Month: May 2020

DIFFERENCE BETWEEN KIDNAPPING AND ABDUCTION

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This article is written by Deepika, pursuing BA-LLB from IIMT & School of Law, GGSIPU, Delhi. In this article, she has discussed ‘kidnapping’ and ‘abduction’ which are offences punishable under the Indian Penal Code along with this, she has also discussed the difference between both the offences.

INTRODUCTION

‘Kidnapping’ and ‘Abduction’ are offences which take place all over the world. From North-America to Asia, the governments are working hard in order to deliver justice by prosecuting the perpetrators. Kidnapping and Abduction are mainly done in return for something which could be anything ranging from money to making others do acts which are illegal in nature to save their loved ones and bring them back home safely.

In our country ‘Kidnapping’ and ‘Abduction’ are increasing at an alarming rate creating a concern both for the government and society. The reason for the seriousness of these two crimes is that they lead to various other crimes and in most cases, their common targets are women and children.

Both these offences of kidnapping and abduction are covered under Chapter XVI of IPC titled ‘of offences affecting the human body’. Apart from the general definition, the Indian Penal Code has given a wider spectrum to define the terms.

Kidnapping

Section 359, 360 & 361 of Indian Penal Code deals with ‘Kidnapping’.

  • Section – 359, IPC states that Kidnapping can be classified into two kinds ‘Kidnapping from India’ or ‘Kidnapping from Lawful Guardianship’.
  • Section – 360, IPC states that whoever conveys any person beyond the limits of India without that person’s consent, the person who takes such person is said to kidnap that person from India.
  • Section 361, IPC provides that when a person entices a minor (16 years for male and 18 years for female) or a person of unsound mind, the person so enticing will be held liable for kidnapping such minor or person from lawful guardianship.  

Essential ingredients of the section are

  1. Taking or enticing away a minor or a person of unsound mind by someone
  2. Such a minor must be under the age of sixteen years, if a male, or under eighteen years, if a female;
  3. The taking or enticing must be out of the keeping of lawful guardian of such minor or person of unsound mind,
  4. Such taking or enticing of the minor must be without the consent of the lawful guardian.

Taking or enticing

To prove the presence of taking or enticing element it is required to show some active part played by the accused.

In S Varadarajan v. State of Madras a girl who was on the verge of attaining majority, voluntarily left her father’s house, arranged to meet the accused at a certain place and went to the sub- registrar’s office, where the accused and the girl registered an agreement to marry. In this case, the accused had not  ‘taken’ her out of the lawful guardianship of her parents, as there was no active part played by the accused to persuade the girl to leave the house. It was held that no offence under this section was made out.

The word ‘entice’  embodies the idea of inducement or pursuance by offer of pleasure or some other form of allurement.   

Keeping of lawful guardian

The expression lawful guardian is much wider term than the expression legal guardian. Lawful guardian includes in its meaning not only legal guardians, but also such persons like relatives, teacher who are lawfully entrusted with care and custody of a minor.

In the State of Haryana v. Raja Ram, the court observed that the word keeping connotes the idea of charge, protection, maintenance and control. Out of keeping of lawful guardian means away from parental roof or control.

Age of Minor

As per the section, the age of a minor child at the relevant point of time should be less than 16 in respect of a male, and less than 18 in respect of a female in order to constitute an offence under this section.

In the State of Haryana v. Raja Ram, the prosecutrix was a young girl of 14 years she was constantly persuaded by one Raja Ram to leave the house and come with Jai Narain, who would give her a life full of a lot of material comforts. The question before the Supreme court was whether Raja Ram could be said to have ‘taken’ the minor girl since she willingly accompanied him.

The Supreme court held that persuasion by the accused person which creates willingness on the part of minor to be taken out of the keeping of lawful guardian would be sufficient to attract the section.

Abduction

Section-362, Indian Penal Code deals with ‘Abduction’

  • Section 362 of the Indian Penal Code states that if a person either by force compels a person or induces another person to go from any place is said to abduct such person.

Essential ingredients of this section are

  1. Forcible compulsion or inducement by deceitful means.
  2. The object with which such compulsion or inducement caused must be to make a person go from someplace.

DIFFERENCE BETWEEN KIDNAPPING AND ABDUCTION

Society very frequently uses both the terms ‘Kidnapping’ and ‘Abduction’ synonymously as if they were the same thing. The reason behind the confusion is because there’s a thin line difference between both the terms. Following are the differences between the terms ‘Kidnapping’ and ‘Abduction’, which makes both the terms different from each other:

Age

  • Kidnapping from guardianship is committed only in respect of a minor (16 years old, in case of males and 18 years old, in case of females) or a person of unsound mind.
  • Abduction may be in respect of a person of any age. Any person by force compelled or induced any other person to go from any place irrespective of the age shall be booked with abduction.

Removal From Lawful Guardianship

  • In Kidnapping, a person is taken away from the guardianship of a person who has been authorized by law to take care of the person who has yet not attained the age of majority.
  • In Abduction, concerns the person who has been abducted, there’s no involvement of a lawful guardian.

Means

  • In Kidnapping, the means used are irrelevant.
  • In Abduction, means of force, compulsion and deceitful means are used.

Consent

  • In Kidnapping, the consent of the person taken away has no significance, as the person being kidnapped is a minor, who’s incapable of giving a ‘free consent’
  • In Abduction, person condones the offence of abduction.

Continuity of crime

  • Kidnapping is not a continuing offence. It is complete, the moment a person is removed from India or from the keeping of lawful custody of the guardian.
  • Abduction is a continuing offence. It continues as long as the abducted person is removed from one place to another.

Punishment

  • Kidnapping is substantive offence, punishment for kidnapping is given in Section – 363, where a person shall be punished with imprisonment of either description of a term which may extend to seven years and in addition, he will also be liable to fine.
  • Abduction is an auxiliary act. It becomes punishable only when it is done with either of the intents specified in Section – 364 to 366.

Conclusion

So, after going through all these points, we can say though they are differences between Kidnapping and Abduction. But, both the offences have a detrimental effect upon the society. The victims of such offences goes through a traumatic experience. Though the crime itself may have ended but its manifestation in the mind of the victim remains there for a long time.

Reference

  • PSA Pillai 13th Edition
  • K D Gaur 6th Edition
  • NCRB report 2018

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Company Meetings: Procedure and Types

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This article has been written by Mansi Tyagi, a student at Symbiosis Law School, Pune. In this article, taking cognizance of the different sections of the Companies Act’ 1956, she has discussed the procedure and steps concerning a company meeting and the different types of company meetings.

What is a Company Meeting?

Generally, a meeting can be defined as “a gathering, assembling or coming together of two or more persons for the objective of discussing lawful business. Companies Act, 1956, nowhere defines a meeting. But, if we are to further define a company meeting on the pretext of the meaning of a meeting, then it is this gathering whose participants are the members of a company, a meeting is often a formal setting. For any company meeting to take place, it is important that there is a quorum of members who come together on a previous notice for discussing a lawful common business interest. Therefore we can conclude requisites for a valid company meeting as:

  1. Two or more than two members;
  2. With an objective of the meeting – discussion on common business interests;
  3. Through a previous notice;
  4. At a particular place, date and time;
  5. As per the provisions of the Companies’ Act.

However, it is important to note that in a few exceptional cases one member meetings are also declared to be valid. For example, where there is only a single shareholder in a company, he can alone hold a valid meeting. On similar lines, this goes for situations where there is a single creditor or board of director for the company. Except for these exceptions, the requisites cannot be compromised with.

What is the Procedure for any company meeting?

For any company meeting to validly happen it is important that the procedure laid down by the Companies’ Act is followed. Section 170 of the Companies Act’ 1956 states that the forthcoming sections i.e. Sections 171-186 shall apply to every general meeting of any public or private company. These steps can be briefly enlisted as:

  • Notice (Sections 171-173)
  • A Quorum (Section 174)
  • A Chairman (Section 175)
  • Proxies (Section 176)
  • Voting procedure (Sections 177, 179-185)
  • Result (Section 178)
  • Power of Tribunal to call a meeting (Section 186)

Thus, now we will read into the detailed requirements of each step for a general meeting:

1. Notice

Notice prior to the meeting is the most important prerequisite for any meeting. Section 171 lays down that a notice is to be served to the joining members of a meeting twenty one days prior to such meeting. However the same can be reduced at the admissal of the members to such modification. Every notice by virtue of Section 172 of the act shall specify the itinerary of the meeting including the agenda for the meeting. These notices shall be served in writing to all the members of the company at their residences. Also in case any member’s death or insolvency, the same shall be addressed to the person entitled to such member’s shares. Section 173 requires such notices to be annexed with an explanatory note concerning the ‘special’ business to be discussed in the meeting. However, in case a member is ‘accidentally’ omitted this serving of notice, the meeting shall not get invalidated ipso facto.

2. Quorum and Chairman

Section 174 of the act constitutes a quorum of five persons in case of a public company and two when it is any other company. If within half an hour of the commencement of the meeting there is no quorum constituted, it will dissolve the meeting arranged for. Likewise, section 175 of the act lays down the requirement of a chairman for the meeting. The members present shall elect a chairman for the forthcoming meeting. This election shall be a simple show of hands. Once a member is thereof elected, he acts as the chairman for the whole meeting.

3. Proxies

Every member by virtue of section 176 of the act is empowered to appoint any other person as his proxy for the meeting. However, such proxy’s powers are limited to voting on polls. He at no instance can speak his opinion at the meeting. Also, such empowerment is prohibited in case of companies with no share capital. Likewise, members of private companies are limited to use only one proxy per occasion. The member appointing any proxy has to provide a duly signed written proxy authorizing the proxy to vote in his place and be deposited to the company before forty-eight business hours of such meeting.

4. Voting

In case of companies with share capital, any member or proxy present in person can ask for voting on a particular motion; which the same section 179 lays that in companies with no share capital, one member or a proxy in presence of less than total seven members and two members or a proxy in presence of more than total seven members can ask for the voting initiation. After such demand is made under section 179, there shall be a polling procedure by show of hands by virtue of section 177. The Chairman shall then state conclusively if the resolution was to be carried out. The same is to be noted down in the minutes’ book of the company as per section 178. However, section 183 lays down that there is no hard and fast rule for the members or the proxies to use their multiple votes in the same manner. Later, section 180 lays down that in case of a decision on adjournment the polling shall be conducted instantaneously once asked for, while in any other cases such polling shall be conducted within forty-eight hours of such demand.  Section 181 and 182 on the other hand put restrictions on these polling rights of the members. Through the former, the company can restrict the defaulter members from voting who are yet to pay on their shares or when their shares are under a right of lien by the company; while through the latter the company can restrict the members who did not hold shares preceding the voting or any other ground not specified in the former section. To scrutinize the votes, under section 184, the chairman is empowered to appoint two scrutineers amongst whom one has to be the member present at the voting.

5. Result of the voting

Finally, section 185 of the act lays that firstly, it is the chairman who decides the manner of polling. Secondly, he then declares the result of the polling. And finally, the result of the polling shall be deemed to have been the result upon the proposed resolution in the meeting.

However, an exception to this usual procedure is section 186 where instead of the board, the tribunal calls for the meeting. As empowered by Section 186[1] and solidified by cases like ‘R. Rangachari vs. S. Suppiah and Ors.’[2] in situations where it is ‘impracticable’ for the board to call for meetings other than annual general meetings, the National Company Law Tribunal has the power to call for such meetings either at its own, or on the requisition of a director or even a single eligible member to ask for a requisition. Such meetings will also have a status similar to those held on requisitions by members of the board.

What are the types of company meetings?

Company meetings can be divided into three: Shareholders’, directors’ and special. These three categories further diversify into eight more. Firstly, Shareholders’ meetings consist of Statutory meetings, Annual general meeting and Extraordinary general meeting. Secondly, the Directors’ meetings consist of Board meetings and Committee meetings. Lastly, Special meetings are made of Class meetings, Creditors’ meetings and Debenture Holders’ meetings.

Shareholders’ Meetings

1. Statutory Meetings

Statutory meetings are the first general meetings of any public company after they become entitled to business. Section 165[3] of the Companies Act, 1956, defined statutory meetings as the one which shall be conducted between one to six months from the date of commencement of business. Additionally, such a company shall be one limited by shares or guarantee with a share capital. Also, the nature of such meetings is to be general. The section further puts down the requirement of a statutory report which needs to be forwarded to all the members twenty one days before the meeting is held. This report is required to have all the information related to the companies’ shares. For eg. the distribution of shares, payments made against each share sold, etc. The members can cast their votes and discuss matters enlisted in the notice served prior to the meeting. However, in no case can there be a discussion on matters not enlisted in such notice. Also, statutory reports are supposed to be registered with the registrar office after its copies are sent off to all members. However, none of these requirements is imposable on private companies or public companies which are not limited by shares or guarantees with shares.

2. Annual General Meeting

Annual general meetings, as the term suggests, are held once in a year by companies irrespective of having a share capital. Section 166[4] of the Companies’ Act, 1956 lays down that apart from other meetings, an annual general meeting should take place in every company irrespective of its nature, whether public or private. Additionally, there must not be a gap of more than fifteen months between two annual general meetings. However, there are two exceptions to this condition. Firstly, if it is the first annual general meeting after the inception of the business, the fifteen-month gap can be extended to an eighteen-month gap. Secondly, this period can be relaxed for another three months if the registrar office permits owing to special reasons. There is one more facet to such meetings: Annual Returns. In the case of ‘Anita Malhotra vs. Apparel Export Promotion Council and Ors.’[5] section 159[6] was given clarity in the sense that it required companies with share capital to submit their annual returns within sixty days of their annual general meetings to the registrar office. Such returns shall include details of directors, shareholders, debts, debenture-holders, other members and the registered office. Generally, such meetings are to be held on an official day during business hours in the registered office or anywhere in the city where such office was located. Section 168[7] of the act imposes fine in case there is a default in complying with annual general meetings despite the instructions and notice being served without a reasonable cause.

3. Extraordinary General Meeting

Section 169[8] of the Companies Act, 1956 lays down the rules for an Extraordinary meeting. Meetings held between two annual general meetings are called Extraordinary general meetings. These meetings are called upon by members for discussing urgent matters that fall outside the general scope and cannot wait until the next annual general meeting. In companies with share capital members holding one-tenth paid-up share capital can send a requisition for convening the meeting to the board of directors. And, in companies with no share capitals, one-tenth of members having the right to vote can ask for similar requisition. For any or every matter to be taken up in the meeting, the requisitioners must sign the requisition and send it off to the registrar office. If a meeting is not called within twenty-one days of such requisition submission, the requisition makers can themselves call the meeting.

Directors’ Meetings

1. Board Meetings

Section 285[9] of the Companies Act, 1956 rules out that every company shall have a board of directors’ meeting every three months annually. Thus, each company is required to observe four board meetings each year with a three-month gap in between. The notice of every such meeting shall be given to each director in writing at his place of residence[10]. Such notices are to have the specified businesses to be discussed in the forthcoming meeting. In no case can a director waive this requirement. The objective of such meetings is to ensure that the directors are well-aware of the business proceedings going on in the company. However, the requirement of four meetings yearly can be relaxed by the central government for certain classes of companies. Also, the act under section 287[11] requires for a formation of a quorum of either minimum of two directors or one-third of the total strength, whichever is higher. Usually known as ‘Standing orders’, each company has the power to lay down rules concerning the itineraries of the Board meetings. These meetings are generally held to discuss the development of the company and any other major issue of the company.

2. Committee Meetings

Committee meetings are a dilute form of board meetings. Here instead of the board of directors, the committee of directors made in the board come together for a meeting. Generally, the board delegates the powers to its committees to organize work. For eg., a board might consist of one committee that solely takes care of finances and another that takes over completely of workforce issues. These committees are formed on the lines of the articles of the company and follow the same procedure as that of the board for meetings.

Special Meetings

1. Class Meetings

The shares that a company holds are all of the different kinds. So when shareholders of a particular class arrange for a meeting, it is called a class meeting. So when a company decides to give the bonus only to the equity holders of the company, the meeting that will be convened for the equity holders will be an example of a class meeting.

2. Creditors’ Meetings

These types of meetings are called by the directors when they propose to set a scheme for arrangement and compromise with its creditors. Section 391[12] of the act empowers the company or the liquidator in case of winding up of the company to ask the tribunal to call for a meeting of creditors. In such meetings, if any proposal is passed with a three-fourth majority of the creditor value, then the same is held to be binding on all the creditors and the company. For the final order to be effectual, it has to be submitted to the registrar. In case the tribunal observes the impracticability to implement the order, it can ask for modifications by virtue of section 392[13]. The peculiar feature of such kinds of meetings is that the procedure is directed by the National Company Law Tribunal directly.

3. Debenture Holders’ Meetings

The debenture trust deed lays down the procedure and principles concerning the debenture holders’ meetings. These meetings are arranged by debenture holders of a particular class. Also, these meetings are held whenever there is a concern regarding the rights and interests of the debenture holders.

Conclusion

Every general meeting has to undergo a specified procedure either mentioned in the Companies Act, 1956 or the articles of the particular company. There are as many as eight kinds of company meetings. And interestingly, any company meeting does not end in the meeting room with the polling rule. Instead, all the proceedings of the meetings are laid down in the minutes of the meetings’ book of the company. All such minutes are duly signed by the chairman present in the meeting. This helps in recording all the resolutions passed, motioned down or other details of the meetings for future reference of the company.

[1]  COMPANIES ACT, 1956  Section  186 – Power of Tribunal to order meeting to be called.

[2]  R. Rangachari vs. S. Suppiah and Ors., (1975) 2 SCC 605.

[3] COMPANIES ACT, 1956  Section  165 – Statutory meeting and statutory report of company.

[4] COMPANIES ACT, 1956  Section  166 – Annual general meeting.

[5] Anita Malhotra vs. Apparel Export Promotion Council and Ors., (2012) 1 SCC 520.

[6] COMPANIES ACT, 1956  Section  159 – Annual return to be made by a company having a share capital.

[7] COMPANIES ACT, 1956  Section  168 – Penalty for default in complying with section 166 or 167.

[8] COMPANIES ACT, 1956  Section  169 – Calling of extraordinary general meeting on requisition.

[9]  COMPANIES ACT, 1956  Section  285 – Board to meet at least once in every three calendar months.

[10] COMPANIES ACT, 1956  Section  286 – Notice of meetings.

[11] COMPANIES ACT, 1956  Section  287 – Quorum for meetings.

[12] COMPANIES ACT, 1956  Section  391 – Power to compromise or make arrangements with creditors and members.

[13] COMPANIES ACT, 1956  Section  392 – Power of Tribunal to enforce compromise and arrangement.

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Internship opportunity:SEBI

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EVENT: Online Internship Opportunity
HOST: Securities and Exchange board of India
PREFERENCE: •Student should have Completed atleast 3rd year of 5 year llb course and 2nd year of 3 year llb course
• The Applicants shall be a student of law recognised by BCI
• student pursuing LLM course are also eligible.
• the applicants should be secured a minimum 60% aggregate marks or equivalent CGPA in their previous semester
DURATION: internship shall not be less than 4 week
LAST DATE TO APPLY: 19th May 2020
FOR FURTHER INFO: Click on the link below

https://www.sebi.gov.in/legal/internship-program-in-the-legal-department/may-2020/online-internship-program-in-legal-department-during-covid-19-pandemic-commencement-of-internship-program-in-the-legal-department_46670.html

Internship Opportunity:Legal Armor

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INTER-CORPORATE LOAN

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This article is written by Sharat Gopal pursuing BA.LL.B from Delhi Metropolitan Education, GGSIPU. He has discussed the legal provisions that govern the corporate while giving loans, guarantees, securities or making investments.

Introduction

Before discussing about inter-corporate loans, it is important to understand what ‘corporate’ means. ‘Corporate’ literally means “a large company or group”. ‘Company’ in literal term means “commercial business”. There is a difference between ‘corporate’ and ‘company’. The main difference between them is the size. ‘Corporation’ is big business or entity whereas a ‘Company’ is a small business or entity.

In the business world, both the terms are treated alike, it is just the size that draws a line between the two.

Now there are some basic characters which all corporate companies possess, that is –

  1. It is a legal entity and has all the rights and responsibilities that an individual has. It has to pay taxes, it can enter into contracts, it can file lawsuits and lawsuits can also be filed against it.
  2. It has a board of directors who decide all the actions of the companies.
  3. As a business entity, it has a separate existence from its owners.
  4. Ownership of the company is divided into share know as “corporate stocks”, and the people who own them are called shareholders.

Company

The Indian Companies Act was amended a lot of times. The last amendment was made in 2013, and it is in current use. The Companies Amendment bill 2019 was introduced in Lok Sabha on July 25th, 2019, which brings more changes to the act. As of now, the 2013 amendment is in use.

Section (2)(20) of the Indian companies act states the definition of “company”. It states that “company” means a company which is incorporated under this Act or any previous company law.   

Every company has a board of directors, who take decisions for the company. As a company doesn’t have a natural existence, but has a legal existence. Therefore all the decisions of the company are taken by this board of directors.

Inter-Corporate Loans and Investments

For the better functioning of the companies, section 186 of Companies Act, 2013 was introduced. It brought a few modifications and changes in the concept of Inter Corporate loans and Investments made by the company. This act makes it clear, which company can or cannot give loans, security, or make investments.

When a company provides loan, security or guarantee to another company, it is known as inter-corporate loans. When a company invests in another company, it is known as inter-corporate investments.    

A firm can provide loans, investments, guarantees or securities to other companies only after the board of directors have given consent to it.

Legal status

Section 186 of the companies act, 2013 deals with the loans and investments made by the company. Section 186(1), states that a company can make investments through not with companies more than 2 layers of investment companies.

Now “layer” is defined under section explanation (d) of section 2 (87) of the Companies Act. It states that “layer” in relation to a company means its subsidiary or subsidiaries.

Investment Company is a financial institution, whose primary activity is investing in securities. The principal business of an Investment Company is:

  1. buying of shares
  2. buying  of debentures
  3. buying of other securities

Cases where provisions of section 186(1) won’t affect:

  1. When a company acquire any company which was incorporated outside India and that company had Investment subsidiary beyond 2 layers.
  2. A subsidiary Company from having any investment subsidiary for the purpose of meeting the requirement under any law or under any rule or regulation framed under any law for the time being in force.

Others places where section 186 (1) is not applicable-

  1. Section 186 (1) is not applicable to, Housing Companies, Insurance Companies, etc.
  2. Companies whose primary business is buying and selling of shares, or security etc.
  3. Companies acquiring shares on right issues basis, which is explained in section 62 (1)(a).
  4. Government companies that operate defence production
  5. Unlisted companies which are legally authorised by the govt authorities. 

Amendments to the Act

Before the amendment of 2013, the Companies Act of 1956 was followed. Act of 1956 had a lot of problems, which were solved after the 2013 amendment. Section 372A, of the Companies Act 1956 dealt with the Inter Corporate Loans, Investments, Guarantee, Securities. After the 2013 amendment of the act, section 186 was introduced, this stated that there cannot be inter-corporate investments through more than 2 layers of investments. This was not required before the 2013 amendment. This restriction was used to keep a check on the misuse of multiple layers of subsidiaries for diversion of funds.  

The act was amended again in 2017, which brought changes to section 185 and 186, which deals with loans to directors. With these modifications to the act, it was now more convenient for businessmen and investors to do business.

Section 186(2) talks about giving loans, securities etc. It states that no company shall directly or indirectly –

  1. Give any loan to any person or other body corporate.
  2. give any guarantee or provide security in connection with a loan to any other body corporate or person
  3. and acquire by way of subscription, purchase or otherwise, the securities of any other body corporate

Which would be exceeding, 60% of its paid-up capital, plus free reserve, plus security premium account or 100% of its free reserve, plus security premium account, whichever is more.

Free reserve are the reserves which are there as per the latest audited balance sheet of the company.

Body corporate means a company corporate outside India, but should not be a corporative society which is registered under any corporative societal laws or any other body corporate not being defined under Companies Act or any authority.

Individual does not include a person who is underemployment of the same company.

Requirements mentioned in Section-186, Indian Companies Act

There are some criteria’s to be followed for having inter-corporate loans and investments. These are also mentioned in section 186.

  1. Approval from members is mentioned in section 186(3). It states that the company can give loans beyond the restriction imposed in section 186(2), but only after prior approval by the members by special resolution passed at a general meeting.
  2. Section 186(5), states that no loan or guarantee or security should be given by the company, until and unless it is sanctioned by the board of directors.
  3. Section 186(4) states that the company has to disclose all its financial statements for loan given, an investment made, guarantee given, to all the members. Such disclosure should be in the board’s report also.  
  4. Section 186(6) states that no company which is registered under section 12 of Securities and Exchange Board of India Act,1992 and covered under such class or classes of companies, shall take inter-corporate loan or deposit, exceeding the prescribed limit and such companies must provide its financial statement in detail of the loan.
  5. Section 186(10) states that every company must maintain a register which has all the details of loan given, guarantee given or security provided or investment made. This register must be open and shall be provided if demanded by the members on payment of fees prescribed.
  6. Section 186(7) talks about the interest rate of the loan given. It states that no loan should be given below interest rate which is lower than the prevailing yield of 1 year, 3-year, 5-year or 10-year government security closest to the tenor of the loan.
  7.  Section 186(13) talks about the punishments imposed when there is contravenes in the provisions provided in the act. It states that if a company contravenes the provisions of the act, then the company is liable for a penalty not less than ₹25,000, which may also extend to 5 lacs. If an officer is at fault then he is liable for imprisonment for a term which may extend to 2 years and fine of ₹25,000, which may extend to 1 lac.

Summary

The above article explains the legal provisions by which inter-corporate loans are governed. It basically gives guidelines, how loans, guarantees, securities are given to other companies. This act also punishes companies and people, if they do not follow these laws.

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ATTEMPT AND ABETMENT TO SUICIDE

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This article is authored by Pankhuri Pankaj, a 2nd year student pursuing her BA-LLB  degree from Vivekananda Institute of Professional Studies. She is currently interning with Lexpeeps. This article summarises certain key provisions of “attempt to suicide and abetment to suicide” under the Indian Penal Code and is qualified in its entirety by reference to the Indian Penal Code, 1860.

INTRODUCTION

In simple terms, if one may attempt to define the term suicide, it is the act of taking one’s life voluntarily. It is the practice of doing away with one’s life by themself. Currently in India suicide have unfortunately become a very common sight to come across and the suicide rates can be seen to be increasing at an alarmingly high rate, especially in the student community due to high competitiveness, anxiousness, stress, and fear of failure. In India, every life is considered precious and has been dignified with the right to life and not even the person who is in possession of that right is granted to violate that fundamental right. It is important to know that in India not suicide in itself but offences like attempt to suicide and abetment to suicide are considered penal offences liable with punishment.

ATTEMPT TO SUICIDE

Till 2017, under section 309 of the Indian Penal Code, 1860, attempt to suicide has been defined as a punishable offence. This section lays down that a person shall be liable with the punishment of simple imprisonment for a term which may extend to one year or with a fine, or both, if he attempts to commit suicide and does any act towards the commission of such offence.

This section can be made applicable for only those who fail to commit suicide and survive the attempt to suicide, those who succeed in committing suicide obviously cannot be charged under this offence since they seize to exist. This section makes the person accountable for attempting to take a life, even though it’s his own, and sets an example for others to not commit the same offence.

This particular section has been the centre of multiple debates across the nation where the validity of section 309 has been discussed on an elaborate level. Broadly these debates were divided into two parts, on one hand, it was felt by many that it was inhumane to punish a person who had already hit rock bottom and tried to take his own life. It was understood as cruelty and was believed to further encourage that person to succeed in the act of committing suicide which he failed earlier. On the other hand, it was argued that Article 21 of the constitution graciously rewards the people with the right to live with dignity and have a right over their life but nowhere the right to take one’s own life has been granted as a right. Punishment for individuals who attempt to commit suicide was rather seen as a preventive measure to lower the rates of suicide.

After weighing all the arguments raised on the legality and morality of Section 309, various Law Commission Reports were approved and finally, the Supreme Court decriminalized Attempt to Suicide under Medical Health Care Act, 2017.

In the case of State v. Sanjay Kumar Bhatia (1985 CriLJ 931) for the first time, decriminalization of Section 309 was favoured. The Delhi Court highly condemned Section 309 and said that the continuance of Section 309 I.P.C. is unworthy of human society like ours and has no justified right to continue to remain on the statute book. It further sympathised with the fact that a person who was unfortunately driven to such frustration so as to seek his life to escape human punishment is hounded by the police for his failure rather than being attended by a psychiatric clinic is nowhere justified.

In the case of Maruti Shripati Dubal v. State of Maharashtra (1987 CriLJ 743), the Bombay High Court held that Section 309 is directly contrary to the provisions enshrined under Article 14 and 21, which lay out the ideals of equality before law and right to life. The court ruled that under Right to Life under Article 21 also includes the Right not to Live and therefore punishing someone for attempting to suicide is violative of the right under Article 21.

In Rathinam v. Union of India (AIR 1994 SC 1844), the Supreme Court held that the right not to live a forced life is a part of life.

However, in Gian Kaur v. State of Punjab (AIR 1996 SC 946) the Supreme Court overruled the judgement given by the Delhi and Bombay High Court and upheld the constitutionality of Section 309, and similarly, in Chenna Jagadeeswar v. State of Andhra Pradesh, the honourable High Court of Andhra Pradesh also upheld the constitutionality of Section 309.

The 156th Law Commission Report presented in the year 1997, favoured Section 309 and recommended retention of criminalization of attempt to suicide. Later the 210th Law Commission Report presented in 2008, chaired by Dr. Justice AR Lakshmanan, and titled- “Humanization and Decriminalization of Attempt to Suicide¨, strongly recommended to repeal Section 309 from the IPC.

After failing to get an approval over decriminalization of Section 309 with the Indian Penal Code (Amendment) Bill, finally, when the Mental Healthcare Bill, 2016, got the assent of the President, Section 309 was decriminalized and was repealed.

ABETMENT TO COMMIT SUICIDE

Under Section 306 of the Indian Penal Code, 1860, Abetment to Suicide has been considered a penal offence and any person committing this offence can be held liable with punishment. It states that any person who abets or assists a person in the commission of suicide shall be punished with imprisonment for a term which may extend up to 10 years and shall also be liable to fine.

It’s first important to understand the meaning of the term “abetment” which has been defined under Section 107 of Indian Penal Code, 1860. In general terms, a person is understood to abet an act when he/she instigates or engages in conspiracy or assistance in the commission of the offence. Voluntarily encouraging or pushing a person to do an act through words or actions can be understood as abetment. The person responsible for abetment is referred to as an abettor, defined under section 108 of the Indian Penal Code, 1860. In the case of abetment to commit suicide, the offence can be understood as instigating or pushing an already overly emotional person to the point of considering suicide as the only option to escape.

It is necessary that the instigation should be intentional. For instance, in the case of Sanju alias Sanjay Singh v. State of Madhya Pradesh (2002 5 SCC 371: 2000 Supp SC 2246), the Supreme Court quashed the chargesheets and held that words uttered in a fight in the spur of the moment cannot be taken to be uttered with mens rea and cannot be held against the defender and he is not liable under Section 306 for abetment to suicide.

Section 306 creates a specific offence and the liability arises only when the suicide is committed. In the case of Mohit Pandey (1871 3 NWP 316), the accused was held guilty for the death of the widow and the court held that one cannot escape liability on the ground that he expected a miracle to happen and did not anticipate that the pyre would be ignited by the human agency.

In the case of Chitresh Kumar Chopra v State (Govt. of NCT of Delhi), the court held that each person has their own reasons and problems which leads to a suicidal pattern which is different in every case and hence it is important to look at the facts to draw a conclusion rather than trying to fit the case into a straight jacket formula. The court also dealt with the terms “instigation” and “goading”, and also pronounced the opinion that mala fide intention is necessary to establish abetment. Similar contentions were held in State of West Bengal v Orilal Jaiswal & Another ([1994] 1 SCC 73), and Ramesh Kumar v State of Chattisgarh ([2001] 9 SCC 618).

The case of Manikandan v State ([2016] SC 316) was a landmark judgement where the court held that the mere mention of a person in a suicide note would not make him or her accountable for abetment to suicide. To invoke Section 306 the suicide letter needs to be scrutinized carefully first. The court further stated that it is not the wish and willingness nor the desire of the victim to die, it must be the wish of the accused, it is the intention on the part of the accused that the victim should die that matters much. There must be a positive act on the part of the accused.

To combat the ever-increasing menace of dowry deaths, Criminal Law (Second Amendment) Act, 1983 has provided that where a married girl commits suicide within Seven years of her marriage, the court may presume that her husband and his relatives abetted her to commit suicide by virtue of Section 113A in the Indian Evidence Act, 1872. The case of State of Punjab v. Iqbal Singh (AIR 1991 SC 1532) and Brij Lal v. Prem Chand (AIR 1989 SC 1661) can be taken into account to understand this concept better.

It is also important to understand that Abetment to Suicide is very different from Consent Killing. While the former is punishable under Section 306 of the IPC, the latter is homicide by consent which falls under Exception 5 of Section 300, IPC and is punishable under Section 304.

Thus concluding, Section 306 of the Indian Penal Code, 1860 has to be used responsibly since it’s quite sensitive. In India, the life of a person is considered of paramount importance and the unfortunate incident of suicide is considered a grave loss of a life which needs to be brought to justice by punishing those who abetted the unfortunate act.

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AN OVERVIEW OF DEFAMATION

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INTRODUCTION

Every man has the right to uphold his reputation inviolately. The right to reputation is recognized as an intrinsic personal right of any citizen as part of the right to personal security. The term defamation means an intended false communication, written or spoken, denting the reputation of an individual by diminishing the respect, esteem or confidence through disdainful, hostile or unwelcome opinions or feelings towards a person. In simple words, defamation is the act of making false statements, verbally or published with an intent to dent the reputation of the plaintiff.  Defamation is stated in section 499 of the Indian penal code 1860, and the punishment for defamation is stated under section 500 of IPC, according to which a person who commits an offence under this section shall be liable for a simple term of imprisonment of two years or a fine or both. Defamation generally entails the publication or assertion of false statements without any justification. No one has the right to cause loss to the reputation of others with mala fide intentions. Therefore, the laws elucidating the areas of defamation simply balance the right of freedom of speech and right to protect reputation by imposing reasonable restrictions on the fundamental right of freedom of speech and expression under Article 19 (1) (a) of the Indian Constitution.

CONSTITUTIONALITY OF SECTION  499-500 OF IPC

The reputation of an individual cannot be allowed to be condemned at the shrine of the right of freedom of speech of the other. Therefore, there is no point in the assertion of the modern law of defamation being unconstitutional. The need to strike a balance between Article 19 and Article 21 is crucial in the modern world. Unlike the other unyielding provisions of the IPC, Sections 499/500 has four definitions and ten exemptions, attaching necessary content and scope to the crime constituting significant hypothetical scenarios for the exclusion of trivial complaints. Section 199(1) of the Code of Criminal Procedure protects freedom of speech by placing an obligation on the plaintiff to file a criminal suit without requiring state machinery. This, in effect, weeds out many redundant alleged victims who are not able to bear the considerable logistical, physical and financial burdens of addressing the complaint. A simple misuse or violation of the law, current or potential, may never be a justification to make a clause unconstitutional. The Supreme Court held that the statutory provisions of defamation are constitutionally acceptable and do not interfere with the rights of freedom of speech and expression. The Court held that, given the wide and far-reaching scope of freedom of speech, the right to freedom of speech and expression is, like all freedoms, “completely sacrosanct” but “not absolute.”

In the case of Subramanian Swamy v. Union of India, [1]a petition concerning the legalization of defamation was filed, the petition questioned the constitutional validity of Sections 499 and 500 of the Indian Penal code of 1860, which constituted an unjustified limitation on freedom of speech and expression. The apex court held that criminal defamation under Sections 499 and 500 did not infringe Article 19(1) (a) as it is a fair constraint under article 19(2). Sections 499 and 500 of the IPC were held to be fair, non-discriminatory and non-arbitrary and do not infringe the right to equality granted under Article 14 of the Constitution.

CORE ESSENTIALS OF DEFAMATION

  • Falsity of the defamatory statement

 The very first vital aspect of defamation is that the statement or the assertion made to the plaintiff must be defamatory and false, and it must seek to diminish the eminence or reputation of the plaintiff. The method to verify the defamatory nature of comment would depend on the inclination of interpretation by the rational and prudent members of society. Furthermore, if the false assertion has created a feeling of hostility, disdain or animosity, a person cannot take the defence by a vague justification of absence of the intent to defame the plaintiff. The defendant’s liability will be neutralized if the statement is privileged. However, a mere hasty gesture or statement being spoken in a fit of rage, or a vulgar abuse to which no listener could connect any fixed intent to harm a person, would not contribute to defame an individual.

  • Defamatory statement against the plaintiff

In a suit for defamation, the plaintiff has to establish that the defamatory assertion was made against him. The intention of the defendant to defend the plaintiff would be immaterial if the plaintiff establishes the above statement. The defendant’s liability will be neutralized if the defamatory statement was made against any third party other than the plaintiff. In the case of T.V., Ramasubha Iyer v. A.M.A Mohideen [2]Court held the defendants liable for the publication of a statement without any intention of defaming the defendants. The statement stated that a particular individual carrying the business of incense stick to Ceylon had been arrested for an offence of smuggling. The plaintiff was also one of the persons engaged in a similar business and, as a result of this statement; his reputation was severely damaged.

  • Publication of the defamatory Statement

The actions for defamation will be negated unless the plaintiff establishes that the defendant has published the defamatory statement against him. If the publication sent to the plaintiff is likely to read by the third party, there will be a valid publication and the third party must believe it to be true. The liability of the defendant will still arise if the publication intended for the plaintiff was read by a third person. For e.g., the defendant will be liable for sending a defamatory letter to plaintiff written in some other language, which is not known by the plaintiff, due to which the letter will likely be read over by another person.

TYPES OF DEFAMATION

With the advent of various communication platforms, the ambit of defamation has also widened. Defamation has been further classified into Slander and Libel. It must be noted that defamation is the genus, whereas slander and libel are its species.

Slander

Slander is a false defamatory statement that is made through verbally or gestures intending to dent the reputation of the plaintiff. The difference between defamation and slander is that a defamatory statement can be made in any medium, but in the scenario of slander, the statements are made orally or through gestures. Slander is further divided into Slander and Slander per se. In the first category of slander, the plaintiff must prove that the defendant has made a defamatory statement to at least a single third person due to which the plaintiff has suffered “special damages” as a result of such defamation. Special damages are actual damages, such as loss of customers, termination, or some other financial damage.

The second category of Slander per se does not allow the plaintiff to establish special damages as the claims of slander per se involves those genres of defamatory statements which are presumed to be detrimental to the plaintiff. The most prevalent forms of slander per se involve:

  • Imputing criminal activities to the plaintiff.
  • False assertion of being suffering from any communicable or infectious ailments against the plaintiff.
  • Any negative statement about the plaintiff’s profession or business.

Libel

Libel is a false defamatory statement given in writing. If the defamatory statement fits under the purview of libel, the plaintiff just has to show the essential elements: (1) the defendant has made a defamatory statement about the plaintiff (2) the other persons have been subjected to the statement. There are no additional conditions, as the law assumes that, after the publishing of a defamatory comment is published or other forms, the comment will remain in the public domain for a long time and continue to cause injury.

At the same time as determining the question of liability, the Court must take into account the following issues in libel:

  • The actions of the plaintiff.
  • His role and social position.
  • The essence of the libel 
  • The absence or denial of any retraction or apology for libel.
  • The actions of the defendant from the date of publication of the libel to the date of the judgment.

DEFENCES AGAINST DEFAMATION

  • Justification of truth  

Truth is an absolute defence. If the assertion made is true, it does not constitute defamation even if it was published maliciously. The burden of proof is on the defendant who claims the defence. For example, A publishes about B for being indulged in wagering and B filed a suit against him. If A is able to justify or prove it, B’s claim will be turned down. In the case of Radheshyam Tiwari v. Eknath,[3] the defendant was unable to show the evidence published by him and was thus held accountable for defamation.

  • Fair and Bonafede Comment

There is nothing defamatory which is a legitimate reflection on the subject of public interest. The defendant may make use of this defence if he has simply made a reasonable and fair statement in a matter of public interest. This defence is focused on public policy, which allows every citizen the freedom to express and criticize, without any negative intent, the work or actions of public officials, actors, writers and athletes, as well as others whose career is centred on public attention. Any fair and reasonable opinion on a matter of public interest is also protected, even if it is false.

  • Absolute privilege

It grants the person an absolute right to make a comment, even though it is defamatory, that the person is exempt from liability arising out of a defamation suit. Generally, absolute privilege exempts defamatory comments made:

During the judicial proceedings or,

By the officials of the Government or,

By the Legislators during discussions and debates in Parliament or,

During the political remarks in the parliamentary hearings or,

The conflicts and rants between husband and wife.

In Chatterton v. Secretary of State for India[4], it was ruled that the letters from the Secretary of State of India to his Parliamentary Undersecretary carrying the information required to address a parliamentary question were absolutely privileged.

  • Statement expressing views and opinions

A statement or assertion made expressing views or opinions doesn’t fall under the ambit of defamation unless it is a statement of fact. For example, if a person said that he thinks an athlete unattractive, the statement is just an opinion. Furthermore, if he says that the athlete is a drug addict or that had indulged in match fixings, then it would be a defamatory comment. If this statement results in the termination of the athlete, due to the false statement, then it will fall under the sphere of defamation.

  • Consent

If the plaintiff agrees to the argument made, there will be no defamation. The consent of the plaintiff confers an absolute right on the publisher, it is irrelevant whether the plaintiff understood that the details accepted for publication was defamatory or not. Consent may be expressed through words or actions, including inaction. If consent is obtained unlawfully or by an unsound mind, it will be invalid.

CONCLUSION

The aim of section 499-500 of IPC is to prevent people reputational damage arising out of false assertions or allegations made against them. However, it is also in alignment with the right to freedom of speech and expression, because people can make true comments and share their opinions. This field of law aims to protect the image of an individual from damage by restricting unfair speech. In different cases, the Supreme Court noted that the realm of freedom of speech and expression is “inviolable” but not “absolute.” Defamation is an infringement of reputational value. The law of defamation is designed to protect people’s reputation from unreasonable interventions. Through reality, its key purpose is to impede freedom of expression and to shield influential individuals from scrutiny by allowing the people to sue for the publication of false and malicious comments.

[1]   Subramanium  Swamy v. Union of India,  (2016) 7 SCC 221

[2] T.V., Ramasubha Iyer v. A.M.A Mohideen, AIR 1972 Mad 398.

[3]  Radheshyam Tiwari v. Eknath, AIR 1985 Bom 285

[4] Chatterton v. Secretary of State for India,  [1895] 2 Q.B. 189)

The Doctrine of Basic Structure | A detailed Analysis

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This article has been written by Yash Dodani, a second-year student at NALSAR University. He has provided a detailed analysis of the basic structure doctrine and the final word on it.

INTRODUCTION

The Constitution of India has given powers to Parliament and the State Governments to make laws in their respective jurisdictions. However, the law-making powers and exercise by the Parliament or the State Governments are not ultimate. The Supreme Court of India has the power to declare any law made by the above-said authorities as constitutionally invalid, or Ultra Virus if that law is against any Article[s] of the Constitution. The Founding members of the Constitution wanted the Constitution to be an adaptive document that can be amended according to the changing situations of the country and not a rigid one. To give rise to such intention, the Constitution gives powers to the Parliament to amend the Constitution under Article 368 which has given absolute powers to the Parliament to amend the Constitution as and when required. However, the Supreme Court has acted as a big speed breaker to the speed in which the Parliament wanted to amend the Constitution. The intention of the Supreme Court doing such is to preserve the basic ideas of the Constitution which were embodied by the creators of the Constitution. The apex Court has pronounced in cases that the Parliament can’t change the basic features of the Constitution under the power to amend the Constitution. The apex Court recognized the concept of ‘basic structure’ for the first time in the landmark and the judgment of the highest Judge bench, the Keshavnanda Bharti case.[1]

Before the Keshavnanda Bharti Judgment | History

The investing of the power of the Parliament to amend the Constitution and especially the 3rd chapter which gives the fundamental rights to the citizens was challenged in the Court in 1951, just 4 years after the independence. The petition was filed by various landowners. At that time the ruling Congress party had an electoral promise that it will apply the socialistic goals of the Constitution provided under the chapter of directive Principles of State Policies [Article 39[b] and [c]] which directed the state to distribute the resources equally among all citizens and to prevent the concentration of power and resources among few. Keeping the DPSP in mind the Congress made various land reforms which were taking away the land of the people in order to distribute equal resources. The people who had lands challenged the validity of these laws on the ground that it is violative of the fundamental right to property. The courts on the ground of fundamental rights to property stuck down the land reform laws.

Piqued by the judgments of the Courts, the Parliament made the Ninth Schedule and made it to remove the laws under it from the scope of judicial review. The parliament brought the Ninth Schedule through the very first amendment made in 1951 in order to remove certain laws from judicial review. This umbrella gave support to more than 250 laws made by the parliament in order to regulate the size of property held by the citizens. The whole object of the Ninth Schedule was to protect certain laws from the judiciary. The property owners again challenged the constitutional validity of putting the land reform laws under the Ninth Schedule and argued that these laws are violating Article 13[2] of the Constitution of India which guarantees the protection of the fundamental rights of the citizen. The Article provides that the Parliament can’t pass a law which affects the fundamental right of the citizen. But this argument was not accepted by the Supreme Court in two cases namely, Sanskari Prasad Singh Dev v UOI[2] and Sajjan Singh v Rajasthan.[3]  But decisions after that which actually accepted the argument made confusion as to what is the stand of the Court.

The Golaknath Judgment

The Golaknath Judgment[Golaknath v State of Punjab[4]] was a landmark judgment with a 6:5 decision of the SC where the then CJI, Justice Subba Rao said that the power of parliament to make laws is vested under Article 245, 246 and 248 and to amend them the power is under Article 368. The powers of the parliament to amend the Constitution will be considered as law as said in Article 13[2].

The majority judgment of the SC said that there are some Implied limitations of the Parliament while they are amending the constitution. The view further goes on to say that the fundamental rights of the citizens have a permanent place in the constitution. The court further goes on to say that when the people have given the Constitution to themselves, they have reserved for themselves something and that is the Fundamental Rights. The parliament can’t bring the amendments that modify, restrict the rights of the people, because of the very nature of the Constitution. They said that fundamental rights can only be amended by making a constitution assembly, if they want to do so.

In other words, there are some things which need to have some special procedures because these changes affect the rights of the citizens and can influence the life of the citizens.

The term ‘basic structure’ was used for the first time by the counsels who were arguing for Golaknath in the above case but the court in its judgment never used that term. It was only in the case of Keshavnanda Bharti v State of Kerala which was decided by a 13 judge bench in the year 1973 where the court had recognized the concept of ‘basic structure’. 

Nationalisation of Banks

The Congress had suffered a heavy loss after the Golaknath verdict in the parliamentary elections and the state elections. Barrister Nath Pai brought a bill in the parliament on the table which had an object to restore the supremacy of Parliament in amending the Constitution, but that bill could not be passed due to the political reasons. But this came out in another form when the Parliament passed the laws giving access to the agriculture sector to bank credits ensuring equal distribution of wealth. It was done by Nationalising the Banking system. The Parliament said that they were bringing and implementing the DPSPs, but the SC rejected the move.

It can be seen from the above discussion that the Parliament was more stuck to DPSP, while the SC was running with the idea of ‘Protection of Fundamental rights’ as given in Article 13[2]. At another level, the battle was between the elite property-holding class which were very few in number and the majority less or no property holders, for whose interest the Congress party claimed to do its duty as promised in the electoral promise. After all these, in less than a few weeks, PM Indira Gandhi dissolved the LokSabha.

In the 1971 elections, the Constitution itself became a tool for the election. Majority of the parties called for the changes in the Constitution so as to get supremacy of the Parliament. A.K. Gopalan of the Communist Party of India (Marxist) went to the extent of saying that the Constitution be done away with lock stock and barrel and be replaced with one that enshrined the real sovereignty of the people.[5] As said above, the Congress after coming to power in the year 1971, tried to regain the power of the Parliament in amending the constitution. The parliament achieved the power to amend any part of the constitution including the Part on Fundamental rights by the 24th Amendment. Again the land reform of the parliament was put under the Ninth schedule which was not allowed for the judicial review. Even the President was made bound to assent to any amendment made by both the houses.

Emergence of Basic structure Doctrine in Keshavnanda Bharti case

However, the Constitutional validity of these provisions was challenged in the Keshavnanda Bharti v State of Kerala which was heard by the Full Bench of the Supreme Court [13 judges]. The summary report of the Case was signed by Nine Judges. This summary records the most important points that came out in the judgment of this case. Finally, this case was the first of all where the SC has recognized the concept of ‘basic structure’,

The judges agreed that the parliament had the power to amend any part of the Constitution and the 24th Amendment is valid and also agreed that the Golaknath case has been decided wrongly and there is a difference in Article 245, 246, 248 and 368. There are two types of powers as given under

  1. To make any law by using the legislative powers.
  2. To amend the constitution as under 368.

The court also agreed that to amend the constitution is not always a law.

To amend the constitution is not an ordinary exercise as compared to enacting the legislation. As the Constitution is the most superior to any other body, all laws in the Country should follow the framework to make these laws as given in the Constitution. Constitution does not contain all the laws which govern the country, but a framework to enact the laws. To amend the framework, Parliament is alone given the powers under Article 368.

All the seven judges including the then CJI Sikri, who said that the powers of the Parliament to amend the constitution are subject to some inherent limitations, which are implied while framing the constitution. He said that the parliament can’t damage, alter, change the basic structure of the Constitution. This was said in keeping in mind the preservation of the ideas of the Constitution. 

Basic structure according to the Majority Decision

In claiming the basic features of the constitution, every judge in the majority had different views and there were differences in the majority view as well.

Sikri CJ said that the basic structure would include things which are said in the Preamble of the Constitution i.e. republic, sovereignty, secular and federal.

Shalat J and Grover J added some more features, two of which were the DPSP to make a welfare state and the unity of the nation as a whole.

 Hegde J and Mukherjee J were satisfied with the above list.

Although only six judges agreed that the fundamental rights are the basic features of the constitution and the Parliament could not be vested with the power to amend such provision. But as it was a minority view, it could not be said that the fundamental rights are the basic features.

The Minority View

 The minority view said that there can’t be any distinction between what is essential or the basic structure and what is not because their reasoning said that all the parts of the constitution are equally important and thus the Parliament can make any change in the constitution as given under Article 368, without looking at the basic structure.

The Indira Gandhi election case

Again in 1975, the questions were raised on the basic structure of the constitution. Raj Narian who was the opponent of Indira Gandhi in the 1975 elections, filed a petition in the Supreme Court saying that the elections were not free and fair and Indira Gandhi had malpractice in order to win the election. The court had given an order saying that Indira Gandhi can function as a Prime Minister provided that she will not get to draw the salary, or to speak or vote in the Parliament. To save the PM from the court proceedings, the parliament passed the Thirty-Ninth Amendment to the constitution which said that the SC can’t take up the disputes of the election of President, Speaker of Lok Sabha or the PM. But there will be a separate body made by the Parliament in order to resolve the issues related to the election of these members. The wrong intentions of the Government can be seen when the Thirty-Ninth Amendment was made in a super fast speed. This amendment was passed by the Lok Sabha on the same date when the bill was introduced, was passed by Rajya Sabha in two days and the later day, it got the assent of the President and was introduced in the official gazette after 3 days.  

The counsel for Raj Narian argued that the move of the parliament is affecting the basic structure of the constitution and it can’t make amendments to the constitution where an election has been declared void by the High Court at Allahabad.

Interestingly the court was busy with the part which said that the courts can’t adjudicate upon the election issues and said that it can adjudicate upon at least the current issue and upheld the Thirty-Ninth Amendment otherwise. And the election was declared to be valid on the point that the current election laws fit into the election.

The court again made a list in the basic structure and said that free and fair elections are one such feature to it. It was also agreed that the power of judicial review is another essential feature of the basic structure.

After two days of this decision, the court sat on a review of the Keshavnanda Bharti case. The counsel for the coal mining company argued a lot on the line that if there were no such review petitions, the courts can’t sit on its own to review a case. It was seen that there was an indirect involvement of the government in this issue. 

However, after the National Emergency in the year 1975, the whole country moved away from this issue.

In light of the national emergency, the party formed a committee under the chairmanship of Sardar Swaran Singh that brought the 42nd amendment to the constitution that said that the DPSPs would get preference over the fundamental rights of the citizens. It also said that the amendments to the constitution can’t be questioned in any court on any ground.

This amendment was challenged again by the owners of the Minerva Mills. Mr. N. A Palkhiwala who was the counsel for the owners argued that section 55 of the 42nd amendment had given absolute powers to the parliament to amend the constitution. When the amendments were made and protected from judicial review, it violated the basic structure of the constitution. The court accepted the argument saying that the courts have the power to review any amendment to the constitution.

The court also declared the amendment to Article 31C which said that the DPSP would be focused and fundamental rights will be less important, unconstitutional. However, the amendment to Article 31C has not been deleted till today.

Similar cases after it said that the laws under Ninth Schedule will also be open to review.

Conclusion

It can be said that the final way in this issue has not been decided by the SC. However, it is clear that all amendments to the constitution can be put for judicial review and even those laws which are put under the Ninth Schedule can be put for review.

[1] Keshavnanda Bharti v State of Karela , [1973] 4 SCC 225.

[2] AIR 1951 SC 458.

[3] AIR 1965 SC 845.

[4]  AIR 1967 SC 1643. ss

[5] Quoted in Granville Austin, Working a Democratic Constitution, The Indian Experience, Oxford University Press, New Delhi, 1999, p. 235.   

Reliance of Law of Evidence on Social Media Records

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The following article has been submitted by Aaditya Kapoor, a law-aspiring student of Vivekananda Institute of Professional Studies. Through his research, Aaditya strived to shed light on the importance and applicability of social media posts being treated as viable evidence in a court of law.

Introduction

As the world continues to plunge itself deeper and deeper into a marginally digital stratosphere, there’s a highly apparent state of transparency that remains building up constantly around all of its residents. The distinction between public and private grows thinner and thinner, based not just on personal preference, but also on the basis of external, and even lawful engagement. In-built GPS devices & online monetary transactions are regularly tracked and traced within the ambit of evidential data; with the evasion of such monitoring constituting a tort, even. India remains no exception to this gradual but steady uprising, especially now that it stands in the midst of a Prime Ministerial tenure that heavily relies upon striving to achieve, “Digital India.”

As far as maintaining transparency is concerned, the entire construct of Social Media has contributed to the phenomenon immensely ever since its advent. With a huge amount of citizens sculpturing their daily life into aesthetic presentations on public feeds via application-based websites such as Facebook, Instagram and Twitter, one might as well throw principles of personal privacy and self-containment out the window.  It is an obvious assertion at this point, that social media has transcribed itself into a platform that goes beyond fulfilling mere recreational purposes: and in extension of that notion, this article shall majorly focus on its impact on the Indian Law of Evidence.

How does data shared on Social Media constitute potential Electronic Evidence?

The information we put into social media accounts is indefinitely stored and available for future access, and therefore, it’s not far-fetched to see how something that starts off as a simple text exchange between friends can be transformed into e-Evidence within court proceedings. The addition of legal sanctions such as Section 69 of the Information Technology Act, 2000, have ascertained a certain amount of freedom to legal authorities for garnering information stored across social media platforms and consider them as evidence after ensuing due diligence to certain procedures established by law.  In a nutshell, our judiciary has come a long way from relying solely upon willful oral and written admissions that could be accounted for only after the opening of a particular court proceeding. Electronic evidence has enabled the courts to take reliable past records into account, as long as principles of Justice, Equity and Good Conscience are adhered to.

The evidence obtained from Social Media platforms is applied in a two-fold manner within litigation: The discovery and value of particular messages and social media “posts,” as well as the admissibility of such articles during the trial.

As far as the evidentiary value of social media posts is concerned, there are distinct advantages as well as suitable policy reasons attached to using social media evidence in criminal proceedings. There’s a ton of data being transacted into digital spheres of social media, and such data may even include imagery related to a crime in progress, or even one that has already been commissioned. The most recent example of the aforementioned would be the “Bois Locker Room” incident, wherein a large number of teenagers were exposed after promoting rape culture on an Instagram group that involved sharing pictures of minor girls without their consent. Screen-shots of their conversation on the group as well as on other social media platforms surfaced all over the internet and just that sufficed to launch a proper inquiry against all those recorded partaking in these vulgar & highly offensive discussions. The case is still heavily under investigation as more such records keep surfacing now that the issue, in general, has garnered a large amount of attention. In hindsight, the investigating agencies also discovered how some of the screenshots were, in fact, maliciously manoeuvred into placing false allegation on some of the accused. If anything, that only lays insight to how the scrutiny of potential electronic evidence is crucial, as, in comparison to oral and written admissions, it is fairly easier to stage evidence records on social media platforms.

Domestic events such as this are not the only object of interest when it comes to considering social media posts as suitable evidence. In 2016, there was a report of investigating agencies being in the process of targeting messages posted by individuals on various platforms of social media as evidence against those arrested for supporting terrorist groups. Even the United Nations has laid down guidelines wherein it liberates countries on usage of viable tactics in order to curb terrorist activities carried on over the Internet. However, as mentioned before, it is highly necessary to apply due diligence while exercising reliance upon social media-based evidence: which can be ensured by examining their admissibility in court.

The Supreme Court in 2018 had already voiced its clarification on Section 65B of Indian Evidence Act, which specifically deals with admissibility and applicability of electronic evidence within court proceedings. A bench of Justices A.K. Goel and U.U. Lalit related how the provisions must be applied in a manner that ensures certification of such evidence by the person presenting it himself.

Section 22A of the Indian Evidence Act also relays a detailed account on the screening process involved in the admission of all online articles, messages and posts for their admissibility in court. Even in accordance with Common Law, it is necessary to remain ethical in conducting an investigation of social media articles before any litigation process can be commenced. For example, breaching privacy or adding someone as a friend on social media platforms, just for the sake of gaining private information is highly unethical and such conduct can even render any social media evidence obtained through it inadmissible.

However, the Apex Court also said that the applicability of requirement of certificate being produced, “can be relaxed by Court wherever interest of justice so justifies.”

An important case concerning the admissibility of social media posts in a court of law is Zimmerman v Wels Market Inc. The court recognized access to certain private content as relevant and crucial to the case, based on public information displayed on the plaintiff’s Facebook page and thereby ruled in favour of the defendants who were then granted access to non-public segments of the aforementioned social media handle.

Social Media Evidence: Boon or Bane?

In conclusion, it’s difficult to ascertain whether any information obtained through social media platforms should continue to play a vital role in constituting viable evidence within a criminal proceeding. However, based on recent occurrences, it can arbitrarily be said that if obtained through proper scrutiny, social media evidence can and should definitely be used to validate a person’s claim in court – and in that regard, their impact on Law of Evidence remains both uncertain and positive, but surely detrimental.

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