Bihar, Haryana, Himachal Pradesh, Madhya Pradesh, Orissa, Punjab, Rajasthan, Uttar Pradesh, and West Bengal.
In 1980, Mrs. Indira Gandhi returning to the power, and a retaliatory action seeking the same guidelines led to the dissolution of nine State Assemblies – Gujarat, Haryana, Madhya Pradesh, Maharashtra, Orissa, Punjab, Rajasthan, Tamil Nadu and Uttar Pradesh- where Janata Party or its associates failed badly in the election.
In the case of other dissolutions and imposition under the president, the same vexed issues of political defection, leadership crisis, factionalism and breaking up of political understanding came up for action. The mass dissolutions thus became eye-raising issues which the constitution had never suggested.
The states are highly dependent on the union for the resources due to the restriction in the taxation sector. The dependency of the states “upon the union for allocation of funds from and out of the taxes collected by it” makes the union dominative. Though there is little control of the union over the financial resources earmarked by the constitution for the states, yet, the union is always in a position to bear indirect pressure upon the States. The union being authoritative can always persuade the state to take its advice.
Above all, the way the central leadership treats the states while giving funds is often a source of reaction from the states creating inter-relation problems.
It is regarded as the most serious constraint upon their autonomy. The states ruled by coalition parties in power at the centre often complaints of discretionary and step-motherly treatment in matters of funds allocation and grants-in-aid giving. In the past, many of the leaders of regional and local parties, as well as the leaders of CPI (M), BSP had voiced against the discriminatory treatment towards their ruled states by the Congress at the centre power. The use of the superior financial power of the centre for partisan ends by the party in power remains a perpetual complaint of the state governments all over the country.
All the above discussed have been the major issues and dilemmatic areas
in the Union-State relations. These have led Indian federation, develop
conflictual and confrontational character. The objective of cooperative
federalism as proposed by Dr. B.R. Ambedkar had suffered a setback in the face
of Centre-State conflict over the above-mentioned issues and areas. While there
are some subjects in the demands of the states, one cannot ignore irresponsible
behaviour on the part of some states which are mostly ruled by regional
parties. Likewise, the instances of political and partisan use of
constitutional provisions of the central leadership must not be overlooked.
Both the union and states must accept cooperative federalism and ingrain a
spirit of mutual accommodation on matters of national and regional importance.
[i] Republic of Italy v Union of India, (2013) 4 SCC 721
[ii] STATE OF MP v. GC MANDAWAR AIR 1954 SC 493
[iii] S. R. Bommai v. Union of India. S. R. Bommai v. Union of India ([1994] 2 SCR 644: AIR 1994 SC 1918: (1994)3 SCC1)
[iv] State of Uttar Pradesh v. Raj Narain (1975 AIR 865, 1975 SCR (3) 333)
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This Article is written by Karthik Varun pursuing B.A. LLB (Hons.) from Saveetha School of Law, Chennai. In this article, he has discussed the hotly debated question of whether Hindu marriage is a Sacrament or a Civil Contract by analyzing Sacred texts, Statutes, and Precedents.
Among Hindus, it is well known that Marriage is an essential deed without which the person is only half.
[i] A wife in Hindu Marriage is perceived not only as a companion in the pursuit of dharma, Artha, and kama but also of moksha. Manu also remarked that the husband is declared to be with his wife spiritually.
[ii] So, this is enough to argue that Hindus from time immemorial viewed marriage as a sacramental union that is permanent, indissoluble, and eternal.
[iii] So one may ask, why is it still disputed that it is a contract? There is value to this question but at the same time, there are also sufficient interpretations of Law to justify that Hindu Marriage is a contract in the eyes of Law. Firstly let us see some interpretations of law highlighting that Hindu Marriage is only a Sacrament.
A Hindu marriage is considered a religious sacrament mainly because only when religious rites are done it would mean a valid and complete marriage. Saptapadi, home, panigrahana are to be performed by a Brahmin with Agni Devata taking cognizance of the rites. If this is not done then the legal validity of the marriage may even be questioned.
A combined reading of Sec. 5, 11, and 12 of the Hindu Marriage Act makes the readers understand that consent is not an essential part of the Hindu marriage. Clause 2 of Sec. 5 of the Hindu Marriage Act deals with the mental capacity of the parties. It very clearly states that neither party must be incapable of giving valid consent. Also, clause 3 of Sec. 5 provides that the bridegroom should have completed the age of twenty-one years and the bride must have attained the age of eighteen years at the time of marriage. Interestingly the provision Sec. 10 and 11 of the Indian Contract Act, 1872, states that contract by a minor or an incompetent person is void.
All we expect is that when put according to Contract Law terms, a Marriage with a person of unsound mind or less age must be void. But that is not the case. According to Sec. 12 of the Hindu Marriage Act, a marriage of a minor or unsound person is voidable and not void. With this, we can argue that since the Hindu Marriage Act does not even follow the legal principle enshrined in the Contract Act, Hindu Marriage does not stand a chance to prove itself as a Contract.
Our Courts have been clear about the position of the fact that Hindu marriage is a sacrament only. Let us look at some of the very famous interpretations by the Court in this regard.
The Court in Tikait v. Basant [iiii], held that marriage under Hindu Law was a sacrament, an indissoluble union of flesh with flesh, bone with the bone to be continued even in the next world. In Shivonandh v. Bhagawanthuma [v], the Court observed that marriage was binding for life because a marriage performed by saptapadi before the consecrated fire was a religious tie which could never be separated. Also. the Calcutta High Court observed that a Hindu marriage is “more religion than secular in character”.[vi]
This finally leads us to the recent Judgement by Delhi High Court in 2017 which observed that Marriage under Hindu Law is a “sacrament” and not a contract that can be entered into by executing a deed.[vii] This was observed by Justice Pratibha Rani while dismissing a plea by a woman who had challenged an order refusing to declare as the legally-wedded wife.
Many scholars both ancient and modern have taken the view that a Hindu Marriage is not only a sacrament, but also very clearly a contract.[viii] This same observation was made by our courts in various instances. We now will look into some of them.
The Court in Muthusami v. Masilamani[ix] observed that: “A marriage, whatever it may be a sacrament or institution, it un-doubtfully is a contract entered into for consideration, with co-relative rights and duties”. In Purushottamdas v. Purushottamdas[x], the court observed that “Marriage of Hindu people is a contract made by their parents”. Even when the doubt of whether it is fully sacramental arose, the Court did not hesitate to extensively refer to old scholarly books[xi] to interpret the position. In Bhagwati Saran Singh v. Parmeshwari Nardar Singh[xii], the court quoted Macnaghten’s Hindu Law, Starnages Hindu Law, and Vyawastha Chandrika and finally expressed the opinion that Hindu marriage was not only a sacrament but also a contract. Further, the Calcutta High Court observed in Anjana Dasi v. Ghose[xiii], that suits relating to marriage deal with that which in the eye of the Law must be treated as a civil Contract, and important civil rights arise out of that contract.
Also, there is a reference by Manu that there is a gift of the bride. This is what is called Kanyadan. Kanyadan fulfils the requirement of a gift under the Hindu Law. Hence, it is a Contract.
To read more about the nature of marriage under Hindu law click here
Thus it is very clear from the above arguments that the Hindu Marriage Act does not consider the question of consent as of much importance. Is it then possible to call it a Sacrament then? To answer this we can test the three qualifications of a Hindu Marriage as provided in the Introduction. First qualification being ‘permanent’, the second being ‘indissoluble’ and finally, the third requirement is ‘holy’.
The first requirement was destroyed by the recognition of HMA. The Widow Remarriage Act surely takes off the second requirement without question. Only the third requirement still stays intact to a certain level even today as religious and ritualistic practices are followed by Hindus.
So, to conclude we can say that Hindu marriage has neither become a contract nor has remained a sacramental union; it simply has a beautiful semblance of both.
References
[i] Sathpath Brahamana V, 1.6.10
[ii] Manusmiriti IX, 64-68
[iii] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3705690/
[iiii] Tikait v. Basant, ILR 28 Cal. 758
[v] Shivonandh V. Bhagawanthuma, AIR (1962) Mad. 400
[vi] Manmohini v. Basant Kumar
[vii] https://www.news18.com/news/india/marriage-under-hindu-law-is-sacrament-not-contract-delhi-hc-1342165.html
[viii] A Treatise on Hindu Law and Usage, 1878 by John Dawson Mayne
[ix] Muthusami v. Masilamani, (33 Mad.342)
[x] Purushottamdas v. Purushottamdas, (21 Bom.23)
[xi] Macnaghten, Principles of Hindu Law, 1829
[xii] Bhagwati Saran Singh v. Parmeshwari Nardar Singh, (1942 ILR All. 518)
[xiii] Anjana Dasi v. Ghose (6 Bengal Law Reporter, 243)
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