This article is
written by Anurag Maharaj, student of law at
Lloyd Law School, Greater Noida. I have tried to define the word ”Tort” and
its ingredients in this article.
INTRODUCTION
Tort is derived from Tortum which is a Latin word that means twisted act. Tort is a civil wrong. It is not a crime or a criminal offence. Some torts such as defamation, simple hurt etc. are crimes as well. Civil wrong implies that the remedy for the tortuous action will be available in a civil court and not a criminal court.
It needs to be a legal
duty which is violated. A violation means not obeying and violating a rule
either by not doing something that the law allows you to do or by doing
something that should not be done).
EssentialIngredientsofTort
The
essential ingredients of tort are:
1. Wrongful Act/ Wrongful Omission by Defendant
2. Legal Injury
3. Legal remedy
1.Wrongful act
There must be an error or some act on the defendant’s part.
An act or omission is incorrect if the individual claimed to be held
responsible had a legal obligation to do so. Legal recognition should be
granted of the specific act or omission. That shouldn’t be a legal or social
fault. It may be intentionally or negligently committed.
Examples: Committing a
trespass, defamation, false imprisonment etc.
An unjust act must be performed for a tort to occur. This may occur either by execution of the tort i.e. a wrongful act that is actually performed or by Omission i.e. the act that were meant to be done but were not done.
Glasgow Corp. v. Taylor 1922 1AC 44
Glasgow Corporation was in charge of maintenance of a public park which contained a poisonous tree. A child who was playing in the park plucked a fruit from the poisonous tree and died upon consumption. It was held that Glasgow Corp. is liable for tort because of their wrongful omission of not cutting off that tree, or erecting a fence or a warning to dissuade or adequately warn the public about the poisonous tree.
Christie v. Davey 1893 1Ch. 316
Christie and Davey were neighbours. Christie used to teach music at her home which used to annoy Davey. Davey started banging on the walls of Christie’s house and behaved abusively and tormented the students and did not allow classes to function. It was held that actions of Davey were tortuous and the same were ordered to be stopped by an injunction
2. Legal damage
“Damage” means the harm or injury that a person has suffered or is expected to suffer as a result of any wrongful act of another person. The difference between the terms “damage” and “damages” is that the damage refers to the loss suffered by someone while damages refer to the compensation awarded by the court to the victim for the losses suffered by him.
There are two maxims
that help us decide whether a defendant has a legitimate argument in tort law
i.e. whether he can bring a person to court or not. They are: Injuria Sine
Damnum and Damnum Sine Injuria
Injuria Sine Damnum
Legal
injury without actual damage. It is a tort which is maintainable for
restitution by unliquidated damages in law.
Ashby v. White 1703 2 Lord
Raym 938
Voter was stopped from casting his vote by policeman. Even
though the candidate who voter wanted to vote for won and there was no actual
damage, yet the voter was held entitled to damages because he suffered a legal
injury i.e. his right to vote was violated
Bhim Singh vs State of J K
AIR 1986
Plaintiff was an MLA and was wrongfully arrested while going to assembly session. He was not produced before a magistrate within the requisite period. It was held that this was the violation of his fundamental rights. Even though he was released later, he was awarded 50,000RS as exemplary damages by SC.
Damnum sine Injuria
Damage
without legal injury. For instance, a Sagar Ratna Restaurant suffered heavy
losses when McDonalds outlet opened nearby. There was damage to the finances of Sagar
Ratna, however no remedy lies. Since opening of McDonalds outlet causes no
legal injury to Sagar Ratna.
Gloucester Grammar School 1410 Y.B. 11 Hen. IV of 47
The defendant opened a school with cheaper fees next to
plaintiff’s school which lead to economic losses to the plaintiff. However, the
plaintiff had no tortious action because Damnum sine Injuria was applicable.
There were damages caused but they did not constitute a legal injury.
Chesmore vs Richards 1879
Plaintiff had been drawing water from underground for the past 60 yrs. The defendant sunk a bore well on his land and drew huge quantity of water which diminished the water supply of the plaintiff. It was held that the defendant was not liable because he was only exercising his right and did not violate any right of the plaintiff
3. Legal Remedy
The wrongdoing done by the defendant should come under the list of wrongs for which the remedy is a common-law action. A civil injury is a tort, but not all of them. An appeal for damages is the necessary cure for tort, but certain remedies may also be obtained, for example, in addition to damages in other instances of wrongs, or the complainant’s own intervention without going to trial, i.e. self-help
Ubi Jus Ibi Remedium
The literal meaning of the maxim is where there is a wrong there is a remedy. Sardar Amarjit Singh Kalra v. Promod Gupta & Ors., The court held that the principle of ubi jus ibi remedium is accepted as a basic concept of the law. The Supreme Court also held that it is the court’s responsibility to protect and preserve the right of parties and to support them, rather than denying them relief.
Conclusion
So, If the rights of a
person are violated by another person then, he can claim for compensation from
the wrongdoer for the loss that he suffered. This helps in respecting the
rights of each and every person.
There are three constituents of torts:
Wrongful
act: a wrongful act must have done on the
defendant’s side.
Legal damage: Due to the wrongful act, there must result in legal harm of another person.
Legal remedy: The wrongful act must be of such a kind that it should have a legal remedy in the form of a damages action.
This Article is written by Ritesha Das, Symbiosis Law School, Hyderabad. In this article, she has discussed the admissibility of oral and documentary evidence.
INTRODUCTION
The legal definition of evidence is neither static
nor universal. Medieval interpretation of evidence in the era of
trials by ordeal would rather be unfamiliar to the contemporary
sensibilities and there is no approach to evidence and facts that is
accepted by all the legal frameworks of the modern world. As the saying goes,
‘A wise man puts his assurance in the evidence.’ Facts and evidences play a
significant role in the judicial process. Like in the course of the trial, it
is the testimony that determines whether or not the defendant is guilty. This
evidence is broadly classified under two categories: Oral evidences and
Documentary evidences. As the name suggests, the oral evidences involve the
oral testimony of the witness whereas Documentary evidence refers to written
documents or reports in written or recorded form created as testimony before
the courts. Due to the surging malpractices, certain requirements have been
defined during the submission of evidence before the court in order to preserve
the justice to be offered to the perpetrator of the crime.
ORAL EVIDENCES
Over a period of time, the significance of the oral testimonies has been acknowledged in the Indian courts. The term ‘oral evidence’ simply means oral testimony of the witness after the undertaking of an oath. It has been introduced under the sphere of Section 3 of the Indian Evidence Act. It has been further elaborated under section 59 and 60 of the Indian Evidence Act. In order to foster the resolution of cases and to ensure that justice prevails, the courts have made a few modifications and made oral testimony an integral aspect of the criminal proceedings. Section 3 of the Indian Evidence Act explicitly states that oral evidence includes all the statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry.
The Courts in India are well acquainted with the fact that oral testimony is much less reliable than documentary evidence. But that can’t be a justification for the nullification or invalidation of the oral testimony. Courts in India are well acquainted with the fact that oral testimony is much less reliable than documentary evidence. But that this can in no way be a justification for the invalidation of oral testimony. In order to ensure that oral evidence is not abused or manipulated and does not obstruct the administration of justice, a range of requirements have been set out:
Oral evidence must be aligned with the situation; it should be accurate and does not deviate through cross-examination.
In the case that oral evidence corresponds to a fact that has been seen, they must be the witness has witnessed the incident. The evidence of the witness should not be centred on the perspective of any other intermediary.
The court has the discretion to order the correct documentation supporting the oral testimony would have to be collected and submitted.
The Information Technology Act (2013) and the Criminal Law (Amendment)
Act (2013) are the two recent laws in the Indian legal sphere which further
expanded the orbit of evidence. The Information Technology Act, 2000 elaborated
the concept ‘evidence’ by incorporating electronic records as testimony that
must be presented to the court. Evidence under the Criminal Law (Amendment) Act,
2013 was a victory for the women victims as their character could no longer be
challenged or questioned in the shield of evidence.
DEBATE ON THE ADMISSIBILITY OF ORAL EVIDENCE
The maxim of ‘Falsus In Omnibus’, meaning ‘False in one thing is false in everything’ highlights the credibility of an oral statement according to which it is a blend of both truth and lie. But every adage entails certain exceptions which aim to strengthen the rules rather than contradicting it. Such exceptions can be applicable in few different cases, because they should not really deviate from the intent of the main rule if other considerations are taken into account, thereby further stressing that the rule is what must be enforced in the majority of circumstances. Hence, the application of the above maxim was discarded as it questioned the reliability and credibility of every oral testimonial. The case of Ugar Ahir V. State of Bihar[i] ruled that this adage is neither a rational rule of law nor a rule of practise on the ground that it barely comes across a witness whose testimony does not contain an element of truth or, at any rate, inflated fabrication or embellishment. It is the responsibility of the court to scrupulously analyze the evidence and to extract the elements of truth. The entire evidence of a witness can’t be discarded unless its elements are intrinsically mixed up, is impossible to separate the chaffs from the grain.
ADMISSIBILITY OF TAPED EVIDENCE
The question of admissibility of evidence recorded in a tape had also emerged during the debate of the credibility of the oral evidences. This question was solved in the case of Pratap Singh v. State of Punjab in which the Supreme Court held that it can only be served as corroborative evidence (Indirect or supportive evidence) and is admissible only if the court is satisfied with the fact that it has not been tempered or dubbed. The term evidence shall equate to any assertion which the court can or can compel a witness to make before it in relation to the facts of the case under examination, that shall be referred to as oral evidence. The documents such as electronic records produced for scrutiny by the Court; such documentation shall be referred to as documentary proof or evidence. Accordingly, it is crystal clear from the above-mentioned provisions that the statute monitors the information stored on magnetic or electronic devices and considers it is a form of oral evidence which falls under the ambit of documentary evidence as per Section 3 of the Indian Evidence Act, which explicitly states that electronic records produced in the court fall under the sphere of documentary evidence.
The tape-recorded conversation can be quickly wiped away by subsequent recording, and the substitution could be superimposed. However, this aspect should have an influence on the weight to be added to the testimony and not on its admissibility. In the end, if there is a well-founded intuition in a particular case that there is no evidence that the recording of the tape has been tampered with, it would be a rational reason for the court calling for real insight to its evidentiary value. In the case of Ram Singh v. Col. Ram Singh[ii], the following criteria have been set out by the Apex Court for the admissibility of tape recording conversation:
The voice of the speaker must be correctly recorded by the maker of the record or by those who know his voice. Where the maker has refuted the voice, very tight concrete evidence would be needed to decide whether or not it was actually the speech of the speaker.
The authenticity of the tape record shall be decided by the maker of the record through acceptable evidences being direct or circumstantial.
Any possibility of tempering or deleting a part of a tape-recorded statement must be ruled out; otherwise, the said statement may be declared out of context and therefore inadmissible.
The assertion must be relevant in compliance with the rules of the Evidence Act.
The registered cassette must be properly sealed and kept in secure or official custody.
The voice of the speaker should be clearly audible and not obscured or distorted by other sounds or disruptions.
THE EXCEPTION OF HEARSAY RULE
Hearsay evidence can be described as ‘a statement except the one given by an individual during oral testimony in the proceedings,’ which is ‘inadmissible as evidence of any facts alleged. In simple words, hearsay evidence means the second-hand evidence which the witness had gathered from the medium or perspectives of an intermediary present in the concerned situation. A befitting example would be the evidence of a murder scene gathered by the witness by relying on the words of his neighbour. In the above case, the evidence of the witness is inadmissible unless he has witnessed the entire scene and has his own perception rather than relying on the statements of his neighbour. But if that neighbour witnessing the entire situation is presented as a witness, then his evidences will be admissible. The rationale of the inadmissibility of the evidence circulated by an intermediary can be applied as an interpretation of equity and justice being centred on the assumptions questioning the reliability and credibility of the information to be extracted through the evidence due to the fact of being circulated by an intermediary.
A BRIEF HISTORY OF ORIGIN OF THE HEARSAY EVIDENCES
The origin of the oral evidence rule can be traced during the period of 1500s, reflecting a minor deviation from the manner of justice as it was solely based on a jury, which clearly permitted and condoned the method of collecting evidence from knowledgeable people that had not been called to court; and hence oral evidence has first acknowledged the mechanism of bringing witnesses to court in a positive light. At the beginning of the 17th century, there was a digression in the style of the trial of the witness which no longer stemmed on the evidence of the individual testifying. It might be borne out of his own opinion or from the pieces of information assembled from the third parties, as in the case of judges, but on the true insight of the facts rather than relying on his own perceptions or what he may have gathered from others. Thus, in the 18th century, the concept of evidence was gradually acknowledged and implemented strictly in legal trials and second-hand witnesses, or the testimonies of persons, not centred on their own observation or interpretation of the truth required to be proven, became inadmissible in the court of law. The same standards of common law had also been adopted by the British and were incorporated into the Indian legal system and can be found in Section 60 of the Indian Evidence Act, 1872.
EXCLUSION OF HEARSAY EVIDENCES
The hearsay evidences are considered inadmissible under the court of law
due to the following reasons:
Hearsay evidences are free from cross-examination due to which the authenticity and reliability of the assertions can’t be tested.
The chances of fabrication is higher due to the depreciation of truth. Moreover, these evidences don’t involve the undertaking of any personal liability or oath by the original declarant.
The possibility of substitution of weaker for stronger evidence is higher.
Being protected from legal investigations, hearsay evidences are generally weak and fabricated.
EXCEPTIONS OF THIS RULE
Res gestae: This maxim simply means ‘things done, including words spoken that form part of the same transaction.’ An individual’s assertion can be confirmed by another individual who acts as a witness if the assertion is part of the transaction in question.
Admission and acknowledgement: An extra-judicial confession or an acknowledgement which is claimed to be proven by the evidence of a witness to whom such admission or acknowledgement is rendered is admissible as an exception.
Statement under section 32 of the Indian Evidence Act: According to this section, the assertions made by a person who can’t be presented before the court due to their death or ailment or incapability to testify or resulting in excessive duration or delay in the judgment of the court, is admissible as an exception to this rule.
Evidence presented in the prior proceeding: The evidence presented by the witness in the trials can be used as a testimony for the validity or establishment of the facts set out in any subsequent proceedings between the same parties, in case the witness has died or is unavailable for any reason.
Statement in public documents: The statements in the public record such as Parliament’s Acts, official books and records may be proven by only producing the document or the record rather than producing the draftsman before the court.
DOCUMENTARY EVIDENCES
Documentary evidence means any evidence introduced in
the court in the form of documents or records, being distinct from
the oral evidence. Documentary evidence
is commonly intended to refer to texts on paper (such as invoices, contracts or
wills), but the scope may extend to any medium through which data can
be stored, such as photos or any medium that needs to be accessed by a
mechanical device, such as tape recording or film or any printed form of
digital evidence such as e-mails. The admissibility of the documentary evidence
depends on the authenticity of the document laying the foundation of the
evidence.
One of the key points to be noted while submitting any evidence in the court is that the submission can only be made in the form of primary or secondary evidences. The term primary evidence means the original document presented in the court for the verification or inspection. Being the main source of evidence, it can be submitted without prior notice. Secondary evidence simply means alternative evidence submitted with a prior notice, which is admissible by the court under certain conditions. In the case of Ram Prasad V. Raghunandan Prasad[iii], the court held that the evidences must be submitted either in the form of a primary document or in the form of secondary evidences or oral accounts of the contents. The cardinal rule is to submit the best evidence under the court of law. Primary evidence has been regarded as the best evidence, whereas the admissibility of secondary evidences is questionable unless the originality and authenticity are proved.
ADMISSIBILITY OF PRIMARY EVIDENCES
As per section 62, primary evidence refers to the original document itself submitted for the scrutiny of the court. It is evidence that the law asks first. If the original document is submitted for assessment by the court, it shall be referred to as primary evidence. For instance, R draws a bill of exchange of Rs 10000 against S. But on the due date of the payment, S denies the acceptance of such bill due to which R filed a suit of recovery of the amount. If R submits the original document to the court proving the execution of the bill of exchange specifying the borrowed amount, that document will fall under primary evidence.
If the document is fragmented or duplicated in various copies for the execution of any agreement, each party retaining the same copies of the document can submit it as primary evidence. For example, R and S enter a contract. The written contract between the parties will be fragmented into two documents so that both the parties can retain the written document. In this case, both the copy of the documents is considered as primary evidence. If the document is divided and enforced in counterparts, each counterpart will serve as the primary evidence against the parties enforcing the document. The agreement or the document will fall under the enforcement in counterparts only if each instrument is signed by one party and forwarded to the other. The document will be primary evidence against the party enforcing it out but will be secondary evidence against the other party who did not execute it.
If all the documents are printed in the same standardized or uniform process, each one of them will be regarded as the primary evidence of the content of the others. The copies of the common original cannot be regarded as primary evidence of the content of the original. In the case of Jeevanantham V. State through inspector of police[iv], the school certificate prepared on the basis of admission is the only secondary evidence and, as such, the school certificate prepared on the basis of the admission form cannot be acknowledged in evidence as primary evidence but only as secondary evidence in the absence of proof that the primary evidence has been lost.
If a number of documents are all made by one uniform process, as in the
case of printing, each is primary evidence of the content of the rest. If they
are all copies of a common original they are not primary evidence of the
contents of the original. In the case of Jeevanantham V. State through
inspector of police, the school certificate prepared on the basis of
admission is the only secondary evidence and as such the school certificate
prepared on the basis of admission form cannot be admitted in evidence as
primary evidence but only as secondary evidence in the absence of the proof
that the primary evidence was lost.
ADMISSIBILITY OF SECONDARY EVIDENCE
Secondary evidence means alternative evidence submitted with prior notice, the admissibility of which is subjected to certain conditions. Secondary evidences are defined under Section 63 of the Indian Evidence Act, according to which ‘secondary evidence means and includes: (1) Certified copies (2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies; (3) Copies made from or compared with the original; (4) Counterparts of documents as against the parties who did not execute them; (5) Oral accounts of the contents of a document given by some person who has himself seen it.[v]’
This section is detailed with respect to the forms of supplementary proof admissible under the Act. It is evident from the phrase “means and includes in this section” that the five clauses relating to secondary evidence are comprehensive. However, being alternative evidence, secondary evidences are not mechanically admissible unless an adequate justification for the non-submission of the original report or document is given.
The authenticity of the authorized copies shall be presumed in compliance with s 79, but that of the other copies must be established. This testimony can be provided by bringing a witness to acknowledge that he has compared the copy submitted in court with the original one. The certified versions of money lender licenses are admissible in court.
The types of secondary evidences include: Certified copies, copies prepared by a mechanical process, Counter foils, Photographs, Xerox copy, Photostat copy, Carbon copy, Types copy, Summary on a civil subject for the workshop, Tape records, Copies made from or compared with the original copy, Counterparts, Oral accounts, Registration copy, Unprobated will, Age certificate, Voters list and Newspaper report.
MODES OF CERTIFYING A DOCUMENT
The facts and details of private records or documents are
verified either by primary or secondary evidence in the light of Sections 61 to
66, the authenticity is identified by the incorporation of evidence in
accordance with Sections 67 to 73, or the validity of their contents is
generally determined by independent, direct or circumstantial evidence.
An accurate published document will only be acknowledged at the final
hearing of the proceedings. It’s up to the party to justify a statement that
they decide to rely on it. The authenticity or accuracy of the contents of
the document must be proven by oral testimony and the details of the document
must be determined through the introduction of primary or secondary testimony.
A document is generally considered to be proved and certified under
the following three conditions:
Proper execution and
interpretation of the document, i.e. the writing or signature of the
writer, if any, is shown.
Scrutinizing the contents of the
document.
Establishing the authenticity of
the contents of the document.
The Evidence Act differentiates between the ‘Private document’ and
the ‘Public Document’ and the above-mentioned requirements for the verification
of the document do not extend to the ‘Public Document’ due to certain grounds
of special rules and presumptions set down by statute.
Execution and interpretation of the document
The verification of the signature or writing of the document is executed to light up the authenticity and genuineness of the document. The party submitting the document as evidence must have the handwriting or signature of the writer, verified by the writer himself under Section 67 of the Act or by any other party familiar with the handwriting in question under Section 47 of the Act. In addition, the signatory can himself acknowledge that he has signed or executed a document which dispenses with the evidence of that document under Section 58 of the Act. In addition, according to Section 73 of the Act, the court itself is empowered to evaluate the handwriting or signature in issue with the accepted ones approved by the court. Under other cases, as set out in Sections 79 to 90(A) of the Evidence Act, the court is allowed to assume that the signature of the author and the evidence itself is authentic. Thus, according to Section 79, the court can assume that authorized copies are genuine. A signed document or handwriting is often referred to as pure ‘formal testimony of a document’ because the testimony of the document does not inevitably contribute to authentication of the content of the document.
Scrutinizing the contents of the
document
The content of a document will normally be verified by the key evidence.’ However, if the party is not in a position to provide the primary evidence, then according to the grounds set out in Section 65 of the Act, the party is able to provide secondary evidence to support the substance of the text. The presentation of the Content as evidence is not equivalent to the authenticity of the contents. The distinction was drawn in the case of Om Prakash Berlia v. Unit Trust of India,[vi] where it was stated that the term ‘content of the document’ under the Evidence Act would signify only ‘what the document states and not the validity of what the document states,’ and that the meaning of the content of the document cannot be established merely by the submission of the document. For example, a letter is submitted as being written by ‘A’, comprising of a statement involving ‘B’ paying a sum of money to ‘C’ in his presence. If the ‘contents’ of the letter are proven, then it can be said that the letter was written by A. But that doesn’t mean B has paid that sum to C. Therefore, the ‘truthfulness and authenticity of a document’s contents’ must be proven precisely.
Establishing the authenticity
Section 67 of the Indian Evidence Act stipulates that personal knowledge must prove the truthfulness of the contents. The witness who was appointed by the party deciding to rely on a document must usually have personal knowledge of the document. Such witness, in other words, should be the author of the document. This is evidence under the purview of oral evidence laid down in Section 59 of the Indian Evidence Act. However, in the case of Bhima Tima Dhotre v. Pioneer Chemical Co[vii]., the court noted that in order to verify the document, it was not essential to call the author of the document because documentary evidence would be futile if the author had to be called in every case. It can, therefore, be said that the facts of the contents of the document must be established either by the author or by ‘the person who knows and comprehends the contents,’ i.e. the person who has personal knowledge of the document.
CONCLUSION
Oral admission is regarded as a testimony against the individual making the false argument which may not be binding in reality. Admissions duly verified are admissible testimony immaterial of the fact that the party making the statement stood in the Witness Box. In addition, admission is the best substantial evidence that an opposing party will rely on it. The value of admission of the evidence by the government is only significant and not absolute unless the party to which it is rendered has behaved and thereby altered its detriment. While oral testimony is of lesser significance than written evidence, it may be taken into account by the court with some corroboration. In a short statement, all oral and written testimony is presented by the parties. In the court of justice, the importance of documentary testimony is significantly higher than that of oral evidence. Because the statute also demands the best evidence, and oral testimony is evidence, which is information that is constrained to written or oral phrases. There are two angles of documentary evidence. Primary evidence is more credible and the correct testimony to be found by the court of law. In the absence of primary testimony, secondary testimony is submitted, indicating that the witnesses were provided on the basis of their own perspective, whereas under primary evidence, the original document is sent to the court of law for review. Direct testimony is the best key to show that it has been established. The documentary evidence eliminates and exempts oral testimony and prevails above oral evidence when presenting evidence as witnesses to the court of law. The party submitting the evidence is eligible for cross-examination to test its authenticity. Oral evidence can’t be replaced for documented evidence if there is a written record of the testimony of such crime events referred to under Section 91 as a written deposition, which is more probable and more accurate than oral evidence.
This post is written by Anushree Tadge, 3rd year law student of ILS Law College, Pune, she tries to explain briefly what the concept of free consent is and why it is regarded as foundation stone of other Acts like Transfer of Property Act, Company Act, Family Laws etc.
Introduction to ‘Free Consent’
‘Consent’ as a word is heard very often by individuals around the globe, as the feeling of ‘individuality’ is given importance more and more, consent as a provision is also evolving. Derived from the Merriam Webster dictionary, ‘Consent’ is explained as ‘compliance in or approval of what is done or proposed by another.’
In simple words a voluntary agreement of one party to the proposal of others in order to reach or not reach the desired motive. Now even consents are of different types, these include implied, expressed, informed consent and unanimous consent. But, again for a person to provide consent, he/she should not be diagnosed with a mental disorder, age more than 18 years etc along with the major factor being the consent should be voluntary and not affected by any form of coercion. Fraud, undue influence.
‘Free Consent in the Indian Contract Act, 1872’
Section 13 of the Indian Contract Act, 1872 (hereinafter referred to as Act) defines the term ‘Consent’ as Two or more persons are said to consent when they agree upon the same thing in the same sense.
For example, suppose there are two parties in a contract, A and B. It was seen that there was some land and “A” put a proposal to sell. “B” after being made aware of this proposal, analysed that it was the perfect opportunity, agreed to it. In this case, both parties showed their consent.
The principle of consensus-ad-idem is to be followed in contractual agreements.
Section 14 of the Act states that Consent is said to be free if the following factors are satisfied:
If the consent is free from coercion.
If the contract is not done under any undue influence.
If a contract is performed without any fraud.
The contract should not complete with any misrepresentation.
The contract should not be agreed to by mistake.
If there is no consensus, moreover free consensus between parties is very vital for the contact to be binding and legitimate. In case there is no free consent, the voidability of the contract depends if the aggrieved party wishes to challenge the legality of the contract leading them to be ‘voidable’ in nature.
Coercion
According to Section 15, it is the committing or threatening to perform, any act that is forbidden by the Indian Penal Code, 1860; or (ii) the unlawful detainment or threatening to do the same of any property, to the prejudice of any particular person, with the intention of leading any individual to enter into an agreement.
In the famous case of Ranganayakamma Vs. Alwar Setti (1889), A Hindu Widow of 13 years, was coerced into adopting a boy under the threat of not allowing cremation of her husband’s death. Following which, the widow feared and adopted the boy. Later she even applied for cancellation of the adoption. It was held that the adoption was voidable at her option as her consent was not free it was rather obtained by coercion is an offence under Sec 297 of the Indian Penal Code.
Now for cases where coercion is obtained by threats like ‘filing a suit’, it will also fall under the same category, because it is explicitly stated as an offence by the Indian Penal Code. In another interesting case of Ammiraju v. Seshamma, the issue was put forth whether ‘threat to commit suicide’ was a punishable offence? The Court ruled otherwise and put forth that such kind of coercion was not punishable by the IPC,1860.
Undue
Influence
The second factor which makes ‘consent’ of particular cases to be compromised is Undue Influence. Section 16 (i) of the Act, defines undue influence as to where if the relationship existing between the parties are of such nature that one of the parties is in a superior position or can dominate the will of the other easily and actually uses that position to obtain an unfair benefit over the other person or force him/her to act particularly in a contract is ‘Undue Influence’.
Section 16 (2) of the Act states that a person is deemed to be in a position to dominate the will of another where:
He holds a real or some apparent authority over the other person. For e.g. Master and Servant
There exists a fiduciary relationship based on trust and confidence for e.g. guardian and ward
Contract with a person experiencing mental distress/ disorder/ weak intelligence/ illiterates etc.
The burden of proof lies on the party at whose end the contract seems voidable, there has to be compulsory proving of the fact that there existed a relationship where one party could dominate another and the party actually used such position to obtain an unfair advantage.
Fraud
The third way by which consent is unfree can be explained is Fraud. The term ‘fraud’ is defined in Section 17 of the Act as follows:
“Fraud includes any of the acts committed by one of the parties in a contract or by anyone of his agents, with an intention to deceive the other party so as to lead him to enter into the contract:
i)
the suggestion of a fact, that is not true,
ii)
the active concealment i.e. hiding of a fact.
iii)
making a promise without any actual intention of performing it;
iv) any other act in order to deceive; any act or omitting the law which especially shows it to be fraudulent.”
A very interesting point to note is that the Section 17 says “Mere silence as far as facts are concerned are likely to affect the willingness of an individual to enter into a contract is not really fraud”. Although this rule has an exception to circumstances where there is a duty to speak and if the ‘contract is made in good faith.’
Misrepresentation
A representation, when performed in a wrong manner, innocently or intentionally, is called ‘misrepresentation’.
Misrepresentation should be made innocently, absolutely believing it to be true and without any intention of deceiving the other party.
Misrepresentation should be pertinent to the facts of the case. A mere expression of one’s opinion is not stating of a fact. It should also be used in inducing the other party into entering the contract. Like all the other forms explained in this post, even misrepresentation is voidable at the part of the aggrieved party, he can challenge the contract to be null and void or ask for an honest performance of the same.
However, under few circumstances the aggrieved party loses the right to rescind the contract, these are-
If the truth could be discovered with ordinary diligence.
If the consent is not actually induced due to misrepresentation.
If the parties cannot be led back in such a way that they acquire their original positions.
Even, after coming to know about misrepresentation if the party acts in such a manner that it shows it’s an affirmation to the contract, the party, in such case will automatically lose the right to rescind.
Mistake
Mistake is an incorrect assumption turning
into a belief concerning anything.
Mistakes are of two kinds- Mistake of Law
and Mistake of Fact.
Mistake of law can be of two types further
(ii)
mistake related to foreign laws
(i)
mistake related to the law of the land
A mistake of fact can also be divided into
two –
(a) bilateral mistake.
(b) unilateral mistake.
Bilateral mistake may relate to topics like the subject-matter where both parties are combinedly at fault. Mistake of fact regarding subject-matter may be the existence of, the identity of, the title of, quantity of, quality of the subject-matter, or even its price. Such a mistake makes the Contract void.
A unilateral mistake is when only one party is at fault by virtue of the assumption that there is the same sense of subject matters in both parties. For e.g. A wants to sell a horse but B thinks it’s a pony.
Mansi Tyagi,
is a student of Symbiosis Law School, Pune. In this article, she has discussed
the rules and principles concerning the position and powers of a Karta in a
Hindu undivided family. Also, she has tried explaining the gender lacunas of
the system. And in conclusion, she has tried engraving the gaps that need to be
filled in the Karta system of the Hindus.
Hindu Undivided Family
Before knowing who a Karta is, we need to know what a Hindu undivided
family stands for. The Hindu undivided family is considered a unique
composition in the world since it continues even after the members are dead. A
HUF consists of “all-male members descending lineally from a common
male ancestor together with their mothers, wives or widows, unmarried daughters
and even illegitimate children“[i]. Also, even though the
Hindu Undivided Family does not have a legal existence, it is a recognized
taxation unit.
Who is a Karta?
Under Mitakshara coparcenary, the
coparcenary is limited to three generations of “Lineal Male descendants”. This
coparcenary system is headed by the senior-most male member, earlier called the
patriarch, and now termed as the ‘KARTA’ under the Hindu joint family.[ii] A Karta is made not based
on selection by consent of the other family members, but by the rule of
seniority.[iii] Thus, not anybody or
everybody can be a Karta on his own.
Legal Position of a Karta
The position of a Karta is sui
generis.[iv] He is responsible to take
care of the family and manage all the property related matters with due care.
His relationship with the members is neither of an agent-principal[v], nor even of partners, but
that of a trustee. However, only in cases of mala fide intentions can the
decision of the Karta be challenged[vi]; otherwise, he does not
hold any accountability to anyone personally.
The HUF has no legal identity, and thus it’s representative the Karta
takes steps in his capacity to ensure the maintenance of the same. Therefore,
the acts done by the Karta concerning the HUF are absolutely binding on all the
members. He is thus justified in buying property, suing someone, or taking
loans, or compromising on behalf of the HUF.
Who can be a Karta?
Generally, the senior-most male member of the family is the Karta of a
joint Hindu family, in whose absence the next senior-most male member takes position.
Also, no member but only a coparcener can become a Karta. Seniority and not
consent is the factor to be the Karta of the family. However, a Karta can
himself expressly resign or relinquish his position. But this doesn’t make his
position temporary in any manner. He can never be disposed of on the ground of
him being ill or unable to take care of family matters.
Can a
Junior member be a Karta?
In the presence of a senior male member, a junior
can never be a Karta, except where the Karta is absent and the junior is
selected with the consent of the other family members. However, in no condition
can a junior member assume superiority over the senior male member.
What are the
conditions in which the juniors can take over was answered in the infamous case
of ‘Nopany Investments (P) Ltd. v. Santokh Singh (HUF)[vii]’.
In the said case, a Karta residing outside India, gave his power of attorney to
younger brother, who under the authority transferred evicted the tenants out of
the family property to which the tenants refused on the ground that the younger
brother was not the Karta and thus could not evict them.
To this, the Hon’ble Supreme Court dismissed the tenants’
contentions and laid down five principles (conditions) where a junior could
take over as the Karta. They are as follows:
if the senior member or the Karta is not available;
where the Karta relinquishes his right expressly or by necessary
implication;
in the absence of the manager in exceptional and extraordinary
circumstances such as distress or calamity affecting the whole family and
for supporting the family;
in the absence of the father:
(a) whose whereabouts were not
known, or
(b) who was away in a remote place
due to compelling circumstances and his return within a reasonable time was
unlikely or not anticipated.[viii]
After this judgment, it was laid
down that once a junior member was made the new Karta or the representative of
the Karta, he could take decisions on behalf of the family in the same capacity
as the original Karta, and which were binding equally on the other coparceners.
Also, to this taking over, outsiders cannot take objection in any situation.
Can
Female members be a Karta?
Property and related laws, since time
unknown, have always been male-centric and hardly treated women as independent
and not subservient. The coparcenary is limited to three generations of lineal
male descendants of the last holder of the property only. A wife under Hindu
law has a right of maintenance out of her husband’s property, yet she is not a
coparcener with him.[ix]
A woman in a Hindu family was a mere dependent and could be nothing
more.
The foremost discussion upon the status of Women as a coparcener was made in the parliamentary debates of the constituent assembly. While debating about the Hindu succession Code, it was originally decided to do away with the mitakshara coparcenary system. The idea was to abolish the son’s right by birth for inheritance and replace the same with the principle of succession. The conservative opinion suppressed the idea. The Madhya Bharat representative, Sita Ram S Jajoo, in fact, went on to state his reasons for the majority opposing the idea, i.e., “Here we feel the pinch because it touches our pockets. We male members of this house are in a huge majority. I do not wish that the tyranny of the majority may be imposed on the minority, the female members of this house.[x]” Thus, the same was rejected at the instance of the majority rejecting the acceptance of woman coparceners.
Thus, women in a Hindu joint family cannot be coparceners[xi], since it is assumed that
the females invariably leave the father’s house and assume domestic and
spiritual duties in their husband’s house. A wife though, under Hindu law
has a right of maintenance out of her husband’s property yet she is not a
coparcener with him.[xii] Likewise, a widow of a
deceased coparcener is not a coparcener, and therefore cannot be treated as a
Karta of the family. However, the 2005 Amendment to the Hindu Succession Act[xiii] has given a daughter
the status of a coparcener; their position as a Karta is still inadmissible.
However, there are conditions when a woman can behest the position of a
Karta. For example, in general, if the only adult male coparcener dies and
there is no other male coparcener available at the instance or the one
available is a minor, the duties of the Karta fall upon the woman of the house.
In such conditions, she can be a manager as well a Karta for the Hindu
undivided family, until and unless the minor male coparcener turns major, after
which she gets dissolved of her Karta position. The reasoning behind such law
is that women are not inherently coparceners in the property, and can enjoy
their deceased husbands’ property to a limited extent.
What is important to note here is, a woman can be a manager but not the
Karta. And thus, it is necessary to distinguish between the same. The position
of a Hindu widow cannot get self-assumed by her disentitlement to be a
coparcener in the Hindu Undivided Family of her husband. Regrettably, the
amendment of the Hindu Succession Act in 2005 has not done much to appreciate
the position of a woman in the Hindu Undivided Family. In the infamous cases
like ‘Sujata Sharma v. Manu Gupta’[xiv]
and ‘Shreya Vidyarthi v. Ashok Vidyarthi’[xv]
the high courts and the Hon’ble Supreme Court respectively have held that
daughters having equal coparcenary rights can be made the Karta irrespective of
their marital status. However, other female members still await given equal
Karta rights in a Hindu undivided family.
Powers of the Karta
Karta enjoys an immensely wide variety of powers when it comes to his
position of managing all the family matters. His powers have a wider ambit than
those of anyone else in the family. His position is honourable and unique.
However, the powers vested in the position of the Karta are open to scrutiny
only on the ground of prudence, “and prudence implies caution as well as
foresight and excludes hasty, reckless and arbitrary conduct”[xvi]. The powers of any Karta
include:
1.
Power of Management
A Karta is the manager of all family matters, thus making his powers absolute as far as management of the same is concerned.[xvii] Under Hindu law, a Karta has the power and duty to take actions which binds the family together. A Karta can ask the family members to give him all the accounts of the expenditure of family income. He has the power to manage the family income and property[xviii]. The coparceners are bound to obey the Karta, in whose absence the Karta can outcast the coparcener of the common property. In such cases, the coparcener has no remedy but to ask for separation of his share and live separately from the joint family. Also, the Karta has the power to distribute resources amongst the member coparceners at his whims and fancies. He is under no obligation to be impartial to all the members. Instead, he can play favouritism and yet be out of any legal consequences against him. As far as the disposition of any contracts, sale of family property or expenditure of joint income is concerned, neither the members nor the court can direct the Karta to act in a certain way or another. It is the inherent managing power of the Karta to act on his terms.
2.
Right of Representation
Under the Hindu Law, the Karta of a Hindu
joint family represents all the members of the family. For all formal, informal
and even legal matters, it is the Karta in whose name all the proceedings shall
take place. It is for this reason that the suits filed by and against the HUF
are named in the representative capacity of the Karta.
Also, the judgment given in such suits is binding on all the members of the family, irrespective of their age.[xix] Also, since the Karta is not answerable to the actions he takes in pursuance of the management of family affairs, thus in such representative suits, neither can he be held responsible for being negligent towards the proceedings,[xx] nor can the judgment be set aside because if at all he was more vigilant the outcome would be in their favour.[xxi] However as held in the case of ‘Mirthubasini v. Easwaramurthy and Ors.’[xxii], it is concluded that “as the head and ‘karta’ of a joint family, one has absolute power to represent his joint family”.
3.
Power of receiving and spending family income
All members of the family working outside the
family property are under the obligation to hand over their income collectively
to the Karta. The Karta in lieu of his managerial duties has the right of
collection and expenditure of the family income wherever he feels it deeming
fit for. The Karta is not obligated to spend the funds in a certain manner.
Also, it is through the Karta that funds are allotted to members as well as
activities of the HUF.
4.
Power of Alienation
Usually, the power of the Karta to alienate is
limited and can be executed with the consent of other coparceners. However,
there are three purposes for which if the alienation is made by the Karta, the
transaction is held to be valid. These being, Legal necessity, the benefit of
estate or religious obligations.[xxiii]
In the case of ‘Radhakrishnadas v. Kaluram’[xxiv]
the Hon’ble Supreme court laid down five principles of valid alienation by
Karta, which consisted of the following:
Powers of Karta are
limited and qualified;
Karta makes
alienation as a prudent man or a bona fide alignee;
Alignee bound to
make a proper inquiry into borrowings of money;
Alignee needs to
prove that the transaction was for a legal necessity;
Alignee is not
obligated to prove that all the considerations paid to him were used for family
maintenance or management.
However, in cases where the Karta alienates the
property without the consent of the other coparceners, the act can be
challenged in the court of law. Thus, any alienation made by the Karta is
voidable at the option of any coparcener, provided that the burden of proof
lies on the person who bought the property and not the Karta.
5.
Liability to take accounts
Usually, the Karta is not bound to disclose any
accounts on how and where he spent the joint income. Since his actions are
presumed to be made in the best interests of the HUF, a justification for his
actions is deemed unnecessary. However, at the time of partition, he is
supposed to discharge all valid accounts, which if found to be glitched will be
reimbursed from the personal accounts of the Karta.
6.
Power to Acknowledge and contract debts
Being the representative and manager of the HUF,
the Karta has absolute power to acknowledge and contract the debts taken and
given either by any member of the family or him personally on behalf of the
family. Also, he has the power to pay off such debts and interests taken on
behalf of the HUF. As far as the contracts are concerned, once taken by the
Karta on behalf of the HUF, it becomes absolutely binding on the other
coparceners.
7.
Power to settle family disputes
In case there is an inter-family dispute or a
conflict between an outsider and any family member, the Karta has the power to
refer such matters for arbitration, and the subsequent decision becomes binding
on all the members.[xxv]
Also, the Karta can take the initiative to settle the matter through a
compromise on behalf of the members. He can also compromise a suit pending in
court.
However, in such compromises, a minor member can challenge the same under Rule 7 of Order XXXII which requires the approval of the court in compromises where one of the parties consists of a minor. Also, in cases where the Karta does not work bonafidely, it can be challenged during partition proceedings by the aggrieved coparcener.
Duties
and Liabilities of a Karta
Despite the wide range of powers that the Karta
enjoys, there are certain liabilities and duties that he is bound by. The
foremost and uncompromisable responsibility being managing the family matters
bona fidely in best interests of all the coparceners. Also, A Karta is liable
for maintaining all the family members, females of the family and even
illegitimate children. In case of a default, a civil suit can be filed against
the Karta by the female members of the family. At times of partition, he is
liable to render accounts asked for by the coparcener. A Karta is also
responsible for the execution of events like marriage, religious sacraments,
etc. in the family. Since he is the ‘manager’ of the family property, he is
also liable to make sure that all dues, taxes, loans, and debts are paid well
off. Also, being the legal representative of the whole HUF, he is responsible
to take care of all the litigations filed by and against the family. Including
everything, the prima facie duty of the Karta is to ensure total security, safety
and maintenance of the family.
Conclusion
The
senior-most male member of the family gets the status of a Karta, the head, the
manager of the family affairs. For this, he may or may not receive a
remuneration. But he does enjoy several powers owing to his honorable position
in the family and is also at the same time responsible for the maintenance of
the same. In the complex Hindu family system, the role of a Karta proves to be
a simplifying factor in the direction of managing the Hindu undivided family
more efficiently
However, in the whole law including the Karta, the exclusion of women is yet a milestone to be achieved. Merely making them Coparceners but not giving them the right to be a Karta is an utter violation of their right to equality. Also, the powers given to the Karta concerning the family property needs a delusion, in aspects where it keeps him non-accountable to the members for his partial actions. There still needs to be an evolution in the laws and principles relating to the working of a Karta. But till then, the changes await.
[i] Surjit Lal Chhabda v. CIT, (1975) 101 ITR 776.
EVENT: Legal Articles & Case Comments Submission for Volume XII of KUJLS Journal HOST: Kerala University Journal of Legal Studies ELIGIBILITY: Law students, Academicians, Legal Scholars & Professionals SUBMISSION BY: 15th July, 2020
SUBMISSION GUIDELINES:
• All submissions are required to be addressed to the Head, Department of Law, Kerala University and emailed to kujls[at]keralauniversity.ac.in. • All submissions should be sent with a covering letter indicating the Name of the Author, Designation and e-mail ID, Topic of the Paper and Declaration duly signed of no prior publication. • Manuscripts shall be in Microsoft word format, Times New Roman font, 12 pt. font size and 1.5 line spacing. • It shall include an abstract of not more than 150 words. • All citations shall be placed in footnotes. The citation shall adhere to JILI format of citation. Reference attached herewith. • The submission made to KUJLS shall be on an exclusive basis and must not be concurrently under consideration by any other publication.
This article is written by Ritik Kumar,
pursuing his BALLB (Hons.) from Aligarh Muslim University Campus Kerala.
Meaning of Consumer Protection
Consumer protection is a policy which provides protection to the buyers
of goods and services and protects them against unfair trade practices in the
marketplace. It also averts businesses from adopting unfair methods such as
fraud to mislead consumers. It is the result of an idea of consumer rights.
Every consumer has the right to adequate information about goods and services
they are purchasing which can be enforced through right to information.[i] Now the question arises,
what is adequate information? It was defined by the honourable Supreme Court in
case of Samira khan V. Dr Prabha Manchanda as an information which
enables the patient (consumer in general) to make a balanced judgement as to
whether she should purchase a particular good or hire a particular service or
not.[ii]
Who is Consumer?
A consumer is a person who buys any goods or hires any services by
paying something in consideration of that. So, relying on this general
definition of consumer, it becomes clear that things given out of love,
received in gift or without any payment will not arise any consumer right.
Section 2(7) of Consumer protection act 2019 defines consumer as a person who
buys any goods or avails a service for a
consideration. It does not include a person who obtains a good for resale
or a good or service for commercial purpose. It covers transactions
through all modes including offline, and online through electronic means,
teleshopping, multi-level marketing or direct selling.
Consumer Protection legislation in India
Modern consumer protection legislation can be traced back to 1860 with
the enactment of the Indian Penal Code. There are many statutes which deal with
consumer protection laws in India, the principle being the newly enacted
Consumer Protection Act, 2019. Other than CP act, consumer rights and
protection to them is provided under Indian Penal Code 1860, The Indian
Contract Act 1872, The Sales of Goods Act 1930, The Agriculture Produce Act
1937, Drugs and Cosmetics Act 1940, Certification Marks Act 1952,
Essential Commodities Act 1955, etc.
Indian Penal Code, 1860
Accurate measurement is a generally recognized principle of justice and
the right of every consumer. If any fraudulent activity is involved in the
measurement of goods, it will be an intrusion on consumer rights. IPC
criminalizes such acts and a person who uses any false instrument for weighing
fraudulently or makes or sells such false weight or measure may be punished for
an imprisonment term which may extend to one year, or with fine, or with both.[iii] Adulteration of food or
drink intended for sale and sale of noxious food or drink is also a penal
offence and a person who committed such an act may sentence to a prison term
which may extend to six months, or with fine which may extend to one thousand
rupees, or with both.[iv] IPC further criminalizes
adulteration of drugs which is done to lessen its effect, change its operation
or to make it noxious and sell a drug as a different drug. It is punishable
with an imprisonment term which may extend to
six months, or with fine which may extend to one thousand rupees, or with both.[v]
Indian Contract Act, 1872
A contract is anything which is agreed
between/among parties to contract and enforceable by the laws of the land. It
is only binding on the parties to contract. In India contract regulations
mainly dealt under Indian Contract Act, 1872 which under its section 27
declared agreement in restraint of trade as void. Hence, it serves consumer
interest by promoting competition in the market and protects them from
monopolistic market risks. In case of breach of a contact section 73 of the act
has provision for compensation for loss or damage caused by such breach.
The Constitution of India
Although the Indian Constitution doesn’t specifically provide for any
specific provision, there are few articles which are very important for
protecting the rights of consumers. Article 21 of the constitution guarantees
every person has the right to live with dignity, free from all kinds of
exploitation which means market exploitations will also fall under article 21.
Directive Principles are not enforceable in court but they serve as goals and
guidelines for the government. Article 47 of the constitution which is part of
DPSP requires the state to take steps to prohibit the consumption of intoxicating
drinks or drugs which are injurious to health.
Consumer Protection Act, 1986
This act was enacted by the parliament of India with the following aims
and objectives:
To prohibit businesses from marketing goods which are hazardous to life and property;
To provide a variety of goods at a competitive price;
Right to consumer education, redressal against unfair trade practices and to provide consumers adequate information as to the quality, quantity, ingredients, standards and price of goods and services; and
To ensure freedom of trade carried on by other participants in the market.
Attempts had been made to amend this act by consumer protection
(amendment) bill 2011, to replace the act by introducing consumer protection
bill 2015 and consumer protection bill 2018. It had been replaced by consumer
protection act 2019.
Consumer Protection Act, 2019
To address challenges faced by consumers in the digital age, the Indian
Parliament enacted a new act namely consumer protection act, 2019 which replace
completely consumer protection act, 1986. This act aims to provide timely and
effective administration and settlement of consumer disputes. Major changes
brought by this act are as follows:
In the 1986 Act, there was no provision for product liability which now can arise under the new act against a product manufacturer, product service provider and seller or all of them.
The 1986 Act includes six types of unfair trade practices including misleading advertisement and false representation. The new Act adds three types of practices to the list namely failure to issue a bill, refusal to accept a good return within 30 days and disclosure of personal information given in confidence unless required by law.
Unfair contracts were not defined in the 1986 Act. The new Act defined them as contracts that cause a significant change in consumer rights.
There was no provision for alternative dispute redressal in the old Act. The new Act provides for mediation cells.
There were no specific provisions dealing with E-commerce in the 1986 Act. The new act defined e-commerce as buying or selling of goods or services including digital products over a digital or electronic network.[vi]
[i] The Right to Information is a fundamental right
under Article 19 (1) of the Indian Constitution.
Nikhilesh Koundinya is a student of Symbiosis Law School, Pune. In this
article, he has discussed section 354 which relates to outraging a woman’s
modesty and has provided relevant case laws. To conclude he has discussed the
amendment to the provision and suggestions to make the provision
gender-neutral.
INTRODUCTION- THE PATRIARCHAL SYSTEM EXISTS
In India, since time immemorial there has been a system of patriarchy
that has been followed. In fact, in the Manu Smriti which was at a point of
time being deliberated to be one of the most important books under religious
literature had obscene patriarchal ideas and notions. The book spoke about how
women are always supposed to listen to the male members irrespective of what
they are saying, they are the father’s responsibility before marriage and after
that the husbands. All in all, the book treated a woman less as a human being
and more as an object in society. Not only the Manu Smriti but many other books
under the Indian literature treated women as objects and always portrayed them
to be sub-par as compared to the male gender. The unfortunate result of this
was that at a certain level man started believing that he can control women and
can take advantage of them however he pleases. This meant that the concept of
sexual assault, rape, outraging the modesty of a woman was normalized at a
certain point of history where women accepted that they were sub-par as
compared to men. Slowly with the rise of feminism women started recognizing
that they had been placed below the male gender for far too long and they also
needed to be recognized as an equal in society while having the same rights and
privileges as men.
This led to major changes in legislation and judiciaries of all
countries started passing judgements which opened up an avenue for women to
seek relief for a wrong act that had been committed against them. This meant
the acts of outraging a women’s modesty, committing the act of rape and many
other acts were criminalized under various laws of different countries. In this
article, we are mainly going to be focusing on the concept of outraging a
woman’s modesty.
SECTION 354 OF THE INDIAN PENAL CODE
Section 349 to 374 of the Indian Penal Code relates to offences which
are committed using assault or criminal force. Under this ambit section 354
talks about outraging the modesty of a woman with the use of criminal force or
assault. The section under the code reads:
Whoever assaults or uses criminal force on any woman, intending to
outrage or knowing it to be likely that he will thereby outrage her modesty,
shall be punished with imprisonment of either description for a term which may
extend to two years, or with fine, or with both.[i]
After reading this definition we can make out the three necessary
elements which are required to convict a person under this offence which are:
The assault or use of criminal force must be on the women
Use of criminal force or assault
This use of force should be with an intention to outrage the modesty of a woman[ii]
HOW CAN YOU DEFINE MODESTY OF A WOMAN?
The courts have always struggled to give a definition for the word
“modesty”. The courts for a very long time after the enactment of this section
defined modesty as per the findings of the case. But finally, in the case of State
of Punjab v Major Singh,[iii]the courts held that a woman’s modesty is her sex. The court also held
that in cases of section 354 the culpable intention of the accused will be
looked into. The reaction of the women though very important and pertinent to
the case cannot be an aspect on which the court can make a judgement. For
example, if the woman is sleeping or has been given a drug dose due to which
she is unconscious and a man commits the act under section 354 he will still be
liable as the ingredients are being fulfilled. In the case of Ram
Kripal v State of Madhya Pradesh,[iv]
the facts of the case were that a man pulled a woman’s saree and asked for
sexual intercourse. This was classified as an offence under section 354 as this
was outraging a woman’s modesty by violating her modesty and asking for sexual
intercourse. In R v Court,[v]
the court held that an act will be considered to be an indecent assault if the
right-minded members of society feel that such an act outrages the modesty of a
woman.
CULPABLE INTENTION OF THE ACCUSED
The courts have time and again held that the intention of the accused
must be to commit the act of outraging the women’s modesty. The courts have
many a time reiterated that merely touching a woman’s body will not amount to
outraging her modesty it needs to be added with the intention. In fact, in one
of the cases, the court held that merely touching a women’s belly will not
amount to outraging her modesty unless it is proven beyond reasonable doubt
that the accused had the intention to commit the act. In the case of Divender
Singh v Hari Ram,[vi]
the court noted that the man had pushed the woman and hence was liable for
using criminal force. But in this scenario, the man did not outrage the modesty
of the woman and hence the court dropped the respective charges. Thus, this
section explains that with the act even the mental elements must be fulfilled
as it is important in all crimes under the code.
The courts in many cases have held that if an offence by an individual cannot be classified as rape it can well be placed under section 354 of the code as an act of rape is not proven is still outraging the modesty of a woman as it directly connects to sex. In the case of State v Musa[vii] the prosecution due to lack of evidence couldn’t prove the offence of rape but the court held the accused responsible for outraging the modesty of the woman as the accused had dragged the women in her home to the bedroom. Thus, the job of the prosecution is to prove beyond reasonable doubt that the act and the mindset were present with the accused when he committed the act. The job of the defence in such cases is to prove that the act that was committed was consensual. This essentially means that the consent of the women was taken before committing the act.
AMENDMENT OF SECTION 354 OF THE INDIAN PENAL
CODE
Originally under section 354 the punishment for outraging a woman’s
modesty was 2 years with a fine which is for the magistrate to decide. But
under the recent Criminal Law (Amendment) Act, 2013 the punishment has been
made as:
Not less than one year and can be for a maximum period of 5 years
inclusive of a fine which can be imposed by the judge’s discretion. The move
was taken to act as a deterrence so that people stop committing the act due to
fear of the punishment. This will act as a shield for women in society who face
offences like this daily.
PROBLEM WITH THE PROVISION
The foremost problem with the provision is that it only applies to females and excludes males. This violates article 14 of the constitution and does not take into consideration the fact that even a man’s modesty can be outraged. Considering the act was drafted in 1860 women were needed to be uplifted and enough provisions were needed to be drafted to protect women from any form of violence. But in the 21st century, even men face harassment or modesty issues in offices, home etc. so this provision should be made gender-neutral along with all other sexual offence laws which apply only to women.
The second part is extremely important for the male gender. When a woman institutes the case of any sexual act which includes rape, outraging modesty etc. she does it because the man has committed an act which requires him to be punished. But the courts in recent years have seen an increase in the number of fake rapes, dowry deaths or other cases. What we need to understand is that when a woman puts forward a fake case a court may dismiss it after the first hearing claiming it to be a nuisance suit. But the man for the rest of his life will carry around a tag of being a potential threat to women or will be recognized as somebody who the other gender should stay away from. Thus, the final suggestion would be that if courts find women instituting fake cases there should be a provision for granting them a jail sentence for a certain number of years. This will help in three ways:
Men will be exonerated of crime faster as they would be able to proudly say that the case instituted was false and the woman who instituted the suit got what she deserved. It essentially portrays that the man did nothing wrong and the woman out of revenge/ vengeance instituted the suit.
For every real case of sexual assault, there are 4 which are fake. Hence sometimes though the case is true the judiciary has a problem in convicting a person as it may turn out to be false. Also, sometimes as citizens we feel that what the lady did is wrong and the case is fake and hence even the real ones aren’t supported. This will help in bringing out those cases which are true and will advance the cause of justice.
The women will also understand the fact that not all advances or physical assault classify as outraging modesty or sexual assault or rape and also, they will understand that before instituting a suit they should read what the act classifies as. By judging real cases the courts will be able to clarify the ingredients so that women don’t loosely throw terms around on social media or other platforms by being uninformed about the nature of their words.
CONCLUSION
We have seen the nature of section 354 of the Indian Penal Code. It is a
section which has been made to protect women in our country by protecting their
modesty and punishing accused who attack such women’s modesty. The amendment
brought in regarding deterrence has further advanced the cause of justice and
is improving in providing better justice to women in our country. The
suggestions given are purely for protecting and respecting the dignity of men
also. Thus, we can see that as a country we are moving towards a time where a
woman need not be afraid to walk in the night or need not be afraid to confront
the accused in a court of law.
EVENT: Article writing competition ORGANISER: Govt. New law college ELIGIBILITY :The Competition is open to all the students enrolled in any Bachelor’s degree course of Law (3 years or 5 years) from an institution recognized by the BCI.
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This article has been written by Yash Dodani, a first-year student at
NALSAR University of Law, Hyderabad. He has analysed the theories of
Punishments involved and developed from the primitive to modern society.
Abstract
The punishment and the process of the trial had been running since the
formation of the societies and the development of crime. The amount of
punishment was depending either on the nature of the society or the theories of
the punishments set by the people of that society or ultimately the State [if
any]. There were many theories which were given by either the law or some power
working as law in the society. This paper will deal with elaboration of these
theories and the debate around the idea of Capital Punishment and will analyse
the shift of giving punishment in primitive societies to modern
societies.
Keywords: theories of punishment, Capital punishment, primitive, modern
INTRODUCTION
Crime is something that cannot be deleted from society, for a simple reason that no society is an ideal society. The
sociologists have argued that the crime is normal in society and should happen
because society gets a chance to improve laws to atleast control the crimes
if not completely abrogate the crime. To punish the person who has
committed a crime is one part of improving society. For this reason, the people
who were convicted of a crime were punished in different ways. Later these ways
were considered to be called ‘Theories of Punishment’. When a person is said to
commit a crime, he is not committing it against the person in particular but
against the society in large because every other person in the society is
shaken by the acts of the criminal. The word ‘crime’ itself is very subjective,
for some countries a crime X is a crime but not for other countries which are
defined in the statutes itself.
Various theories which were used were based on the thinking of the state
as to how they want to see the crime as and how they want to feel the society
after the commission of the crime. The theories were in the form of Deterrent
theory, Preventive theory, reformative theory and the Retributive theory. The
capital punishment is considered under the Deterrent theory which I will
discuss in detail in the upcoming sections.
Next section will deal with the theories in brief and I will analyse how
effective that theory is in modern times.
The Deterrent Theory
The state used the deterrent theory to give an effect and an example
that if the same offence is repeated by others, the consequences will be harsh.
The main object of the state here is to bring a feeling of fear in the society
and it will help to stop the crime. The punishment given is of rigorous nature.
The punishment for any offence which is not so grave was also very harsh. To
add an example, the thief’s hands were chopped when he committed an offence of
theft. The people who commit a sexual offence had to face an organ cut off as
the punishment. This theory believes that the punishment should be grave to
inflict the feeling of fear in society. The people will think many times before
committing a crime and he will have a fear that “if I commit this crime, I will
face these kinds of punishments” and this fear will resist him from committing
a crime.
However, the deterrent theory has failed to be applied to those
criminals who are stone-hearted people and are accustomed to the punishments
but still commit the crime. As far as the people who are not habitual criminals
are concerned, the crimes are not always planned and the people who have
committed the crime in a flip will also face saviour punishments and this fails
the object of the deterrent theory. It is that the deterrence is converted into
reformative theory in modern times. In the case of Phul Singh v State of
Haryana[i]
the Supreme Court said the following lines- “the incriminating company of
lifers and others for long may be counterproductive and in perspective, we
blend deterrence with correction, and reduce the sentence to rigorous
imprisonment for two years.”
The Preventive Theory
If the deterrent theory would not work as we have seen above, the
alternate method would be to prevent the criminal from committing the crime
again. To achieve the purpose, the criminal is put into imprisonment so that he
could not commit the crime, or by ending the means by which that person would
commit the crime. This would also solve the purpose of reducing the crime.
However, this approach fails because the criminals today have a tendency to
commit the crime in jail also and hence would not solve the purpose completely.
The Reformative
Theory
The theory assumes that crime is a disease and the reform is a medicine.
When a person commits a crime, he is sent to the reform centre and the counsel
present there try to change his mind with moral values. By bringing these
values, this theory tries to reform the person and that person would stop
himself from further commission of that crime. The environment of the prison
should be so positive so that it can help in the reformation of the person. But
addressing the rising numbers of criminals in India, it is difficult for the
authorities to keep prisons in a healthy environment. It has another problem,
the poverty in India is much and if the prison is a good place, the people will
certainly commit a crime to get shelter and food.
In the case of Sunil Batra v Delhi Administration[ii],
the court said the following lines- “ the
rule of law meets with its waterloo when the state‟s minions become law
breakers, and so the court as a sentinel of justice and the voice of the
Constitution runs down the violators with its writ, and serves compliance with
human rights even behind iron bars and by prison wardens.”
The Retributive
Theory
This is the most ancient among all theories, which took place in very
old times. The feeling of revenge gave birth to this theory. This type of
punishment will mean that the person who has committed a crime and has caused
harm to a person, he will be subjected to the same harm. The examples will
include eye against the eye, blood against blood etc.
A special
reference to the Capital punishment
When we look into the past of the punishments, we see in the times of
kings, the very preferred mode of punishment which was used is capital
punishment or the death penalty. The punishments which were followed were
either the retributive theories or the deterrent theory. And in the deterrent
theory too, death penalty was prevalent. There are various forms of execution
of the death penalty which I will come upon in upcoming parts. Let’s look at
the definition first.
Definition of Death penalty
The death penalty is a legal process of taking a life of the criminal as
he has committed a crime. The judicial decree which the court pronounces is
called the death sentence. The actual killing of the person is called the
execution of the sentence. The offences which lead to the death penalty is
called as capital offences. In India s368 of the Criminal Procedure Code gives
power to the High Court to give the death sentence.
Methods of Execution
There are different methods of execution which are followed to execute
the death sentence. Some of them are given below.
Burning: In
this type of execution the body of the criminal is burnt completely.
Wheel of Spikes: The
wheel full of spikes is thrown towards the criminal which results in his
death.
Firing: in
this execution, the person is fired with the help of a gunshot. In India
recently in Hyderabad, four criminals were encountered by this method.
Headsman’s Axe:
the head of the criminal is placed on a wooden block and then an axe cuts
down the head of the person.
Guillotining: Another
common form of execution seen in the French Revolution. Dr Joseph
Guillotine was the person who invented this method whereby the accused
person’s head was placed in a round hole on a wooden block and a blade is
dropped cutting the person’s head.
Hanging in this
process, the person’s neck is tied to a rope tightly and after some time
due to no flow of oxygen, the person is dead.
Gas Chambers: this was used in Hitler times where a lot of
Jews were kept together in a gas chamber and poisonous gas was spread in
the whole room.
The Validity of Death Penalty
The validity of the death penalty was first challenged in the US after
which the death penalty was abolished there. Pennsylvania was the first state
to abolish the death penalty completely. But even after such decisions on the
constitutionality of the death penalty, it is there somewhere in many countries
till date.
The Indian practice of the death penalty is the method of hanging by the
neck. This method was practised in India from British times. The Indian Penal
Code [s53] provides the death sentence power to the courts and s368 of the CrPC
provides power to the High Courts to give a death sentence.
The death sentence in India is given by applying the ‘Rarest of
the Rare Doctrine’. This means the judiciary gives death penalty to accused in
the cases where the collective conscience of society is so shocked that it will
demand and expect the judiciary to give the death sentence. Now what
facts will be called as rarest of rare will be considered by the Courts and
there are a lot of problems when it comes to whether the case comes under the
doctrine of Rarest of Rare cases or not.
Delay in the Execution
The delay in the execution of the Death penalty is reasonable. It is
because there are some rights of the accused and he has the right to life under
Article 21 of the Constitution. This is the reason why the accused has a lot of
options before he is hanged. The defence tries to somehow make this death
sentence reduced to life imprisonment.
But it is again a problem for the convicts as it poses an ‘inhuman
effect’ of the penalty and the punishment has no point. The family of the
accused and the accused himself faces a lot of torture if there is a much delay
in the execution in the delay.
The main cause for the delay in the sentence is the courts taking a lot
of time to confirm the death sentence. This is the most prime reason why the
delay happens. Another important cause is the health of the convict. The
convict of the death penalty should be mentally and physically fit while the
execution of the death sentence.
International views
Capital punishment has not been seen as a good solution to curb crime.
It has been criticised on many grounds by the courts of different countries and
many organizations. The UNGS said that there should be a very high standard of
a fair trial to be followed in cases of capital punishment. Most of the
countries in the EU have abolished the death sentence. The institution UNESC
has even asked the member states to abolish the death sentence. Many
conventions were made to abolish the death sentence.
Internationally, capital punishment is recognized as cruel or inhumane
punishment. The Universal Declaration of 1949 states that no one should be
subjected to cruel or inhuman punishment. It is argued that the capital
punishment is volatile of the human rights of an individual. However, India
does not seem in a position to abolish the capital punishment and it is argued
by India that capital punishment is only provided in the cases of rarest of
rare which speaks that the crime is done with so grave intention and the facts
hit the collective conscience of the society.
Position in India
The Indian Courts work on the principle of rarest doctrine. But the
courts are itself confused on what will be rare or not. Article 21 confirms
that the person has the right to life, except the procedure established by the law.
The whole notion of debate around the death penalty in India works on
this argument. The cases like Meenka Gandhi v UOI[iii]
said that this process should be ‘due process’ and the accused should get
complete rights to reduce the punishment from a death sentence to any other
form. Although various NGOs are fighting against the death penalty, the Sc came
up with the doctrine of ‘rarest of rare’ which itself is against various
provisions of the Constitution but the SC has said that death penalty will be
given in cases of very grave nature. In
the case of Bachan Singh v State
of Punjab[iv] Justice Bhagwati in his dissenting opinion stated
that the death penalty is necessarily arbitrary, discriminatory and capricious.
He further stated that it was indeed the poor who are subjected to the gallows
and the rich and the affluent usually escape from its clutches. This is indeed
a gross violation of Articles 14 and 16 of the Constitution. In Shashi
Nayar vs Union of India (1991), the death penalty was again challenged
for the reliance placed in Bachan Singh case in the 35th Law Commission Report
but the court turned it down stating that the time was not right for hearing
such a plea. Also, the plea to consider hanging till death as barbaric and
dehumanizing was rejected.
Conclusion
Hence, we can say that no theory can solely curb the crime but the mix up
of these theories is essential to at least reduce the crime. The death penalty
is itself an offence against humanity. The government should take steps to
abolish the death sentence by looking at the negative aspects of it.
[i] Phul Singh V. State of Haryana [1980. Cri. L. J. 8].
[ii] Sunil Batra II V. Delhi Administration [1980 3
S.C.C. 488]
