This article is written by Ritika Sharma, a student of Vivekananda Institute of Professional Studies, GGSIPU. In this article, she has discussed the meaning, nature and Scope of Contract.

INTRODUCTION

The term contract is not a modern term rather it is an age-old which has its origins in Ancient Civilization. The history of the contract is highly influenced by the Roman thought wherein Plato has been one of the theorists who has actually given less attention to the forms of agreement and has devoted much more time to the basic categories of cancelling of the agreements which even exists in today’s time. The Roman law has identified the discrete categories of transactions of contractual nature which have its own requisites which are required to be fulfilled in order to get the promises enforced and the general kind, stipulatio, used to require various in order to generate an obligation or in a contractus litteris it could have been written down.[i] In the Middle Ages as well, the system of English court did not exist in good number. There used to be the existence of jury at that point of time. After the Industrial Revolution, the English courts became more and more familiar to the very notion of freedom of contract.[ii] Thus, in the twentieth century, legislations begun changing the attitude of the court which begun to brought about the contract law in enforcement.

MEANING OF CONTRACT

A contract refers to an agreement between the two private parties which creates mutual legal obligations for both of them. A contract can be either oral or written. The oral contracts are usually riskier and challenging and hence they should be avoided if possible. According to the Indian Contract Act, 1972, the definition according to Section 2(h) stipulates that a contract is nothing but an agreement which is enforceable by law.[iii] The agreement is defined in the same Section under clause (e) as every promise or set of promises which are backed by consideration are called agreements and the term offer and acceptance are also defined in Section 2.[iv] The offer is the proposal which is made by one party to another party which is mentioned in Section 2(a) and acceptance is defined in section 2 (b) as the when the offer is accepted, it becomes a promise. It is important to note that there is a difference between an agreement and a contract. Section 10 is the major section which describes that all agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.[v]

NATURE OF THE CONTRACT

Contracts are the one which is not only applicable to the business but they are seen in day to day life as well. A contract forms the very basis of each and every transaction that is being made in day to day lives. The very formation of a contract is actually based upon the rights and obligations which are assumed freely than being imposed and the liability which exists in a particular contract is actually based upon the voluntary undertakings of the obligation which are done by the individual.[vi] The parties are completely free to make and enter into a particular contract in any way they wish based upon the concept of equality and freedom. In the leading case of Mohori Bibee v. Dharmodas Ghosh,[vii] while bargaining, the parties tend to enjoy the equal position with that respect. The obligations which are being imposed under a specific contract are not imposed by someone else rather they are self-imposed which are being entered freely by the parties per se and the contract law is concerned only with the actual fulfilment of specific conditions by the parties in contract in order to mate the transaction recognized as a legally binding agreement and is thus made enforceable.[viii]

TYPES OF CONTRACTS

The contracts are of various types in general. They can be categorized accordingly.

ON THE BASIS OF ENFORCEMENT

There are five types of contracts on the basis on the enforcement.

Valid Contract- An agreement which is enforceable by the law is a contract according to Section 2(h) and it is also termed as a valid contract. However, the appropriate definition of the same have been provided in Section 10 wherein the essentials are being provided in order to enforce the contract
Voidable Contract– Section 2(i) of the Act defines a contract which is voidable. An agreement which is enforceable by law at the option of one or more of the parties thereto, but not at the option of the other, is a voidable contract.[ix] The term free consent has been defined in Section 14 of the Act as an essential ingredient of a valid contract.
Void Contract- A void agreement is an agreement which is not even enforceable at the option of either party and is void ab ignition. Section 2(g) of the Act defines the meaning of a void agreement.[x]
Unenforceable Contract- This contract is the one which cannot be enforced due to some technical issues and it was valid earlier. It is could be because of the absence of writing, registration, time-barred by the law of limitation or some other issues.
Illegal/unlawful Contract- TheSection 23 of the Act provides some conditions where an agreement can be enforced but it is unlawful or it is illegal. A difference is needed to be made between void contracts and illegal contracts.

ON THE BASIS OF CREATION

According to the creation of the contracts, there are mainly two types of contracts as below:-

Express Contracts- The first part of Section 9 of the Indian Contract deals with promises which are expressly made. Contracts arising from expressly made promises are called express contracts. Thus contracts entered by the parties through words, spoken or written, are known to be the express contracts.
Implied Contracts– The second part of Section 9 of the Act provides the definition of the implied contracts. Thus contracts which are entered by the parties by virtue of their conduct are simply called as implied contracts.[xi]

SCOPE OF CONTRACT

The scope of law of contract changes from one particular country to another. The non- contractual obligations are the ones in which an individual is required to undertake a particular obligation which is not correct for another individual. The contract law governs the basic contractual obligations and the rights which are raised from the agreements which are made between two or more persons and deems the promissory under certain obligation in order to perform his or her duties according to the said procedure.[xii] An obligation pertaining to the contract requires the very existence of an ‘obligor’ who is the person who is actually legally bound under the obligation and the obligee who is the person for whose benefit the obligation exists.[xiii] This feature of the contract is the major feature which makes contract law different from criminal law obligations.

CONCLUSION

To sum up, the meaning and the concept of contract is essentially important to understand so that the entire concept becomes. Moreover, the nature of a contract varies in many aspects and hence it is important that it should be kept in mind that such realms are explored to the fullest. The kinds of contracts that are being provided are indeed the major types and are being categorized according to the Indian Contract Act, 1972. The scope of the contract is widening and it largely varies from one aspect to another.

[i] Nicholas, B., An Introduction to the Roman law, Claredon, 1963

[ii] Maine, HJS, Ancient Law, 1861

[iii] http://uputd.gov.in/site/writereaddata/siteContent/indian-contract-act-1872.pdf

[iv] https://indiacode.nic.in/handle/123456789/2187?view_type=browse&sam_handle=123456789/1362

[v] http://legislative.gov.in/actsofparliamentfromtheyear/indian-contract-act-1872

[vi] Singh, Aditi, Agency an exception of law of Contract, 2019

[vii] (1903) 30 Cal. 539

[viii] Jajodia, Gaurang, Remedies for Breach of Contract, April 19, 2012

[ix] http://legislative.gov.in/actsofparliamentfromtheyear/indian-contract-act-1872

[x] Pragadeeswaran, M., Critical Study on Different Types of E-Contract with Special Reference to the Remedies Available on Breach, International Journal of Pure and Applied Mathematics Volume 119 No. 17, 2018

[xi] Lawrence M. Friedman, Journal of Legal Education, Vol. 20, No. 4, (1968)

[xii] Alice Mary Hill v. William Clarke, ILR (1905) 27 All 266

[xiii] Moharum Ali v. Aysha Khatun, (1915) 19 CWN 1226

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Mansi Tyagi, is a student of Symbiosis Law School, Pune. In this article, she has discussed the rules and principles concerning the Delegated Legislation in India. Also, she has tried explaining the major issues with the same that needs to be tackled. And in conclusion, she has tried putting forth the contemporary situation regarding a valid delegated legislation.

What is Delegated Legislation?

Legislation, the law-making process, can be either supreme or subordinate. While supreme legislation is the one that flows directly through the sovereign; subordinate legislation includes every other organ as its maker other than the sovereign power. On one hand, as the name suggests, supreme legislation cannot be annulled or controlled by any other lawmaking authority, which is not the case with the subordinate legislation.

To get a simpler idea, the parliament in India is a supreme legislative body, while any other authority making law will be considered a subordinate source of legislation. Delegated legislation is one such important and emerging example of subordinate legislation.

What exactly means by the term ‘Delegated Legislation’?

Black’s Law Dictionary defines ‘Delegation’ as “the act of entrusting another with authority or empowering another to act as an agent or representative”.

Thus, Delegated Legislation comes down to how the Legislative authority entrust other departments of the government itself to make law instead. Also known as Executive Legislation, Delegated legislation refers to where, unlike its usual function of executing’ the law, the executive branch makes laws. A law made by a delegated authority is the same as an act passed by the parliament. Since time immemorial, there have been several reasons for the evolution of such a kind of legislation.

The concept of a Welfare state has multiplied the functions of a government, including those of lawmaking. The surging need for law has made the process way too lengthy for the lawmakers to do alone. And that’s where Delegated legislation came into existence. Not just it shared the burden of law-making subject matters, but also gave the legislative to elaborate and discuss on more delicate and critical issues.

Is it prospective or Retrospective?

One of the earlier issues regarding Delegated Legislation that was posed before the judicial authorities was whether it stood a prospective or a retrospective effect. However, instead of handling situations factually, the Hon’ble Supreme Court of India went ahead to lay down principles regarding the effects of such delegated legislation in the case of Federation of Indian Mineral Industries and Ors. v. Union of India and Ors. It laid down three basic principles concerning the subject:

(i) In the case of Hukum Chand v. Union of India, the first principle was laid down which stated that only if there was any express or implied authority from the parent statute, the delegating authority, i.e. Central Government or the State Government can make such delegated legislation into retrospective nature.
(ii) The 2nd principle was laid down in case of Panchi Devi v. State of Rajasthan where it was stated that originally a delegated legislation is always prospective in nature and thus no right or liability emerging out of it can have a retrospective effect.
(iii) Finally, in case of State of Rajasthan v. Basant Agrotech Ltd, It was held as the third principle that as far as the delegated law was regarded as a fiscal statute, a tax or fee could not be levied unto people in absence of an express provision. Only on the pretext that a delegated authority made the law, the imposition of fiscal duty cannot be made ipso facto.

What controls it?

The main purpose of a delegated legislation is to supplement and not to supplant the law. However, such legislation has its own inevitable evils. To safeguard such laws, there are certain ways through which delegated legislation can be controlled. These ways of control are divided into two, direct and indirect. While direct controlling includes control and supervision of Parliament; the indirect control includes the judicial control and review process. One hand the parliament always has the general control to alter any bill before its made into law. Also, after such laws are made by some other authority, the parliament always has the power to amend or repeal such law if it does not serve the purpose why the delegation was made in the first place.

On the other hand, the judiciary has the power to declare any law void that goes against the law of natural justice and good conscience. Also, the delegated law which is ultra vires in nature can be held repugnant by the judiciary without being able to annul or amend it. There are other indirect controls over a delegated legislation as well. This includes giving the delegation to a trustworthy authority to avoid any defect; publicize the law effectively to get a vigilant public opinion to avoid any arbitrariness, and; taking experts’ opinions on such laws to avoid any ‘blanket’ or vague legislation.

Benefits

After understanding the controls over delegated legislation, now we move on to another important question. ‘Why Delegated Legislation?‘

The contemporary societal needs have made the law-making procedure too complicated for any ordinary person. While it is a delicate issue at hand, there are certain benefits that make delegation the best possible way of making supplementary laws. Here are the reasons why delegated legislation works in India more efficiently:

Time-Saving – In a large democracy like India, the legislature is always burdened at the first instance. By enabling delegation to the executive to make subordinate law saves time for the parliament to instead work on more complicated issues.
Access to special expertise – In most of the cases, the members of parliament are unconnected to the fields they are making laws in, and it is possible for them to make bills defective at their outset. Delegation to departments having an expertise in the required field thus not only saves time on unnecessary defects but also makes the process faster since the time given for drafting bills is anyways inadequate.
Flexibility to law – In no case can the lawmakers anticipate the future contingencies that may arise and challenge the law which is in making. Delegating the law-making power to the department concerned can help to add details that might help in avoiding such unforeseen contingencies. Thus, such delegations allow ample scope to amend through swift actions in cases of emergency owing to its gap-filling details to the changing needs of the society.

Disadvantages

Despite the benefits like reducing workload and adding expert details, delegated legislation poses certain threats to the supreme authority of legislation that even the controls are inadequate to handle. Some of them include:

Legality – The most basic criticism that this legislative kind receives is its lack of legality. Firstly, the laws are supposed to be made by the people democratically elected. However, in such legislations, the laws are instead made by people not directly elected to the House of Commons, thereby contrasting the democratic setup of the state. Secondly, this, in turn, allows for expropriation of the legislative by the execution, thereby challenging the doctrine of separation of powers.

Accountability – In normal circumstances, the legislative is answerable for the defects and lacunas in the laws made. However, when laws are made by unelected delegators, the accountability drops down to a specific ministry, thereby eroding the constitutional role of the parliament. Also, in the process, it unveils the inability of the parliament to check upon the law owing to its lack of expertise on the concerned law.

Inadequate Publicity – A lawmaker is required to publicize the law to the general public in order to fulfil the principles of natural justice and good conscience. However, the problem with delegated legislation is that there is no mandate to make enough arrangements for its publicity for the general public. Also, even if the arrangements are made, the words used by the concerned authorities are too complex to be deciphered by the common public. This, in turn, is a major drawback for states where ignorance of the law is not an excuse.

Inadequate Control – Despite such delegation being authorized by the legislation itself, the control over it is lacking the expected vigilance. Neither the legislative have the time nor the expertise to keep a check on such laws. In the first place, such delegated legislations have to be laid down before the parliament for an informed approval. However, one of the major limitations to such delegation is there is no adequate control to ensure that the delegated legislation is closely surveilled upon, thereby checking upon the administrative authority making it. In other words, there is a lack of parliamentary check and control over the delegated legislation which in turn makes the executive wing creating it go uncontrolled.

To curb these demerits, prima facie the authority should be given to a trustworthy subordinate department and nothing less than that. At the time of sanctioning of such law, the delegating authority shall be consulted. Also, the publicity of such law should be unprecedentedly made on a more alarming scale allowing the public to give their feedback which can further be used to amend or revoke such law. Prior to its coming into force, all such laws should be completely checked and discussed upon by the legislative. In case, the law avoids such deliberate discussion, the judicial review and supervision control will thereby minimize any chance of them being defective.

What cannot be delegated?

While many rules, regulations or by-laws in India are a product of delegated legislation, there is still a circumference of scope within which only such delegation can be made. Not everything and anything can be delegated to the executive.

In the case of Delhi Laws Act, 1912, In re v. Part ‘C’ States Act, 1950, It was held that the parliament cannot delegate what construes ‘essential legislative features’ which basically means deciding upon the legislative policy and then converting it into binding regulations. Therefore, what can be delegated is only what comprises the ‘non-essential’ functions of the legislative. Also, it held that since India followed the English model of parliament, which thus made the executive accountable to the legislative, and thus the separation of powers didn’t exist in India. This in turn validated the principle of delegated legislation.

In the case of Ajoy Kumar Banerjee v. Union of India, The principle of Delegated legislation was laid down as, “This principle which has been well-established is that the legislature must lay down the guidelines, the principles of policy for the authority to whom power to make subordinate legislation is entrusted.” The most enchanting problem that the delegation of legislative powers faces is its validity. In the most controversial and infamous case of Delhi Laws Act, 1912, In re v. Part ‘C’ States Act, 1950, the three tests for a valid delegated legislation were laid down:

It must be a delegation in respect of a subject or matter which is within the scope of the legislative power of the body making the delegation.
Such power of delegation is not negated by the instrument by which the legislative body is created or established.
It does not create another legislative body having the same powers and to discharge the same functions which it itself has, if the creation of such a body is prohibited by the instrument which establishes the legislative body itself.

Only if these tests are passed by the delegation, will the delegation be valid.

It was in this case that the ‘Doctrine of Abdication’ was propounded by the judiciary.
It held that the parliament cannot completely abdicate itself by creating a parallel authority and can only delegate ancillary functions. Instead, it has to make sure that the executive only works as a subordinate authority and does not become a parallel to the legislative. Thus, when the delegated law is ultra vires, it ipso facto means that the legislature has abdicated its ‘essential’ functions.
The Court was also of the view that being a subordinate, its existence was subject to the legislature’s authority conferred upon it, and thus the legislative can dysfunction the same whenever it desires. Also, no delegated legislation can be held unconstitutional or repugnant only on the pretext that it was not made by the legislative but other authority authorized by it. Thus, even though politically it seems to elude the electorates’ trust, the delegated legislation does not become constitutionally invalid.

Conclusion

Sir Cecil Carr remarks, “The legislature provides the gun and prescribes the target, but leaves to the executive the take of pressing the trigger”. Delegated Legislation permits the executive to pass the law rather than the parliament. It is often argued that India follows the principle of ‘delegatus non-potest delegare’ meaning that there is a prohibition on delegation of power by the parliament since it is the one who itself has the delegation work from the supreme law to make laws for the state.

However, in the In re Delhi Laws Act case, the court took the view that delegation was a part of legislative functions, and since India doesn’t follow the stricter form of Separation of powers, this principle of ‘delegatus non-potest delegare’ does not apply in India. Thus, delegated legislation is a valid legislation unless limited by the guidelines lay down by the Hon’ble Supreme Court of India in the form of the three tests. As for the demerits such legislation poses, Dr. C.T. Carr has already suggested that the safeguards have to be exercised against the otherwise inevitable evils of the delegated legislation.

Delegated Legislation, if handled carefully, is a boon for any welfare state. Its features of being made by an expert ministry and having detailed technicalities, makes it a better version for having timely speedy laws as per the changing needs of the society.

References

Black’s Law Dictionary
Manupatrafast.com

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This article is written by Hitesh Vachhani, 4th year Law Student at GLS Law College Ahmedabad. This article focuses on the advancement of technology that has raised a question regarding the online contracts and how the Judiciary and the Legislature has responded to the same.

INTRODUCTION

The advancement of technology has changed the lifestyle of the people. Technology has no geographical limitations and thus there’s quick and wide dissemination of information than before. It has also changed the manner which the businesses are conducted. Internet is being used for electronic commerce, social networking, dispute resolution, sending emails and writing blogs. Today, electronic commerce is the most significant features of the Internet.

Electronic commerce includes all the type of activities by a person or a firm such as buying and selling of products and services like using computers or any electronic platform via the use of internet. And online contracts form a part of electronic commerce. Thus conducting business over the internet demands agreement between the parties. Online Contracts or Cyber Contracts or E-Contracts or Digital Contracts is a shift from the traditional mode of face to face contract and the parties can contract without meeting each other.

Traditionally, in a contract, one of the parties to the contract makes an offer and the other accepts the offer and thus there is a meeting of two minds and the contract is said to have been entered into between the parties. In online contracts, the parties can agree to the terms of the contract via the internet i.e., via exchange of emails or other possible suited mediums. But in both, traditionally or in online contracts, the essential requirements of the contracts have to be fulfilled for the contract to be valid and made enforceable in the courts of law.

ESSENTIAL REQUIREMENTS FOR ONLINE CONTRACTS

The following requirements have to be fulfilled for the contracts to be held valid under the Indian Contract Act, 1872:

Offer
Acceptance
Intention to create legal relationship
Lawful Object
Lawful Consideration
Parties must be capable to enter into contracts
Free Consent
Possibility of Performance

DEVELOPMENT OF THE CONCEPT OF ONLINE CONTRACTS

The Indian Contract Act, 1872 which is a colonial-era law defines a contract as an agreement enforceable by law. Traditionally the Indian Contract Act would only apply to the agreements entered into between the parties face to face. But as early as in 1996, the Hon’ble Supreme Court in Bhagwandas Goverdhandas Khedia v. Girdharilal Parshottamdas & Co.¹ was posed with a question that whether the contract entered into between the parties orally over a telephonic conversation was a valid contract capable of being enforced in a court of law. The SC by a majority of 2:1 (the majority being J. Shah and J. Wanchoo) held that the draftsmen of the Indian Contract Act, 1872 could not have envisaged the use of the telephone because it was not invented and therefore the words of the provision should be confined to communication by post. Thus, the contract was not a valid contract and could not be enforced. But the minority opinion of Hidayatullah J. is what opened the doors for online contracts.

According to J. Hidayatullah, the law should have been interpreted in the present-day context. He observed:
“The law under consideration was framed at a time when telephone, wireless, Telstar, Early bird were not contemplated. If the time has marched and the inventions have made it easy to communicate instantaneously over long distance and language of our law does not fit the new condition it can be modified to reject the old principles”.

It is true that the draftsman of the contract law could not have contemplated scientific inventions. Further, it is also important that the provisions of the law are interpreted in a progressive manner. The statues must be construed to continuously update the wordings in accordance with the changes in the social condition, science and technology.

LAWS THAT GOVERN THE ONLINE CONTRACTS

There are various laws that govern the online contracts such as the Indian Contract Act, 1872, the Indian Evidence Act, 1872, the Information Technology Act, 2000 and the Indian Stamps Act, 1899.

It is important to note that the requirements of the online contracts are similar to that of physical contracts under the Indian Contract Act, 1872 i.e., there should be a lawful object, lawful consideration, the parties must be competent enough to contract, there must be free consent and there must be an intention to create a legal relationship. Thus, even for the online contracts the provisions of the Indian Contract Act, 1872 have to fulfilled for it to be made enforceable in the courts of law.

However, the doubts as to the evidentiary value of the online contracts may arise. To settle the doubts raised qua the evidentiary value of the online contracts there are certain provisions in the Indian Evidence Act, 1872 which govern the same. They are as follows:

Section 85 A: This section presumes the existence of the electronic agreement after the agreement is concluded by affixing the electronic signature of the parties.
Section 85 B: This section allows the court to presume that the record in question is not put to any kind alteration. It also allows the court to presume that the electronic signature has been affixed with the intention of signing and approving the electronic record. This section also provides that the section should not be misread so as to create any presumption relating to the integrity or authenticity of the electronic record or digital signature in question.
Section 88 A: This section allows the court to presume the existence of the electronic messages and also specifies that the court shall not make any presumptions as to the person by whom that message was sent. The Court may presume that an electronic message, forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission.
Section 90 A: According to this section where the electronic documents are proved to be five years old are and are produced from the proper custody, the court may presume that the electronic signature so affixed on the document was affixed by him or any other person authorized by him so as to validate the existence of the contract.
Section 65 B: According to this section any information contained in an electronic record which is printed on a paper or stored/recorded/copied on optical/magnetic media produced by a computer shall be deemed to be a document and is admissible as evidence in any proceeding without further proof of the original, provided certain conditions mentioned in sub-section 2 of section 65 B are fulfilled.

The Information Technology Act, 2000 recognizes the basic features of the contract such as communication, acceptance and revocations which may be expressed in electronic form or by means of an electronic record. Signature of the parties to the contract is essential but is not required under the Indian Contract Act as it recognizes the existence of the oral contracts as well. The principal function of signing a document is to confirm the identity of the contracting parties and to give consents to the contractual terms and to refuse repudiation, i.e. when a person appends his signature, he cannot subsequently refuse that he was not a contracting party. Therefore, the IT Act makes provision to authenticate the electronic records. Section 3 of the Information Technology Act, 2000 provides that any subscriber can authenticate the electronic record by affixing the electronic signature. Section 3 A of the Information Technology Act, 2000 defines electronic signatures and makes this electronic authentication technique reliable.

In particular, the IT Act 2000 excludes the following documents from electronic transactions:

Negotiable Instruments
Power of Attorney
Trust Deed
Will
Sale Deed or Conveyance deed with respect to the immovable property of any documents relating to any interest in an immovable property.

Section 10A of the Information Technology Act, 2000 hints at the validity of e-mail contracts. It reads as follows: “Where in a contract formation, the communication of proposals, the acceptance of proposals, the revocation of proposals and acceptances, as the case may be, are expressed in electronic form or by means of an electronic record, such contract shall not be deemed to be unenforceable solely on the ground that such electronic form or means was used for that purpose.”

In the present era the formation of contracts via emails are increasing and to ensure that the online contracts are not faced to with any legal implications this provision was inserted into the Information Technology Act, 2000.

JUDICIAL RECOGNITION OF ONLINE CONTRACTS

In Trimex International Fze Limited v. Vendata Aluminium Limited², The petitioner had applied to the Hon’ble Supreme Court under section 11(6) of the Arbitration and Conciliation Act, 1996 for the constitution of the arbitral tribunal. The respondents objected to the same on the grounds that there was no contract between the parties and therefore there could not be any arbitration agreement between the parties. It was the contention of the respondent that the acceptance over the e-mails could not give rise to the contract and there was always an intention that a formal contract would be signed in future.

In Rickmers Verwaltung GNBH v. Indian Oil Corporation Limited³, The Supreme Court clearly contemplated that possibility of exchange of correspondence between the parties would amount to contract between parties. Thus relying on the above decision of the three-judge bench the court held that “Unconditional acceptance of contract concluded orally or in writing [or by e-mail].. mere absence of a signed formal contract, would not affect either unconditional acceptance of contract or implementation thereof.” Thus, the e-mails which convey the clear intention of the contracting parties can be treated as a binding contract.

In Ambalal Sarabhai Enterprise Limited v. KS Infraspace LLP Limited, The Hon’ble Supreme Court had decided the validity of agreements entered into by the parties using a combination of communications over WhatsApp and emails. The court stated that: “The e-mails and WhatsApp messages will have to be read and understood cumulatively to decipher whether there was a concluded contract or not. The use of the word ‘final draft’ in the e-mail… cannot be determinative (of offer or acceptance) by itself”. Therefore the courts have accepted and provided that the agreements can be executed electronically, so long as they meet the minimum requirements of the Contract Act and the IT Act.

The foreign courts have also given a more liberal construction. There are judgments which read that unless an inference can be drawn from the facts that the parties intended to be bound only when a formal agreement had been executed, the validity of the agreement would not be affected by its lack of formality.

CONCLUSION

The advancement of technology will bring more and more challenges and thus it is important that the laws are updated and upgraded from time to time to keep up with the evolving technology. The judiciary is still administering the online contracts and it still remains a developing subject as there are not many judicial decisions on this point.

However, the fact, that many Indian courts recognize the extensive inclination to e-commerce and reliance on the internet cannot be denied. The prevailing legal judicial and legislative intent appears to be that any legally valid acts would maintain their validity even if performed online or electronically provided that such contract satisfies all the essentials of a valid contract.

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“Wars are not won in a day”

This Article is written by Shantam Patil pursuing BA.LL.B from HNLU, Raipur. In this article, he has discussed the legality of lockdown amid Coronavirus with the reference of Draconian Law, an Athenian law scribe under which small offences had heavy punishments.

Introduction

On 11th March 2020, a 123-year-old law (so-called draconian law) was implemented and came into force by the authority of the President and Government of India.

Karnataka was the 1st Indian State to implement this law. Then after many States like Maharashtra, Delhi and others also joined the league and were followed by many others. A series of drastic and rapid events then took place in our country. People ran to the shopping malls and grocery markets, causing a tremendous situation. A heavy police force was then deployed to control the situation. Resulting in many arrests and quarrels between the public and the authorities.

Finally, Prime Minister Narendra Modi came out and announced the total lockdown in India for 21 days on 24th March 2020 at 8 pm and it started functioning from the next day onwards i.e. 25th March 2020. All Economical and other beneficial activities stopped and there was no exchange. India shut its $2.9 trillion (£2.3tn) economy, closing its businesses and issuing strict stay-at-home orders to more than a billion people. Air, road, and rail transport systems were suspended.
Then the second lockdown was announced on until May 3rd and lastly the on 01st May the GOI extends nationwide lockdown further by two weeks until 17 May.

History

Historically it weighs very much important because it is the first-ever all-over nationwide lockdown after Independence of India. Many situations like this occurred in India and also people of India fought with that and survived. The first-ever known situation like this happened during the British regime over India in the year 1897. There was bubonic plague spread all over the city of Bombay (now Mumbai) and the British came up with the Epidemic Diseases Act, 1897.

It is a Pre-independence era, A 123-year-old law that was enacted on the 4th of February 1897. It was evolved by the British Council to tackle dangerous epidemic diseases and was used to prevent the spread of the outbreak of the bubonic plague in India, particularly in Bombay in 1897. This act gave draconian powers to the colonial government which allows British authorities to detain any person and at any time, also it allows for medical examination of the detainee.

While introducing the Epidemic Diseases Bill in the Council of the Governor-General of India in Calcutta for ‘better prevention of the spread of dangerous epidemic diseases’ John Woodburn, the council member who introduced it, himself considered the powers mentioned in it as ‘extraordinary’ but ‘necessary’. Woodburn emphasized that people must ‘trust the discretion of the executive in the grave and critical circumstances.’

This law proved to be very stringent for Indian freedom fighters and resulted in the arrest of many freedom fighters, one of them was Bal Ganga Dhar Tilak. He opposed this act and he used the term “Military Terrorism” in his newspaper Kesari for this pre-independence draconian law.
The Act has, since then, been invoked to fight dengue and malaria in cities like Chandigarh in 2015, cholera in Vadodara in 2018.

Current Scenario

Indeed, there is no doubt that this lockdown is completely legal and the Constitution of India provides for this. The Disaster Management Act provides for a National Disaster Management Act,2005. This is also the first time a nation was shut under the provisions of the Disaster Management Act,2005. This is also the first time a central government has issued directions of this magnitude to the states. The Disaster Management Act provides for a National Disaster Management Authority and section 6 of the legislation deals with powers of the authority from which the authority has issued the directions to the state and central governments.

Section 6(2)(i) of the Act authorizes the National Disaster Management Authority, headed by the prime minister, to take measures for “the prevention of disaster, or the mitigation, or preparedness and capacity building for dealing with the threatening disaster situation or disaster as it may consider necessary”. The Act also provisions for a national executive authority, which exercises powers to issue guidelines that will be in effect during the lockdown. The Disaster Management Act also casts a duty on the states to follow the directions of the NDMA as mandated under Section 38 of the Disaster Management Act.

There are other acts also which the government can exercise in situations like – war, state emergency, and financial emergency. And these are: –
Article 352 of the Indian Constitution which provides that the President of India can declare emergency in situations like war, external aggression, or armed rebellion.

Article 356 of the Indian Constitution provides that the President of India can declare state emergency when he is satisfied that the state cannot further be carried out according to the procedure established by the law.
Article 360 of the Indian Constitution provides for the declaration of financial emergency by the President of India when he felts that there is financial instability.

Cause and Effects

For a country whose population is 1.35 billion and also stands 2nd in terms of population.

Certainly, the nation-wide lockdown has proven to be more useful for our country and has helped to tackle the Novel Coronavirus. The reason why we are doing a far better play in the case of positive coronavirus patients than other powerful nations is because of the lockdown imposed all over India by the Government of India.

Also, it has attacked the economy of India very badly and some sources confirmed that it may be possible that a situation like in 1929 happened to cause a major outbreak to the economy that can happen due to this crisis.
Many of the contracts made between two parties to a contract that requires physical attention and supervision shall become void because of the nationwide lockdown and curfew-like situation. This has been provided in Section 56 of the Indian Contract Act, 1872 the doctrine of frustration. It says that “An agreement to do an act impossible in itself is void. And the same has happened. People cannot leave their house and so they are unable to carry out the performance of the contract they may have made.

All the upcoming examinations which were going to be held are cancelled and the board results of Students are delayed due to coronavirus. This would cause a severe drawback in the academic performance of fellow students of the country. Many universities and schools have started online classes for their students. And the government is launching many e-platforms for education. But only the students living in the urban area would be getting benefits from this and people living in the rural area could not because of the poor internet connectivity issues.

Many NGOs, Communities, and Social institutions are coming forward to help and giving large amounts of donations to the people in need. The Government has also exempted common people from various taxes which they pay in a normal situation.

Conclusion

The Government of India is doing its best to stop the spread of Coronavirus in India by taking harsh measures like lockdown, the imposition of the Disaster management act, and Epidemic diseases act. Also, the Central government is cooperating with all the state governments to provide relief and provide assistance to the needy people. India has entered into the third phase of lockdown. This is the situation in which a country requires contribution from every citizen. This is the time that people have to unite and fight against this deadly virus. Now, the time has come that every individual unites together and contribute to fighting against coronavirus.

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This Article is written by Pranit Bhagat pursuing BA LLB from ILS Law College, Pune. In this article, discusses the various dimensions regarding Right to Privacy nationally and internationally, reasonable restrictions, various case laws and its latest developments.

Introduction

Right to Privacy is encompassed under Article 21 of the constitution of India which is a requisite of right to life and personal liberty. Article 21 has a multi-dimensional scope under the Indian Constitution. In a historic judgement, the right to privacy was declared as a fundamental right protected under the Indian Constitution by the Supreme Court of India on 24 August 2017. A nine-judge bench of the Supreme Court in the case of Puttuswamy v. Union of India declared that the right to privacy is a fundamental right protected under Part III of the Constitution of India. It primarily focused on the individual’s right against the State for violations of their privacy. This landmark judgement will have consequences across both State and non-State actors and is likely to result in the enactment of a comprehensive law on privacy. Right to Privacy is a dynamic concept incorporated under provisions of various legislations and also embraces its various aspects. The in-depth study of the right to privacy shall bring light to the pros and cons with certain reasonable restrictions where the transgression of this right is not considered as an offence. In this article, we shall discuss the various dimensions regarding Right to Privacy nationally and internationally, reasonable restrictions, various case laws and its latest developments.

In Ancient India, the concept of privacy has been linked to the Indian Culture through Hitopadesh which enumerates that certain subjects like worship, sex and family matters should be protected from disclosure and are related to positive morality. Whereas in the modern times, Right to Privacy was discussed for the first time in the constituent assembly but later was not incorporated in the Indian Constitution. Since, 1960’s, the issue of privacy has been dealt with both as a fundamental right under the Constitution and as a common law right. In M.P. Sharma v. Satish Chandra case, 1954 The Supreme Court held that privacy is not a fundamental right while dealing with the power to search and seize documents from the Dalmia Group, dismissed the mere existence of a right to privacy on the basis of the Constitution. Later, in the case Kharak Singh v. State of Uttar Pradesh, Justice Subha Rao stated that Right to Privacy is an essential component of personal liberty but no such provision was incorporated nor declared as a fundamental right under the Indian Constitution. Finally, the decision taken in the case of M.P. Sharma vs. Kharak Singh was overruled in the case of K.S. Puttaswamy v. Union of India in 2017. Privacy had been rooted in our fundamental rights and it had never faced such a strong challenge of its existence.

What is Right to Privacy?

The right to privacy is an element of various legal traditions to restrain governmental and private actions that threaten the privacy of individuals. The right to privacy can also be defined as the concept where one’s personal information is protected from public scrutiny. The statutory laws have often protected the right to privacy. The right to privacy needs to be balanced against the state’s enthralling interests like the promotion of public safety and also improving the quality of life. There is no definite legal definition of the term ‘privacy’. Some legal experts defined privacy as a basic human right that is enjoyed by every human being by the virtue of his or her existence. Privacy can also be extended to other aspects like bodily integrity, personal autonomy, informational self-determination, protection from state surveillance, dignity, confidentiality, compelled speech, and freedom to dissent or move or think. Right to privacy as –

An Individual Right

Every individual is involved in a continuous personal adjustment process where he balances between the desire for privacy and the desire for disclosure and communication with others in light of the environmental conditions and social norms set by the society. It is believed that under a liberal democratic system, privacy has created a separate space from political life and allows personal autonomy while securing democratic freedoms of association and expression.

A Human Right:

Attempts have been made to reframe privacy as a fundamental human right with social value as an essential component in the functioning of democratic societies. Privacy is merely one good among many others and that the technological effect depends on the accountability of community and oversight. It is also believed that individual concepts of privacy have failed philosophically and in the policy. It is a social value of privacy with three dimensions: shared perceptions, public values, and collective components.

Universal Declaration of Human Rights

Article 12 of the Universal Declaration of Human Rights, 1948 explicitly states that:

“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, or to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

Landmark Case: Justice K.S. Puttaswamy v. Union of India:

A 91-year old retired Karnataka High Court Judge Puttaswamy brought light to the recent case of Right to privacy against the Union of India to determine whether the Right to Privacy was guaranteed as a fundamental right under the Indian Constitution. The government’s Aadhaar scheme (a form of uniform biometrics-based identity card) in which the government made mandatory for availing the government services and benefits was challenged in the Supreme Court. The issue was made on the basis that this scheme violated the right to privacy of an individual. Therefore, a Constitutional Bench was set up to determine whether there is a fundamental Right to Privacy within the provision of Article 21 of the Constitution of India. The petitioner argued before the bench that Right to Privacy is a fundamental right and should be guaranteed as a right to life with dignity under Article 21 of the Constitution while the respondents made submissions that the Constitution only recognized personal liberty which may include Right to Privacy but to a limited extent.

Key findings of the judgement

Right to Privacy – A fundamental right

The right to privacy is a fundamental right that can be derived from Articles 14, 19 and 21 of the Constitution of India and does not need to be separately articulated in the Constitution. It is a natural right which is an integral part of the right to life and liberty. An individual is protected from the interference of the State in their home, of their movements and over their reproductive choices, choice of partners, food habits, etc. Therefore, any action by the State that results in an infringement of the right to privacy is subject to judicial review.

Not an Absolute Right – Subject to Reasonable Restrictions

The fundamental right to privacy is not absolute and will always be a subject to reasonable restrictions. The State has the power to impose restrictions on this right to protect legitimate interests of the state but it can only do so by following the three-pronged test summarized below:

(i) Existence of a law that justifies an encroachment on privacy;

(ii) A legitimate State aim or need that ensures that the nature or the content of this law falls within the zone of reasonableness and operates to guard against arbitrary State action; and

(iii) The means adopted by the State are proportional to the objects and needs sought to be fulfilled by the law.

Other Incidental Implications

(i) The judgement is most likely to have an impact on the petitions pending before the Supreme Court on the de-criminalisation of homosexuality in India as it expressly recognises an individual’s right to privacy regarding his sexual choices.

(ii)The State shall not interfere in the food choices of an individual as it will have an impact on the various cases which are protesting the beef ban imposed by certain States.

(iii)The judgement made several observations on the complex relationship between personal privacy and big data, particularly in the context of how the judicious use of these technologies can result in the State achieving its legitimate interests with greater efficiencies.

Various aspects regarding right to privacy

Phone tapping and Right to Privacy

The Supreme Court has observed that the Courts will not be tolerating any safeguards through which the protection of citizen can be jeopardized. The police won’t be permitted to proceed by any unlawful or irregular methods. The tapping of telephones being a foray to the right to privacy and freedom of expression. Also, the right to hold a telephone conversation in the privacy of one’s home or office without interference can also be claimed as a right to privacy. Hence, The Supreme Court held that telephonic conversations are private in nature and hence tapping of phones amounts to violation of one’s own privacy.

Gender Priority on Privacy

The right to privacy includes another aspect of gender priority which implies that not only the prevention of incorrect portrayal of private life but also the right to prevent it from being depicted at all. A woman of easy virtue is also entitled to privacy and no one has the right to invade her privacy. It is the basic right of every female to be treated with decency and proper dignity.

Health and Privacy

Privacy is an important matter of concern in the health sector as Health information not only includes information about the health or disability, but also the information related to health services that one may receive. The information regarding health is considered highly sensitive by many people and also the right to life is so important that it supersedes the right to privacy. Therefore, a doctor is under an oath or under medical ethics for not to disclose the secret information about the patient as the disclosure will adversely affect or put in danger the life of other people. The public disclosure of true facts in such a situation may lead to the spar of one person’s right to be let alone and the other person’s right to be informed.

Right to Privacy in context to privacy by the state

The Kharak Singh case was the first case that alarmed the basis of the right to privacy in India. The Supreme Court checked the constitutionality of certain police regulations that authorize the police to do any domiciliary visit and surveillance of persons with a criminal record and thus, the constitutionality of this provision was challenged in the court of law as it was violative of the term ‘personal liberty ‘under Article 21 of the Constitution of India.

Privacy in the context of sexual identities

In the case of Naz Foundation v. Union of India, The Delhi High Court struck down Section 377 of the Indian Penal Code, 1860 and decriminalized sexual relations between consenting adults and interference by the state only if the state was able to establish a compelling interest protected under Article 21 of the Indian Constitution. The Supreme Court of India also held consensual sexual conduct between adults in private is constitutional In the case of Navtej Singh Johar v. Union of India.

Recent Developments in Right to Privacy

The recognition of the right to privacy under Article 21 as a fundamental right is enough to encroach it into any sphere of activity. The extent to which privacy matters in individuals is subjective and differs from person to person. The advancement of technology and the use of social networking sites has made it extremely difficult for the intrusion of such a right. Moreover, Section 43 of The Information Technology Act, 2000 also includes Right to Privacy which makes unauthorized access into a computer resource as an offence. Article 19(1) (a) of the Indian Constitution includes right to press which can also come in conflict with the right to privacy and thus, the concept of ‘public interest’ and ‘public morality’ and other provisions mentioned under Article 19(2) of the Constitution of India comes into the picture. The publication of personal information of an individual without his approval is justified only if it forms a part of public records including court records. The right to privacy may also come in conflict with the investigation of police and therefore Various tests such as Narco-Analysis, Polygraph Test or Lie Detector Test and Brain Mapping tests make an unwarranted intervention into the Right to Privacy of a person. The Supreme Court acknowledged the distinction between physical privacy and mental privacy In case of Selvi and others v. State of Karnataka. This case also establishes the intersection of the right to privacy with Article 20(3) of the Constitution.

Conclusion

Right to privacy is a requisite of right to life and personal liberty under Article 21 of the Indian Constitution. It is not an absolute right and can be subject to certain reasonable restrictions for prevention of crime, public disorder and protection of others. When there’s a conflict between these two derived rights, the one, which advances public morality and public interest, will prevail. The courts to treated the Fundamental Rights as water-tight compartments like in the case of A.K. Gopalan v. State of Madras but later with the relaxation of this stringent stand could be felt in the decision of Maneka Gandhi v. Union of India, the right to life was considered not to be the epithet of mere animal existence, but the guarantee of a full and meaningful life. Every person or individual needs his/her private space and thus, to give each individual that right, the State accordingly is giving those private moments to be enjoyed with those whom they want without the prying eyes of the rest of the world. With every passing day, this right is becoming more and more essential as all our lives being exposed to the media through social networking sites or the spy cameras, the protection is to be given to everyone and it should act in such a manner that no one should think to intrude the right to privacy of the individuals. The privacy should be protected in every aspect but it is subjected to reasonable restrictions under the provision of the Constitution of India and other relevant statutory provisions in force. One needs to understand that privacy should be kept in mind and within the confined limits not to explain to the rest of the world.

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This article is written by Ritika Sharma, student of Vivekananda Institute of Professional Studies, GGSIPU. In this article, she has discussed the nature of marriage under Hindu law.

INTRODUCTION

The institution of marriage is known to be the sacred instruction under Hindu law. According to Max Weber marriage is a “stable sexual relationship” allowed and legitimized by the larger kin group and used to determine rules about property rights for children. The concept of marriage refers to a man-woman relationship in the society which evolves a unique family system. The individuals in that tie live together and lead to procreation of children as an important constituent of a family. Many theorists have given different definitions regarding the institution of marriage. According to Horton and Hunt, “Marriage is the approved social pattern whereby two or more persons establish a family.[i] According to the beliefs of Hindus, marriages are the one which is made in heaven and two individuals pledge to live together for the next seven births. Marriage is seen to be the turning point in the life of any person as the person enters in the second phase of his life that is known as the ‘Garhasthyaashram’. According to the historic religious books, the marriage is considered to the duty as an unmarried man is seen to be unable perform some of the most important religious ceremonies in a family

NATURE OF MARRIAGE ACCORDING TO HINDU LAW

The nature of marriage in Hindu law is said to be the sacramental institution. The Hindu Marriage Act, 1955 has seen to be the one which has reformed the marriage in accordance with the Hindu law.[ii] This is Act known as one of the landmark modifications in the entire history of the social legislation. Moreover, this particular is not only responsible for codifying the Hindu marriage law but has also brought about innumerable changes. Marriage in Hindu law is considered to be the holy union of a male and a female. However, the modern nature of the marriage is known to be more of a contractual one than being a sacramental institution. The Hindu Marriage Act has brought in to consideration that in order to get the provisions to be applied on any individual, it necessary that the person should be a Hindu. The term Hindu is clearly defined in Section 2 of the Hindu Marriage Act.[iii]

FORMS OF MARRIAGE

According to Hindu law, there are three types of marriages which are valid marriage. These are valid according to the ancient law.

Brahm Vivah– in this form of marriage, the bridegroom was gifted to the groom by the bridegroom’s father. This is the arranged marriage which is practised in India till now with some modifications.
Gandharv Vivah– In this marriage, there used to be the mutual consent of the groom and the bridegroom. This is usually known as love marriage of today’s time. In modern times, the bride and the groom are allowed to select their partners and the marriage takes place according to the mutual consent with the specified ceremonies.
Asur Vivah– this marriage used to be the forced marriage. It was the aggressive marriage where the bride used to get sold by the father either for money or to uplift the social status.

The Hindu Marriage Act, 1955 does not define and acknowledge any of these forms of marriages.

CONDITIONS FOR A VALID MARRIAGE

Section 5 of the Hindu Marriage Act, 1955 provides for the conditions necessary to constitute a valid marriage.[iv]

The clause (i) of section 5 prohibits bigamy. According to this clause, no person is allowed to marry while his or her spouse is alive. However, it should be kept in mind that the first marriage of a person should be a legally valid marriage and should be done by fulfilling the requirements of the ceremonies.[v] According to Section 11 of the Act, such marriages are void and Section 17 makes such marriage a penal offence. In the leading case of Lily Thomas v. Union of India,[vi] it was held by the Supreme Court that if a man converts his religion just to get married according to the norms of Muslim law, this marriage will be declared void ab initio.
The Clause (ii) of the same Section provides for the condition regarding the mental capacity of a person to marry. The person who is suffering from unsoundness of mind is not entitled to give valid consent for the marriage and hence he or she is unfit for the same.
The Clause (iii) provides that the valid ages of marriage are different for that of a boy and a girl. The girl should be of eighteen years at the time of marriage while the boy should be of twenty in years. If this condition is not fulfilled, the marriage becomes voidable according to Section 12 of the Act. Also, according to Section 18 of Hindu Marriage Act, if anyone who procures a marriage for himself or herself in contravention of Section 5(iii), the punishment is defined to be for fifteen days and fine up to Rs. 1000.
The Clause (iv) prohibits marriage according to the degrees of prohibited relationships. Section 11 makes this kind of marriage void.
The Clause (v) of Section 5 prohibits marriage in Sapinda relationship. This marriage, if contracted, is void.

Section 11 and Section 12 provide the provisions for the void and voidable marriages. Section 7 provides that to constitute a valid marriage, the solemnization of the same has to take place. This means that the ceremonies have to be performed according to the set procedure in the Section. In the case of Bhaurao Lokhande v. State of Maharashtra,[vii] it was held that if any man does a second marriage, it will be declared void and the man will be liable to imprisonment which may extend to seven years

CONCLUSION

According to Hindu Law, marriage is a holy union which is responsible to devolve certain rights and obligations upon both the individuals and it is not a contract. Thus, it is important to note that the institution of marriage is sacramental in the context of Hindu law and is governed by the set provisions of the Act. The provisions are so defined and provided that the marriage cannot be said to be contractual in nature and in order to hold a valid marriage, it should be done according to the provisions of conditions and ceremonies of the Act.

[i] Horton and Hunt, Sociology p.216

[ii] https://highcourtchd.gov.in/hclscc/subpages/pdf_files/4.pdf

[iii] https://www.india.gov.in/search-find-marriage-registration-data-and-apply-online-marriage-certificate

[iv] http://legislative.gov.in/actsofparliamentfromtheyear/hindu-marriage-act-1955

[v] Mayne, John, Hindu Law & Usage, 14 th edn. 1998, Bharat Law House,1998

[vi] AIR 2000 SC 1650

[vii] AIR (SC) 1564

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This article has been written by Yash Dodani, a first-year student at NALSAR University of Law. He has tried to explain the similarities and differences between Law, Justice and Morality.

The three terms, viz, law, justice and morality are used interchangeably in terms of a common man. However, in legal terms, these terms are used differently. Although they have a similarity but they have differences too. We will try to understand the similarity and the differences. But let us first try to understand the meaning of all these terms separately to get more clarity in the parts where I will try to locate the similarity and the differences.

Law

What is Law?

Now when everyone will try to find the definition of the term Law, we will face a lot of problem to find a concrete definition. Law is that vast area where the definition is next to impossible to be accepted by the universe as a single definition. Law can be anything from the written statutes to the unwritten rules that govern the behaviour of the society from the ancient times. However, the Jurists have tried to find a working definition of the Law by taking something as a base. And that thing can be ‘nature’, ‘source’, ‘effects’ etc.

The society plays a major role in shaping of the law. Laws can’t be made against the will of the society. If any law is made against the society, the society will resist the law and will try to disobey it. The laws are made by the society, and the law govern the society in the sense that the law tells the society what they should do and should not do as a part of society. The society also acts as a part of the law, mostly in the unwritten manner. There are various things which we should do according to the rules of society, and if we don’t do so, the society will look down to us. For example – respecting the elders is an unwritten rule, which is not told by any law but told to us by the society.

Law is a social science which runs by the society. The law of any state cannot be rigid. It is because of the social changes by the time. There can be one offence at a particular time or place, but after some time, may it be a no offence? If the law is so rigid that it can’t accommodate itself with the changing society, that law is bad. If the law is so changing, there can’t be any concrete definition of the law. Hence the law can’t be defined by a single definition. To define law the analysis of various legal concepts against various disciplines like sociology, political science, history, psychology, economics is needed to be done with the element of logic and practicality, to meet the ends of justice.

Justice

The justice is a very age-old concept in the society. It can be done through law or without the law. When I say without the law, it means that justice can be administered without a law. The justice can be administered under the general principles of giving justice which are independent of the law. Every person is expected to live peacefully. Without the justice an orderly society is unthinkable. These lines were said by Salmond. Justice come up with rights, duties and equity which then after takes the shape of laws.

The justice ensures that there is a uniformity in the interpretation of the law [if any] and in absence, do justice to the innocent party in whatever way feels suitable. it expects everyone to be Impartial and just to others as well.

Justice in the Modern society

The modern law concept of justice is called as ‘Justice according to Law’. It implies that justice can be given without law as well. As various prominent authors have called it as ‘Rule of Law’. It also means that no one is above law. Law is the supreme rule in the modern society.

Civil Justice

The civil justice system involves the protection of rights in the first place and not the punishment. Just to give some sort of compensation, the court orders to give some amount of damages to the innocent parties. This ensures that they will refrain from committing the same wrong again.

Criminal Justice

The main aim of the criminal justice is to punish the offender. The crime is so harsh that if the offender is just asked to compensate the innocent party, it will not ensure that people will not commit the crime again and again.

There are various types of theories of punishment which were/are used by the courts in administrating justice and to reduce the crime.
1.Deterrent Theory
2.Preventive Theory
3.Reformative theory
4.Retributive theory
These are the punishments which are used to punish the offender
(For details on theories, visit my article on Theories of Punishment)

Morality

In the ancient time, there was no distinction between Law Justice and morality. In Hindu law, there were Smritis and Vedas. The Greeks in the name of ‘natural rights’ formulated a theoretical moral foundation of law. The Romans recognized moral laws based on ‘natural law’. In middle age, churches came in power and Christian morals were considered as the basis of law.
The morals are nothing but established rules when the human life was made. It means that morals are the basic human rights. It also means that those abstract rights which are in the public interest.

The law derives its authorities from the supreme state and not the established morals. When the church was removed from the power, it was said that law and morals are different. Austin said in the 19th century that the law and morality are two different terms and the law has nothing to do with morality. But he being too positivist, forgot that there is a relation in the law and morals. But at the same time, they are not the same.

The Distinction between Law and Morals

Morals are not laws, but are an end in themselves. It is followed by the people because it helps in improving the character of an individual. After all, they are good to follow. There are acts which are morally correct but are wrong as per the law and vice versa. Morals are universal and are not affected by the state. Morals are more related to the individuals and not the group per se. Roscoe Pound said “ As to the application of moral principles and legal principles respectively, it is said that moral principles are of individual and relative application; they must be applied regarding circumstances and individuals, whereas legal rules are of general and absolute application”

S.No.	Law	Morals
1	Tries to make society an Ideal one, but is dynamic	Is an end in itself.
2	Related to the society and to make it ideal.	Related to regulate individuals.
3	The conduct is looked and punished.	They look into the motive to do act, that motive could be correct morally.
4	They are followed because the law is backed by sanctions.	They are followed just because it’s good for the individuals to follow.
5	State is responsible to enforce it.	Individuals are left upon to decide if they want to follow or not.

Relation between Law and Morals

There are indeed a lot of differences between the law and the morals, but it does not mean that there is no sort of similarity. They are very closely related to each other. The type of law will determine how important the morals are to that particular law.

Morals are used to make the laws.
Morals are used to test the positive laws.
Morals as the end of the law.

Starting point of law

The law and morals have the same origin but have different developments throughout the time. There were common things between law and morality. The sanctions which were charged due to breaking of the law or the morals were the same. But after some time, the state thought that some things should have more sanctions and confided things, and this came out to be ‘law’.

The ruled which were for the ‘good’ of humanity but the state could not ensure its observance were left as they were. These are called ‘moral’. Thus, it could be said that law and morals have a common origin, but diverge in their development. Many rules are common to both of them such as NOT killing a person, NOT stealing.

Queen v/s Dudley and Stephen’s Case: 14 Queens Bench Division 273 (1884)

This is a very leading case in the English Law. This case features the need/necessity to commit an act to save the life of shipments. The facts are very interesting and the reasoning of the court is equally good. The defendants, in this case, were travelling in a ship to reach a particular purpose. However, in the middle of the journey, there was a thunder broke out and they were stuck in the sea. They stuck in so long that they ate their whole food and there was nothing left for them after some time. It was so worse that they were trying to however live somehow. But after some time, there was nothing at all left. With them, there was a boy of about 17 years old. That boy was sick and the other members of the ship thought that he is young and sick and might die anytime. And then they killed him and ate his flash. When they reached the destination, the police arrested him and charged for murder. The defendants took the defence of necessity.

The court held that the person can’t take the life of another to save his own life and was considered as morals. But the court decreased the punishment from death to life imprisonment.

Mr X v/s Hospital Z (1998) 8 SCC 296

Another interesting case on the front of morals, where the court again brought the similarity between the morals and the law. The facts were that a person had HIV+ he was about to marry a girl. But the hospital authorities gave the information of him being HIV+ to the girl whom he was about to marry. The boy filed a case against the hospital authorities and claimed that they should not have revealed the information without the consent of the boy. The hospital authorities claimed that they have done this on the moral grounds and hence they should not be held liable.

The court here held that the hospital authorities were not liable because the right of Ms A to be informed about the safety of her life will override the right of Mr X’s to privacy. The court said that in the public interest, there cannot be upheld of individual rights as it will be against the morals and not always law should be considered. The following lines were said.

“As a human being, Ms. ‘Y’ must also enjoy, as she is entitled to, all the Human Rights available to any other human being. This is apart from, and, in addition to, the Fundamental Rights available to her under Article 21, which, as we have seen, guarantees “Right to Life” to every citizen of this country. This right would positively include the right to be told that a person, with whom she was proposed to be married, was the victim of a deadly disease, which was sexually communicable. Since “Right to Life” includes right to lead a healthy life to enjoy all faculties of the human body in their prime condition, the respondents, by their disclosure that the appellant was HIV (+), cannot be said to have, in any way, either violated the rule of confidentiality or the right of privacy. Moreover, where there is a clash of two Fundamental Rights, as in the instant case, namely, the appellant’s right to privacy as part of right to life and Ms. ‘Y’s right to lead a healthy life which is her Fundamental Right under Article 21, the RIGHT which would advance the public morality or public interest, would alone be enforced through the process of Court, for the reason that moral considerations cannot be kept at bay and the judges are not expected to sit as mute structures of clay, in the Hall, known as Court Room, but have to be sensitive, “in the sense that they must keep their fingers firmly upon the pulse of the accepted morality of the day”

Morals as a test of positive law

Morals can be used to check if the law is being more positive or not. If the law will not consider morals, it is very positive. But it is not that the positive laws will not be binding, laws are made to be binding on the people. In those laws where strict liability will be read, we can’t say that it will consider morals in determining the cases. Morals are used to test the extent to which laws are positive.

Conclusion

Hence the law justice and morals have a difference but at the same time are related to each other. Morals have often been considered the end of the law. Many jurists have defined law based on ‘Justice’. Thus, there is a relationship between law justice and morality. Most jurists say that the end of the law is to secure ‘justice. Justice has more or less been defined in the terms of ‘morals’. Thus, the law is used to give an idea of both morals and justice.

In modern terms, there is a lot of difference between the law and the morals, justice being the base of law.

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Nikhilesh Koundinya is a student of Symbiosis Law School, Pune. In this article, he has discussed the constitutional validity of death penalty in India. He has mentioned case laws which paved the way for the death penalty in India. He has also highlighted the arguments for and against the death penalty. To conclude he has discussed the reliefs a person can seek once he is sentenced to the death penalty.

INTRODUCTION

On March 20, 2020 at 5.30 AM the four rapists of the Nirbhaya case were hanged to death. This is because they had committed such a gruesome act that the court after 7 years held that they were fit for the highest punishment in the Indian legal system which is death penalty also known as capital punishment. Under the Indian Law hanging a person is the only form of death penalty. But under the Army act of 1950 even shooting a person is regarded as a death penalty. India is one of the 78 countries in the world that still follows the system of death penalty. According to a study by the National Law University of Delhi, 755 people have been hanged in Independent till now.[i] Coming to the death penalty as an offence, there are divided views amongst people on whether it should be valid or not:

IS DEATH PENALTY A VALID PUNISHMENT OR NOT?

Many people have questioned the notion of death penalty with regards to the clause of Right to Life under many constitutions of the world. The argument people favouring death penalty give is that, the pronouncement of capital punishment is given in the rarest of rare case and hence if you have murdered someone you should also be murdered. This essentially means that when you murder someone or commit such a gruesome act which shakes the conscience of a population or court you have lost your rights guaranteed to you as a human. Hence you should be given a death sentence. It is also believed that such an act restores the balance of the society. If a murderer kills and is not sentenced to death he may come out of jail and kill again. Hence the concept of violence will prevail in society. So, for the balance of society to be maintained death sentence is essential.

The people against death penalty have stated that the main aim of the court when pronouncing death penalty is to cause deterrence. But there is no deterrence caused in people because future criminals still commit the act irrespective of the judgment the court administers. The argument to this was first established in 1973 when Issac Ehrlich due to his research stated that for every inmate who was given the death penalty 7 people left the idea of committing murder. Essentially there was deterrence caused in people due to which they didn’t commit murder.[ii] Another professor named Ernest Van Den Hagg stated that the death penalty is liked to deter much more than any other punishment because people fear death the most.

There has also been an argument put forward which states that the death penalty deters the accused from committing the act again. This means that it incapacitates the person from ever committing the crime. It is believed that a person who has murdered once will murder again. Hence the death penalty acts as a punishment which not only deters but also administers as a punishment not allowing to accused to commit the act again.

INDIAN POSITION REGARDING DEATH PENALTY

In India the following offences are punishable with the death penalty:

Section 302[iii]– this section relates to punishment for murder. Under the ambit of murder, the accused may be punished to death penalty or life imprisonment.
If a person is committing robbery and, in the process, murders a person, he/she will be imprisoned for life or given the death penalty.
If any person commits a terrorist activity which leads to several deaths the persons committing such acts will be given the death penalty. A few cases to remember here are the death penalty pronounced on Ajmal Kasab and Muhammad Afzal. Both of these terrorists were hanged for committing terrorist activities in Mumbai and the parliament in Delhi.
If a person commits rape which leaves the victim under a vegetative state or causes the death of the victim, he/she can be given the death penalty. This rule stated under the Criminal Law (Amendment) Act, 2013 after the heinous Nirbhaya rape case which took place in Delhi. Also, if a person rapes a girl under 12 years he can be sentenced to death. This was held under the criminal law ordinance 2018 after the rape of an 8-year-old girl named Asifa Bano in Jammu and Kashmir.
Section 364A[iv]– according to this section if a person kidnaps someone and threatens to kill him/her and actually commits the threat he/she may be sentenced to a death penalty.
If a person commits the act of treason to wage war or cause mutiny in the country, he/she may be sentenced to death by the court.

Having learnt the offences in which the court can pronounce the accused to death penalty we will now look at cases in India which have led the way in deciding the constitutionality of death penalty:

The first challenge to the death penalty came in the form of Jagmohan Singh v State of Uttar Pradesh.[v] In this case, the question before the court was whether the death penalty was violative under article 14, 19 and 21 of the constitution. The court held that it wasn’t violative of these provisions as the death penalty was carried out with the procedure established by law. It also held that the judges made a decision to impose the death penalty or life imprisonment on the basis of the facts and circumstances of the case.

The next challenge that came was in the form Maneka Gandhi v Union of India[vi] where the court had held that just because a law satisfied the requirement of one fundamental right, it was not exempt from operation within the scheme of other fundamental rights as well. Specifically, in order to be considered constitutional, a law needed to pass the test of Articles 14, 19, and 21 collectively. Further, this judgement asserted that any procedure established under Article 21 needed to be ‘fair, just and reasonable,’ and couldn’t be ‘fanciful, oppressive, and arbitrary.’ With this being the framework, the court made the landmark decision under Bachan Singh v State of Punjab[vii].

BACHAN SINGH V STATE OF PUNJAB

In this case, Bachan Singh was sentenced to the death penalty for the murder of Durga Bhai, Veeran Bhai and Desa Singh. The main objective of the court was to find out whether the death penalty could be continued as a practice or was violative under article 14,19 and 21 of the constitution?

Article 19 of the constitution

The main contention before the court was that the provision of the death penalty was against article 19 of the constitution because it took away all the freedoms enumerated under clause (1) of the said article. The court held that this was a wrong assumption as the said article was not absolute in nature. The rights under the said article could be restricted upon the discretion of the state and hence the state could restrict these articles in certain circumstances. Also, somebody’s enjoyment should not lead to restricting the other person from enjoying his/her rights. Hence the court held that the issue of article 19 was resolved due to these arguments.

Article 21 of the constitution

After Maneka Gandhi article 21 was interpreted in a way which stated that a person could be deprived of his life and personal liberty in accordance with fair, just and reasonable procedure established by law. This essentially meant that a constituent assembly could withhold the persons right through a fair and reasonable justification. Thus, the death penalty took away this right for punitive purposes. That means to set an example for others and cause deterrence the rights of the accused could be taken away.

Article 14 of the constitution

The final contention was under article 14 of the constitution where the court held that it is a said principle that unequal’s must be treated unequally. Here due to committing the heinous and gruesome act the accused had lost the essence of being called a human because the act he committed shook the conscience of the court and the general public. Also, sometimes the judge may pronounce one person for life imprisonment and the other for the death penalty. This wasn’t violative of article 14 either as each one got punished depending upon the part, he played in the crime considering there wasn’t any common intention. Also, further judgements restricted the courts to apply the death penalty in only certain cases and certain circumstances and hence the process was per se not arbitrary.

The main take away from this judgement was the fact that the judges pronounced that the punishment of the death penalty will only be awarded in the “rarest of rare cases.”

MACCHI SINGH V STATE OF PUNJAB

Even after the Bachan Singh case had been settled the law on the death penalty wasn’t clear. The question on what constituted rarest or rare cases was still pending. Finally, in the case of Macchi Singh v State of Punjab[viii] the court held that there were five categories which needed to be examined before awarding a death sentence:

Manner of commission of murder- when an act is done which is beyond heinous or are stated before shakes the confidence of the public and courts. For example, burning somebody’s house when they are in it, committing rape and then injuring the victim in her private parts etc.
Motive– this is one of the most important aspects the court looks into when you are sentencing somebody to the death penalty. If the motive is based on meanness for example to inherit property or to betray one’s motherland.
Anti-social nature of the crime- this refers to crimes committed against scheduled castes or tribes. This refers to a situation where the crime is committed due to social wrath. For example, honour killing or dowry death etc.
Magnitude of the crime- this refers to how many people have been affected by the crime. Has the crime targeted a major population or has it targeted an isolated population of a particular caste or creed?
Personality of the accused- another major thing which the courts examine is why the accused committed the crime. What is the personality of the accused and what are the circumstances in which he committed the crime?

In the cases of Sher Singh v State of Punjab [ix]and Triveniben v State of Gujarat[x]the court held that death sentence is constitutionally valid after the judgement in Bachan Singh and should be accepted as the new law of the land. Also, there is nothing in the constitution which holds the death penalty as unconstitutional.

RELIEF FROM DEATH PENALTY

Article 72 of the constitution talks about a mercy petition which can be filed with the president of India for a pardon, reduction of sentence, changing or lowering the degree of punishment etc. this essentially means that after exhausting all other reliefs the accused can approach the president for a mercy petition.

Article 161 of the constitution talks about respective states granting pardon to people. Here the governor has the same power as the president to grant pardon in cases where the state has control.

CONCLUSION

The law on death penalty is constitutionally valid but many say is not achieving the purpose it was promulgated for which was to cause deterrence in criminals. Others hold that it is an effective tool and many people are stopped from committing crimes as people are most afraid of death. This will always be a disputed aspect of law but I would like to conclude with a quote by JRR Tolkein:

“Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgement.”

[i] https://theprint.in/theprint-essential/rarest-of-rare-history-of-death-penalty-in-india-and-crimes-that-call-for-hanging/383658/

[ii] https://www.nber.org/papers/w0018.pdf

[iii] Section 302, Indian Penal Code, 1860

[iv] Section 364 clause (a) of the Indian Penal Code, 1860

[v] AIR 1973, SC 947

[vi] 1978 SCR (2) 621

[vii] 1980 CriLJ 636

[viii] AIR 1983, SC 957

[ix] AIR 1983, SC 365

[x] (1983) 2 SCC 277

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