Month: June 2020

COVID 19 AND INTERNATIONAL RELATIONS

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This article has been written by Alok Kumar. This article deals with the topic of COVID-19 and effect of this virus on international relations and how what is the solution for all these issues which is the world is facing right now.

INTRODUCTION

One must observe the amazing date of 22nd March 2020 when every person in India was relied upon to appear on the side of each one of those experts who have been continually endeavouring towards doing combating the fatal Corona infection that has caused a great many passing’s over the globe. As known to all, this infection began in Wuhan, China during the long stretch of December, 2019

So as to comprehend the purposes for expanding mortality because of this virus, one must endeavour to get adequate comprehension of the life structures of Coronavirus. According to a report by the World Health Organization, these viruses have a place with the Coronaviridae family and they attack both humans and animals. Know that the ongoing coronavirus found in people in Wuhan was not recently perceived and is presenting dangers to the human race including disorders like Middle East Respiratory Syndrome and Severe Acute Respiratory Syndrome. (1)

The infection that fundamentally started in China perceives bats as a prevailing transporter however the WHO specialists state that there are two or three different animals that go about as mode of move of infection from animal species to people. So as to learn different wellsprings of this virus, natural testing was led from the Huanan Wholesale Seafood Market and other encompassing markets in China. Note that this infection doesn’t exist in the air however lays on a surface.

So as to maintain a strategic distance from the transmission of this virus, it is significant that individuals abstain from building up any physical contact with one another. According to a report by the WHO, two of the definitely influenced urban areas of China are Wuhan, Guangdong and Sichuan. The explores and insights introduced by the WHO are prevalently quickened through reports by these areas in China. One must realize that this virus didn’t create inside different nations yet spread only because of individuals interacting with the tainted from over the globe. (2)

Review this pandemic emergency with a global viewpoint, it very well may be said that the need of great importance is a solid coordinated effort between countries regardless of the previous incongruities since one must comprehend that in the long run its human battling for human.

ITS SPREAD THROUGHOUT THE GLOBE

Before one abides into the complexities of the virus and its outcomes at a worldwide scale, it is imperative to comprehend the precise importance of what precisely is a Pandemic malady and in which conditions are a sickness thought about Pandemic. According to the definition given by the World Health Organization,  an influenza pandemic is said to have happened when another influenza virus develops and spreads over the globe and the serious issue encompassing this is the way that individuals have less insusceptibility against this Pandemic illness. COVID 19 is presently a Pandemic sickness attributable to the way that it has affected  a large number of individuals over the globe. (3)

One must have great information about the courses of transmission of Coronavirus to learn preventive measures relating to the equivalent. The World Health Organization reports state that COVID 19 is transmitted through beads and fomites because of the unprotected physical contact between the contaminated individual and the remainder of the world. A typical idea encompassing flu virus is that these are dominatingly airborne however COVID 19 is seen not as airborne yet just through physical contact. (4)

The transmission of infection among countries happened at an incredibly quick pace. In nations like India, the vast majority of the patients who were discovered contaminated with this virus had worldwide travel history and didn’t build up this inside the nation. Without a specific fix of COVID 19, the main method for limiting the unfortunate impact of this illness is a wide range of endeavours to forestall this. Social Distancing is the main way that can forestall the spreading of this virus among the majority. According to the WHO report, practically all the locales over the globe have announced affirmed crown cases. These regions basically incorporate Western Pacific, South East Asia, Region of Americas, European region and Eastern Mediterranean region.

ITS EFFECT ON INTERNATIONAL RELATIONS

The episode of this lethal illness executed individuals in enormous numbers as well as antagonistically influenced the worldwide economies and global relations among the countries. For example, India saw a brief conclusion in the SENSEX which impacts affected the economy in general. The Chinese economy will undoubtedly observe a stoppage because of it being the focal point of the virus yet one must focus on the effect on the current exchange strains among the US and China.

According to the stage one understanding between the two nations, China vowed to realize an expansion in the imports of products and enterprises fabricated and gave by the US separately yet because of this pandemic crises, there is a high likelihood that China probably won’t cling to its guarantee attributable to the monetary stoppage it is at present seeing. The budgetary markets across countries have shaken. This is obviously clear from the slamming GDP of countries over the globe and the increased issues of supporting business sector powers inside pretty much every country.

It ought to likewise be noticed that in the midst of the considerable number of pressures, countries by and by stand joined in the fight against coronavirus. According to a newspaper report, the Russian armed force was sent as a piece of clinical assistance to Italy. It must be realized that Italy has been confronting very brutal conditions as far as the spread of the destructive coronavirus. In under a quarter of a year, the infection has brought about the greater part of medical clinics being involved by several sufferers. (5)

Roughly, fifteen thousand have been tainted as of 13th of March, 2020. This noble activity by Russia is really helping Italy battle the wellbeing emergency that it is experiencing. It is appropriate to take note of that pioneers from around the world have been engaging masses to follow and energize social distancing in the quest for forestalling more instances of COVID 19 that could emerge in future. Taking a gander at the cooperation among countries, it tends to be fought that this wellbeing emergency has impacts affected the relations among countries in financial just as non-money related terms. Roughly, fifteen thousand have been tainted as of 13th of March, 2020. This noble activity by Russia is really helping Italy battle the wellbeing emergency that it is experiencing. It is appropriate to take note of that pioneers from around the world have been engaging masses to follow and energize social distancing in the quest for forestalling more instances of COVID 19 that could emerge in future. Taking a gander at the cooperation among countries, it tends to be fought that this wellbeing emergency has impact sly affected the relations among countries in financial just as non-money related terms.

CRITICAL ANALYSIS AND PROBABLE WAY FORWARD

Breaking down the present circumstance in India and across countries, it is essential to take note of that solitary the residents themselves are fit for controlling the spread of this virus through keeping up considerable distance among them. They should abstain from visiting any open spot and should rehearse self-segregation so as to forestall any additional spread of this virus. Pioneers of countries over the globe have been attempting to persuade masses into rehearsing social distancing through a few foundation of correspondence like social media, press, radio and TV. As a Researcher, it is critical to break down that if the spread of COVID 19 isn’t contained during these months, it may elevate up to the third stage which if at all occurs, will be hard to manage. (6)

The main path forward is to carefully cling to the administration discharged guidelines until the nations can contain the virus. This will not just assistance the majority living inside a specific nation yet, in addition, will stop the uncontrolled transmission of Corona to different nations since individuals will in general visit various nations following work, get-away, and so on. Limiting development starting with one nation then onto the next will likewise tackle the issue of speedy transmission of the virus thus as though at all the activity of self-isolation doesn’t work for the citizen’s., at that point, the legislature may receive the system including limitation of development not inside the nation however between at least two nations.

CONCLUSION

The Pandemic crises of COVID 19 isn’t settled however is as yet advancing as far as number of passing’s over the globe. In this way, attesting any announcement of end won’t be proper in light of the fact that the issue has not yet seen a defeat. It is relevant to take note of that the Pandemic crises have prompted a change in financial and exchange relations that the neighbouring nations share, yet it is intriguing to realize that every one of these nations remain in solidarity against the virus and are endeavouring hard to control the circumstance. Aside from this, comprehend this virus fundamentally spreads through social contact as it requires a surface to settle down not at all like other influenza viruses that are airborne. (7)

Mindfulness in regards to the life structures and spread of the virus among the majority is significant with the goal that they are not diverted by counterfeit data. Nitty-gritty comprehension of the logical starting point of Coronavirus is imperative to pass judgment on the veracity of data being shared significantly over the social media platforms. It ought to be comprehended that the majority will, in general, accept a snippet of data when they are in a condition of frenzy. The equivalent has been occurring over the globe, because of the Pandemic crises which in the long run outcomes in superfluous frenzy where the time could have been profitably utilized in finding and following inventive preventive measures in a quest for fighting the spread of COVID 19.

Theories of Recognition of States under International Law

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This article has been written by Mansi Tyagi, a student at Symbiosis Law School, Pune. The international community is an amalgamation of States and many other independent entities. This article details the theories of recognition for such independent entities into states. It discusses the two theories viz. Constitutive and Declaratory. However, it will be interesting to note that none of the two theories is perfect in their realm of recognition.

What is Recognition of State?

“A State – wherefrom the study of politics starts and where it ends.” – J.W. Garner

The world today is globally connected and weaved into one international community, with each sovereign state as it’s member. And thus, to enjoy the membership of such a global community it is crucial to be recognised as a state. So first and foremost, A state can be briefly defined as a conglomeration of a certain population, living in a territory, with a sovereign government ruling them. Thus as laid down by the Montevideo convention (1933), the elements required to be validly construed as a state can be narrowed down to population, territory, government and sovereignty. Now, what exactly is the meaning of recognition of a state? To get a status of a state, the recognition i.e. a unilateral acknowledgement is given by the other states. Even though States are not the exclusive international actors and nor are they the only ones to have an international legal standing and yet primarily are the result of international recognition. These recognitions are for getting a statehood, a status of the sovereign state, and a part of the community where the other states exist. One might ask what benefit does a state get after acquiring such statehood. Firstly, it incorporates such a state into the already existing international community; secondly, the recognition is a proof that all the requisites for a state have been complied with; and, thirdly the status of a state gives it the rights and obligations to enjoy and follow in the global community. But why is it important to even acquire one in the first place? Long term survival, or end to the territorial wars or have a stable status, there may be several reasons. State recognition is mainly based on two theories: Constructive and Declarative.

Constitutive Theory

Since the theory recognizes and constitutes an entity into a state, thus it derives its name as the constitutive theory. Its main proponents were Hegal, Anzilotti, Holland and Oppenheim. This theory majorly propagates that for an entity to come into being as a state, it needs the consent of the other existing states. Thus we can say that unless the states approve and acknowledge an entity as a State, the entity won’t be made one irrespective of the requisites it fulfils of being a State. Even though the soviet bloc considered it to be illegal, with the recognition from the western states, Lithuania became the first ‘state’ of the 15 soviet republics to declare its independence and statehood. Likewise, another example of this theory can be the recognition of Poland and Czechoslovakia through the treaty of Versailles.

However, the theory has faced a considerable amount of criticism throughout time. The very obvious of all is the criticism that despite possessing all the elements of a State, an entity’s dependence on the recognition by other states to acquire statehood is unnecessary. Also, there can be no mutual and single time when all the states recognize the statehood of another. Furthermore, no state can be obligated practically to recognize an entity as a state. Bangladesh being one example. Despite being recognized by India since its independence, it was recognized by Pakistan, China and the US much later. States recognized under this theory have a political character and lack a legal one. Also, it is very clear that even though a state recognises an entity much later, it recognizes such entity’s acts from the date of its inception. This thus indicates that recognition is a mere formality for acquiring statehood, and thus Constitutive theory is much criticized on the lines it works upon.

Declaratory Theory

Article-3 of the Montevideo Conference lays down the Declaratory theory. Also known as the Evidentiary Theory, in many ways, the declaratory theory is the better version of the constitutive theory, overcoming almost all the gaps that the former consists of. The major exponents of the theory are Professor Hall, Pitt Cobett, Wagner and Brierly. Unlike the constitutive theory which exclusively declares the recognition to be the basis of acquiring statehood, the declaratory theory is the opposite. It just requires the evidence or declaration of statehood and recognition becomes a mere formality. In fact, the value of recognition is diminished to the extent that a state under this theory can exist without the recognition as well. Thus as soon as an entity possesses all the elements of a State, it comes into existence. The declaratory theory is even practised in International Law and thus has a better standing in the global standing.

Despite the simplistic way of being constituted into a State, the theory fails to explain the consequent rights of such states. There are many states which are unrecognized and yet hold the status of statehood. However, since they are not recognized by the already existing states, their position in the international community stays unnoticed. Taiwan is one such example. And since such states go unrecognized, they cannot develop diplomatic relations or sign any treaties with the already existing states.

Contemporary Position

With the present trend and acceptance of the international community, the declaration of statehood overpowers the constitutive theory. And thus, any entity becomes a state as soon as it completes the criteria of statehood. Since the recognition of such states is upon the sweet will of the already existing states, this may not pose a threat to their statehood; however, recognition has several benefits which cannot be availed by states unrecognized. The right to sign treaties, make diplomatic relations, the right to sue in other states, right to demand disputed property between the jurisdictions of two states, and many more privileges and immunities as against the international community. However, with the Evidentiary theory in practice, there are many states which are still up for recognition from other states and are mostly the regions of conflict for the recognizing states. Somali land, Taiwan, Turkish Republic of Cyprus, and many more. In today’s scenario, however, to secure recognition, states lay down conditions which may not be in line with the conditions for statehood but are merely diplomatic ways to carry on in the international community.

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Writ Jurisdiction and Private Sector

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This article has been written by Nimisha Mishra, a second-year student of NALSAR University of Law. In the article “Writ Jurisdiction and Private Sector,” the author has tried to explain the requirement of enforcing writ petition in private sectors as well.

Introduction

In India, under Part-III of the Constitution, citizens are guaranteed certain fundamental rights. Some of these rights are absolute in nature and any kinds of violation of these rights are intolerable. To safeguard the public interest and to ensure justice, citizens are provided with an option of filing a writ petition before the High Court under Article-226 and the Supreme Court under Article-32.

There are five types of writs which can be issued in the court of law and they are Habeas Corpus, Mandamus, Prohibition, Certiorari, Quo Warranto. But generally these writs are enforceable against the state only. Section 12 of the Constitution of India defines the state, as a sector which is either controlled or authorized by the government. Which means those entities which fall outside the definition of the state is considered as the private sector. Henceforth the court in P.D. Shamsadani v. Union Bank of India[1] drew the distinction between the public and private sector and held that fundamental rights are not enforceable against the private sector.

Horizontal and Vertical Application

Violation of fundamental rights can be protected against private and public sector by vertical and horizontal application. Vertical application of fundamental rights means the action can be brought only against the state and not against any private sector. Contrary to this horizontal application of fundamental rights can be enforced against the private sector.

Initially, after the enactment of the Constitution, the vertical application of fundamental rights was sufficient. The reasoning behind making only the state responsible for the fundamental rights of the citizens was the huge power and authority vested with it. To avoid the misuse of such power and to stop it turning into a totalitarian state, the constitutional maker considered it necessary to make state answerable for its action. State has to ensure the welfare of its citizen and is bound by the principle of non-discrimination, natural justice and fairness.

In S. Babu and others v. Managing Director, Hindustan Teleprinters Limited (HTL), Chennai and others,[2] the petition was brought before the court to make a company liable for the ex-gratia amount which they have not given to their employees. The contention here is that initially HTL was the public sector organization but later on the government disinvested its share and it ceased to be a public undertaking. The challenge rose before the court was whether the writ of mandamus can be initiated against a private sector. The court held that since at the time of filing the writ petition the company was neither a public undertaking nor functioning under the government authority and hence it did not hold the company liable.

The court in several cases reiterated the fact that the petition related to contractual matter dealing entirely with the private sector will not be entertained in the court of law. The court contended that matters relating to private contract should be dealt in civil court and the high court or supreme court do not have jurisdiction to deal with the said cases. The jury further added that the High Court can invoke its writ jurisdiction when public law remedy is involved.

Impact of LPG Policy

In 1991 with the emergence of Liberalization, Privatization and Globalization (LPG) policy, the huge divide between public and private sector started diminishing. Increasing demand for the lucrative goods of private sector increased their power in the market. And the continuous dereliction of the state control is resulting in the distribution of power in the private sector. With the growth of the private sector, there is an increase in the power hold by private bodies.

  • Recognition of rights

With the advancing society, people have started recognizing their rights and the fact that these rights are not only violated by the state but also by the private bodies. To protect and safeguard the rights of an individual in such circumstances horizontal application of fundamental rights is implemented by the constitutional court.

  • Enforceability of absolute right

There are certain fundamental rights which even the private sector cannot violate and in case of violation of those rights, those sectors could be held liable. Article-15 under part III of the constitution prohibits discrimination on the grounds of sex, caste, race, and any kind of violation of this right punishes both private and public sector equally. Similarly in Article 17, 21, 23 and 24 horizontal application of fundamental is applied.   

  • Concerns related to privacy

Another very important reason why the horizontal application of rights should be applied is the concern of the privacy of an individual because of the advancing technologies. There are various ways by which today’s expanding Private IT sector could easily manipulate the data of individuals. Moreover if in such circumstances actions are not taken by the court against the private sector than it will further encourage these sectors to manipulate data to fulfil their ulterior motive. 

In fact Article-21 of the constitution which deals with life and liberty of an individual states that “no person shall be deprived of his or her personal liberty except the procedure established by the law. The modern definition of personal liberty also includes Right to Privacy. The application of Article 21 is not restricted to state only but is also extended to non-state actors, i.e. private sector. Similar to Article 21, Article 19 is also established without restricting only to state. In Vishakha v. State of Rajasthan[3], the court reiterated that the safety of women at workplace is their fundamental right and it should be adopted mandatorily by both public and private sector.

The citizen can surely file a writ petition under Article 32 of the Supreme Court, against the public sector against the act or omission of fundamental rights. However, this right with the citizens is only applicable to the public sector and its applicability in the private sector is limited to only a few cases. 

Conclusion

Certain Fundamental rights are not enforceable against private sector even though they yield equal or even more power than the public sector. The court should adopt a mechanism where even the private sector should be held answerable and responsible for their actions. The disproportionate power vested with the private sector give them enormous chances to misuse their power which in some cases infringes the fundamental rights of the citizens. If the court enforces the horizontal application of rights in full form than it the chances of violation of fundamental rights can be greatly reduced.

References

[1] P.D. Shamsadani v. Union Bank of India, AIR 1952 SC 59.

[2] Babu and others v. Managing Director, Hindustan Teleprinters Limited (HTL), Chennai and others, 2013 (3) TMI 339 MADRAS HC.

[3] Vishaka & Ors. v. State of Rajasthan, AIR 1997 SC 3011.

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Dissolution of Marriage: Theories, Forms of Divorce, Grounds

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This article is written by Samridhi Sachdeva pursuing BBA LLB from Gitarattan International Business School, GGSIPU. This article talks about the meaning and theories of dissolution of marriage, forms and grounds of divorce under the Hindu law.

Introduction

In Hindu law, the marriage is a sacramental union, where two people take vows and reside together, followed by all the cultures of the Hindu religion. But, sometimes either by the misconduct of any of the partners or by mutual consent of both the partners, the marriage can be dissolved. In early times, the marriages were unbreakable or indissoluble. But with time, as the matrimonial offences became the cause for unhappy marriages, then need was felt to end the unhappy marriages.

Dissolution of marriage is just another form of divorce basically. It can be done in either of the two ways: fault theory and no fault theory. In the fault theory, the marriage is dissolved on the basis of misconduct by one partner. And, in no fault theory, the parties mutually agree to live separately by dissolving the marriage. And, in most cases, the marriage is dissolved due to the no fault theory of dissolution. Further in the article, theories, grounds and forms of divorce are discussed.

Theories 

The theories of dissolution of marriage are listed below:

  1. Fault or Guilt theory- In this theory, one of the parties of marriage commits a matrimonial offence. Matrimonial offences like Adultery, Cruelty and Desertion are the main roots that frustrate the marriage. In early times, adultery was the major transgression that led to the dissolution of marriages. Cruelty became a matrimonial offence because it undermines the very purpose of marriage that partners will in harmony and peace together. Desertion destroys the basic assumption that the partners will cohabit with each other. In this guilt theory, there has to be one guilty and one innocent person. This theory lays down that the person who is seeking divorce is the innocent party. The dissolution takes place by punishing the guilty person. 
  2. Consent theory- This theory is based on the principle that if the parties can enter into the marriage with their mutual consent, then they can also dissolve the marriage by their mutual consent. Sometimes, the parties may realise that they made a mistake by entering into the marriage and maybe they want to end their marriage by their mutual desire. Or parties may realise that their married life is not happy or on the account of their incompatibility of temperament or because of any other reason by which they can not live together happily. The protagonists of this theory hold that by dissolving the marriage with mutual consent, it will bring out the happy marriages and reduce the number of unhappy marriages. This theory was criticised on the basis, that it leads to chaos in the family and hasty divorces. This theory is also mentioned in the Hindu Marriage Act, 1955, under section 13B. 
  3. Irretrievable Breakdown theory- This theory is the most controversial theory. According to this theory, the marriage unites two persons on the basis of love, affection and respect for each other. And if any of these is destroyed and their marriage has come to an extent where it can be repaired, that is the point when the spouses can not live together with peace and harmony. And then there is no point left to take that marriage further. This theory is presumed de facto. The fact that parties are not living together with or without any reasonable excuse, shows that parties are unwilling to live with each other. This breakdown theory is not a ground for divorce under the Hindu Marriage Act and Special Marriages Act. But, Supreme Court in a recent judgement in October 2019, ruled that divorce can be granted if a marriage is totally irreparable and emotionally dead. The facts of the case were that the husband and the wife were living separately from the last 22 years. And his petition for the divorce was rejected by a district court and Andhra Pradesh High Court because the wife did not agree to give consent to dissolve the marriage. The court invoked the powers of Article 142 of the Indian Constitution to grant divorce on the basis of this theory. This will only apply in cases where one of the parties does not agree for the divorce.

Forms of Divorce

The three different forms of divorce are dissolution of marriage, judicial separation and annulment. 

1. Dissolution of Marriage – In this, the person desiring for divorce usually end up filing it. This can be done if any party has committed any matrimonial offence, then the innocent party can claim for divorce in the respective court. And, also if both the parties by their mutual consent agree to end the marriage, then by following all the procedures, the parties can be divorced. 

2. Judicial Separation– The judicial separation is mentioned in the Hindu Marriage Act, 1955, under Section 10. It describes that the husband and wife decide to live separately and might not claim for divorce. They may file for judicial separation with divorce or judicial separation, may further lead to divorce. The couples take this step because of some religion or custom by which they do not want to get divorced. So, they can live separately by the order of judicial separation.

3. Annulment– In annulment, the court declares that the marriage never existed. Like, if any marriage occurred at a minor age of any of the partner or if either of the partners is already married to someone else. This annulment is only possible when the marriage was not legal at the very first age. The conditions for a valid marriage are described under section 5 of the Hindu Marriage Act, 1955, under that the conditions like the majority of the age and the spouse should not be married to someone else are violated, then the marriage can be annulled.

Grounds for Divorce

As mentioned in the Hindu Marriage Act, 1955 under section 13, there are several grounds, on which divorce can be granted. It lays down ground like adultery, cruelty, desertion, conversion, insanity, incurable leprosy, venereal disease, renunciation of the world. Also, there are some grounds on which, the female can alone sue or end the marriage, like husband, since the solemnisation of the marriage, is guilty of rape, sodomy, bestiality, cohabitation not resumed for one year, marriage of the wife took place when she was 15 and repudiated the marriage before she attained the age of 18 years and the husband has married more than one wife before the commencement of this act.

  1. Adultery- This offence, though decriminalised under Indian Penal Code, but is still a ground for divorce. It occurs basically when the respondent comes into voluntary sexual contact with other person, after the solemnisation of the marriage between the respondent and the petitioner. The burden of proof of adultery lies on the petitioner, to prove the adultery by the respondent. 
  2. Desertion- It is one of the grounds for divorce or judicial separation. If the respondent runs away for two years then the decree of judicial separation or divorce may be passed by the court by the consent of the parties. Also, if the respondent deserts away for 7 years, then he will be considered as dead and ultimate and obvious divorce decree will pass. If the desertion is done for some reasonable cause, then the respondent can not be held liable. So, there should be no reasonable cause for desertion.
  3. Cruelty- It is the ground of divorce as well as judicial separation. Also, it is one of the most difficult matrimonial crime to define. Cruelty can be both mental and physical. If the acts of the respondent or his family members harm the petitioner, then the divorce can be granted on the basis of cruelty. In India, it is basically done for the demand of dowry, false accusation of adultery or if the partner refuses to have marital intercourse. 
  4. Insanity- If the insanity of a person is incurable for more than 2 years, then the divorce may be granted.
  5. Leprosy- Leprosy is given as a ground for divorce as well as for judicial separation. But the duration of leprosy is not defined in the Hindu Marriage Act, it only describes it to be virulent and incurable.
  6. Venereal diseases- The Hindu Marriage Act, lays down this venereal diseases as the ground for divorce and judicial separation and it should be in a communicable form. The duration of the disease is not mentioned. And it is immaterial that the disease is curable or was contracted innocently
  7. Conversion to a Non-Hindu religion– The requirement to get divorce on this ground is that the respondent has ceased to be a Hindu and has converted to another religion. If at the time of marriage, the person was Hindu and ceased to be a Hindu after the marriage, then the decree of divorce will be passed by the competent court.
  8.  Renunciation of the World- The respondent should have been known to renounce the world by entering into any religious order and leaving behind his wife and family. Then the divorce will be granted.

Conclusion

In Hindu law, there are various forms of divorce. If the partners in a marriage are not living happily, they can file for divorce or file for judicial separation. The various grounds mentioned above can help to dissolve the unhappy marriages. 

The Journey of Freedom of Press in India over the Years

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This article is written by Ishika Gupta pursuing BBA L.LB from Gitarattan International Business School. This article aims to highlight the fate of freedom of Press in India and the restrictions imposed on it.

“Our liberty depends on the freedom of the Press, and that cannot be limited without being lost.” ~ Thomas Jefferson

Freedom of Press or media means the right to express and communicate thoughts through the means of various media including electronic and print media. This right excludes the interference from any overreaching state.  

INTRODUCTION

Lord Mansfield described liberty of Press as the liberty to print and publish whatever one wants to and there is no requirement of prior permission.  Not only newspapers and periodicals but also pamphlets, circulars and every sort of publication which involves information and opinion are included in freedom of Press as said in “Sakal Papers Ltd. vs. Union of India”.

It is the duty of the government to distinguish between materials whether it is to be publicised or protected from disclosure to the public.  The materials which are to be protected may be sensitive, classified or secret or may be of national importance or the same should not be made public due to national security reasons.  

As per Universal Declaration of Human Rights, 1948, Freedom of opinion and expression is a fundamental right given to everybody and it also includes freedom to hold opinion without any interference and to receive and deliver information and opinions through any form of media. Equal treatment is given to spoken and published expression as the freedom of speech is often covered under the same laws as the freedom of Press.  Sweden was the first country to introduce Freedom of Press Act, 1766 and adopted freedom of Press under its constitution.  

However, in India, the Fundamental right of freedom of Press is implicit in the right of freedom of speech and expression under Article 19 (1)(A) of the Constitution and it is necessary for political liberty and proper functioning of democracy.  

When men cannot freely convey their thoughts to one another, no freedom is secured, where freedom of expression exists the beginning of a free society and means for every retention of liberty are already present.  As Dr. Ambedkar in his speech said that the Press has no special rights which are not to be given or which are not to be exercised by the citizen in his individual capacity.  The Editor of a Press or Manager is merely exercising the right of expression and therefore no special mention is necessary of the freedom of the Press.  

HISTORY

Indian Press has a long history right from the time of British rule in the country.  The British Government enacted a number of legislations like the Indian Press Act, 1910, Indian Press Emergency Act in 1931-32 to control the Press.  However, after the enactment of the Constitution of India, there was a change in the situation.  The Preamble of the Indian Constitution guaranteed the freedom of expression to all its citizen and the freedom of Press has been included as a part of freedom of speech and expression under Article 19.  

In Indian Express Newspaper vs. Union of India, the Court observed that the expression “freedom of Press” has impliedly covered under Article 19(1)(A) of the Constitution of India.  It means freedom from the interference of any authority which would have an effect upon content and circulation of the newspaper.  Nobody could intervene in the freedom of Press in the name of public interest. 

In “Romesh Thapar vs. State of Madras”, a law banning entry and circulation of the journal in a State was held to be invalid.  The Court held that there can be no doubt that freedom of speech and expression includes freedom of propagation of ideas and that freedom is ensured by circulation.  Freedom of circulation is as essential as freedom of publication.  

Freedom of Press has three essential elements namely:

a)  Freedom of access to all sources of information.

b)  Freedom of publication and 

c)  Freedom of circulation.  

In “Prabha Dutt vs. Union of India”, the Supreme Court allowed the representatives of a few newspapers to interview Billa and Ranga, the death sentence convicts, as they wanted to be interviewed. 

However, in India, Press has not been able to practice its freedom to express the view completely as there are various instances when the freedom of Press has been suppressed by the legislature.  In case of “Brij Bhushan vs. State of Delhi” and “Virender vs. State of Punjab” prohibition of newspapers from publishing its own views or view of correspondents about a topic has been held to be a serious encroachment on the freedom of speech and expression.  

In “Sakal Papers Ltd. vs. Union of India”, the Daily Newspapers Order, 1960, which fixed the number of pages and size of newspapers was held to be violative of freedom of Press and not a reasonable restriction under Article 19(2).  

RESTRICTIONS

The Indian Constitution does not mention the word “Press” expressly under the right to freedom of speech and expression.  Hence, it is included under general fundamental rights given under Article 19 and therefore, is subject to restrictions under Article 19(2).  

Clause (2) of Article 19 of Indian Constitution, enables the legislature to impose certain restrictions on free speech under following heads:

1)  Sovereignty and integrity of India: This ground was added to Clause (2) of Article 19 by the 16th Amendment.  Under this Clause freedom of speech and expression can be restricted so as not to permit to anyone to challenge the integrity and sovereignty of India or to preach cession of any part of India from the Union.  

 Sedition: Sedition embraces all those practices whether by word, or writing which is calculated to disturb the tranquillity of the state and lead ignorant persons to subvert the Govt. Sedition is not mentioned anywhere under Article 19 (2) as a ground of restriction on freedom of speech and expression.  But it has been held in “Devi Saren vs. State” that sections 124A and 153A of Indian Penal Code impose reasonable restrictions in the interest of public order and is saved by Article 19 (2).

2)  Security of the State: In the interest of security of the State, reasonable restrictions can be imposed on freedom of speech and expression. In “Romesh Thapar vs. State of Madras”, the Supreme Court said that there are different types of offences against public order but not every public disorder amounts to a threat to the security of the state.  The term security of the State applies only to higher grades of public disorder like rebellion, waging war etc.

3) Friendly relations with Foreign States:  By the first amendment, this provision was added with the objective to prohibit unrestrained malicious propaganda against a foreign-friendly State which may jeopardise the maintenance of good relations between India and that State.

4) Public Order:  The Supreme Court said that public order denotes that state of tranquillity which prevails among the members of political society as a result of internal regulations enforced by the government.  The public order also includes public safety and public safety means the safety of the community from external and internal dangers.  In “Central Prison vs. Ram Manohar Lohia”, the Court rejected the arguments that the instigation of a single individual not to pay tax would itself destroy public order.   

5)  Decency or morality: A publication is indecent or immoral, if it tends to produce negative thoughts and corrupt minds of those who are opened to such immoral influences and into whose hands, a publication of this sort is likely to fall.  Section 292 to 294 of the Indian Penal Code provide instances of restrictions on the freedom of speech and expression on the ground of decency or morality.  

6)  Contempt of Court:  If the freedom exceeds the reasonable and fair limit and amounts to contempt of Court, the restrictions can be imposed.  The contempt of Court can be either of two types, civil contempt and criminal contempt.

7) Defamation:  A statement which injures a person’s reputation amounts to defamation.  Section 499 of Indian Penal Code lays down the punishment related to defamation.  In Auto Shankar Case i.e. “R. Rajagopal vs. State of Tamil Nadu”, the Supreme Court held that no authority can impose a prior restriction upon the publication of defamatory material against its officials.

8) Incitement to an offence:  This ground was added by the first amendment.  Offence shall mean any act or omission made punishable by law and freedom of speech and expression cannot confer a licence to incite people to commit offence.  

Despite all this suppression, difficulties, restrictions the press has managed to achieve a lot of success and fame. It has been a long journey but the press has proved itself useful every time.

As in the case of Jessica Lal i.e. “Manu Sharma v State of Delhi”, Jessica was killed by Manu Sharma the son of Haryana minister Venod Sharma as she refused to serve him liquor in the restaurant. The case could not get success at that time due to lack of evidence but it got reopened due to media and public outcry. Organisations like Tehlka and NDTV have been particularly influential and made Venod Sharma resign.

Similarly, in Priyadarshini Mattoo’s Case, the victim was a law student and got raped and murdered by Santosh Kumar her colleague as she refused his proposal. Santosh Kumar was the son of an IPS officer and the case finally got judgement after a long trial due to the significant role played by the media.

CONCLUSION

Freedom of press is essential for the proper functioning of the democratic process. Democracy means Government of the people, by the people and for the people; it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential. This explains the constitutional viewpoint of the freedom of press in India. It has been sixty years since India became Republic & commencement of the Constitution there is been a lot of ups & downs in our democracy & the press also has come across age.

Thus, we can conclude that the time has come for the press of the largest democracy of the world to work with hand-in-hand with the judiciary for the welfare of its subjects. The day is not far away when there will be no eclipse of injustice & the sun of justice will shine brightly forever.

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Moot Court Challenges: How to Overcome|Lexpeeps Workshop: On 5th June

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Lexpeeps is also focussing on several social works like providing information and free legal aid to the poorer section of society.

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Lexpeeps.in is organising a live workshop on “Moot Court Challenges: How to Overcome”. Students will learn how to prepare award-winning memorial and how to argue in the moot courts. It will enable the students to master the overall mooting skills in order to make them perform better.

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SEPARATION OF POWERS

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This article is written by Sharat gopal, studying BA-LLB at Delhi Metropolitan Education, GGSIPU. In this article, he has discussed the concept of ‘Separation of power in India’ and its presence in Indian constitution in form of various provisions.

Introduction

By hearing the term “separation of power” the first name that comes to our mind is of Montesquieu. He propounded the theory of Separation of Power in the year 1748 in his book “Spirit of Law”. He believed that if all the powers are vested within one person or a group of persons, then it will lead to a tyrannical form of rule over the people and any government or authority with such nature will be a disaster for the people. There will be complete anarchy in such form of government. In order to prevent such kind of anarchy, he believed that there should be a separation of powers between the organs of the state.

Organs of Government

There are 3 main organs of the government, they are-

  1. Executive
  2. Legislature
  3. Judiciary

Executive- executive is the organ of state, which is responsible for the proper implementation of the rules and regulations in the country. Their primary function is to implementation of rules and regulations made by the legislature. The executives are often involved in the making of these policies as they have a better view of the existing conditions of the state as compared to the legislature. Examples of executives are, Prime Minister, President, Ministers, and Civil Servants etc.

Legislature- the legislature is the organ of state, which is responsible for making of rules and regulations for the country. It is an organ which is responsible for making policies for the country, by which the state will be governed. In simple terms, it can be said that the legislature is the organ which is responsible for making laws for the whole state. Legislature is the assembly which consists of people elected, to represent public opinion and power of the public. Legislature has the responsibility of making laws and statues, which are necessary for the smooth functioning of the country.

Judiciary- the judiciary is the organ of state, which settles all disputes and applies the laws and check their constitutionality of these laws made by the judiciary. The real meaning of the law is decided when the judges give their judgements on various cases. The applicability of the law, its flaws, loopholes, all are discussed and understood during the judgement of cases. The primary function of the judiciary is to protect the constitution and fundamental rights of the people. Interpreting law and applying them inappropriate stances is one of the functions of the judiciary. This organ decides the scope, nature and meaning of the laws passed by the legislature.

These are the 3 organs of the state. The legislature is responsible for making of laws, the executive is responsible for implementing these laws and judiciary is responsible for interpreting these laws and solving disputes which arise due to the laws which are made by the legislature and imposed by the executive.

SEPARATION OF POWERS

According to Montesquieu, there should be a clear-cut division of power between the 3 organs of state i.e., legislature, executive and judiciary, to avoid arbitrariness. He suggested that these organs should have separate departments and they should not interfere in each other’s department. They should be independent in nature.

Separation of powers, genesis came from the constitution of America, where this concept of separation of powers is followed strictly. It came into effect to avoid a government which will tyrannical and arbitrary in nature.

Features of Separation of Power

  1. Each organ of state is restricted to its own field, and is not allowed encroach in other fields.
  2. Due to Separation of power, the concept of unlimited power in one hand is eliminated.
  3. There is saying, “Power corrupts and absolute power corrupts absolutely”. Separation of power introduces to the system of “checks and balances”.
  4. Separation of power is desired for having an effective form of governance.

Basic concepts of Separation of Power

  1. No person should be a part of more than one organ of the state.
  2. One organ of state should not interfere or control another organ.
  3. One organ should not perform the functions of another organ.

Separation of Power in India

 Separation of power is followed in India but not in a way as it is followed in America. India follows the separation of powers in a not very strict manner but its separation is ensured in the constitution as mentioned below –

Separation of Power between Judiciary and Executive

India follows the rule of law, which states that the law will supreme and nothing is above law. If there is no separation of power followed and, judiciary and executive powers are with one person or a group of person, it will lead to anarchy. The primary function of the judiciary is to provide justice and it cannot be provided if, one is the judge in his own cause. If there is no separation between judiciary and executive, then justice cannot be delivered effectively.

In order to avoid this situation, the constitution of India in Article 50 clearly states that the state should take all necessary steps to separate the judiciary from the executive.

Separation of Power between Judiciary and Legislature

The constitution of India in article-122 states that the court cannot inquire into the proceedings of the parliament. The court cannot question the parliament on any grounds or irregularities in parliament. And Article 121 states that the parliament cannot discuss about the conduct of any Judge of the Supreme Court or High Court.  Also under Article-105 of the constitution, it provides parliamentary privileges to the members of parliament. In this way constitution has ensured separation of power between judiciary and legislative.

Separation of Power between Executive and Legislature    

There is no specific separation of power mentioned in constitution between executive and legislature. But as the executive is a part of the legislature. President who is the part of the executive has the power to summon both houses of parliament and also have the power to prorogue the both houses and dissolve the house of people. Also, has the power to appoint various officers, but this all is done through the advisory committee of the president i.e., the council of ministers and this way legislature is not in control of the executive, as also legislature has the power to execute impeachment process against the president.

The concept of separation is of power is not rigidly practised in India that is why India uses the system of checks and balances for separating organs of the states. India does not follow the SOP in a strict form as-

  1. Article-53 of the constitution states that the President is vested with executive powers but he will act on the advice of the Council of Ministers.
  2. President can pass an ordinance which is the law, and making law is the role of the legislature.
  3. Judges of Supreme Court are appointed by President and they are impeached by the parliament.

CASE LAWS

In the case of Ram Jawaya Kapoor V/S State Of Punjab(AIR 1955 SC 549), it was held that executive action is derived from the legislature and it is dependent on it for its legitimacy and. And in Indian constitution separation of power is not in absolute terms but has sufficiently distinguished the functions of all three organs.

 In the case of Indira Nehru Gandhi V/S Raj Narian(AIR 1975 SC 2299), the Supreme Court held that in the constitution, there is a functional overlapping within the organs of the government, as there is no rigid separation of power in India, unlike the USA.

CONCLUSION

In India, we follow the separation of function and not the separation of power. And hence are not abided by the rigid principles of separation of power like in USA, Nepal, France etc. But still, somewhere in its nature, it preserves principle of separation of power in its doctrine of check and balances.  As for the smooth functioning of the government, all the three organs must be in coordination and cooperation.

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Burden of Proof and Presumptions in the Indian Evidence Act

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This post is written by Anushree Tadge, a 3rd-year law student of ILS Law College, Pune, she has tried to explain briefly both the concepts- Burden of Proof and Presumptions in the Indian Evidence Act.

Introduction

In any kind of legal proceeding, the question pertaining to proving of a fact (by both the parties) is answered with another question- on which party does the burden of proof actually lie? The court does not expect proof of self-evident facts and neither are all cases simple enough to demand so and therefore the Court holds a ‘presumption’ of continuity of certain implied facts until anything contrary is brought to the Court’s attention. Therefore, the burden of proof and presumptions go hand in hand and both need to be understood briefly. Chapter VII of Part III of the Indian Evidence Act deals with the provisions of the party does burden of proofs and presumption.

Presumptions generally refer to a process of giving a permit to a few facts on the basis of possibility (when such possibility has comparatively a greater substantiate value than general facts). Similarly, the concept of presumptions in law means inferences/ascertained facts which are concluded by the authority of Court in regards to the existence of certain facts already laid out in the matter. Generally, consequences of certain acts lead to the drawing of inferences, these can either be affirmative or negative. They are ruled out by using the mechanism of the most probable reasoning of such circumstances.

Section-114 of the Indian Evidence Act especially deals with the provisions that ‘the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of

  • natural events,
  • human conduct, and
  • public and private business, in their relation to the facts of the particular case’.

Burden of Proof

Let’s briefly understand what the concept of burden of proof to understand presumptions better. Facts can be portrayed in the Court of Law subject to parties affirming it or denying it. Section-101 of Evidence Act if a party asserts and affirms to a particular fact, the burden of proof automatically lies on it and the other party is supposed to counter it. Since the Courts give judgement on the basis of truthful value of affirmative/ otherwise facts, it is crucial that the same are accurately proved. Also, now that is is more convenient and crucial for the party affirming a face to prove it than the party countering it, the burden of proof also lies on the former. Supreme Court in the famous case of State of Maharashtra v Vasudeo Ramchandra Kaidalwar (1981 3 SCC 199) held that the expression ‘burden/ onus of proof’ has prominent two meanings, one is the legal burden and second is the evidential burden. In a criminal trial, the accused is considered to be innocent until proved guilty and the prosecution is responsible to prove his guilt. Similar sections that emphasize on the topic of the burden of proof- 103 till 113. Further, only a person who wants to believe a particular fact should prove the value of that fact and this was held in the landmark case- KM Nanavati v. State of Maharashtra (AIR 1962 SC 605), whereas naval officer was held guilty for supposedly murdering his wife’s lover. Although since the accused could not prove that he fired the shots accidentally or in self-defence.

Presumption of facts and Presumption of law

Presumption of Facts refers to the presumptions that are made on the basis of facts/ collection of facts relevant to the case. They are uncertain and rebuttable in nature. The Court may or may not choose to either presume such facts. For e.g. Presumptions of abetment as to suicide by a married woman.

Presumption of law refers to the presumption that is made by the Court (bound by law) when there remains an absence of proof in certain situations. They are certain, conclusive and mandatory for the Courts to follow too because the legislations guarantee it. For e.g. Presumption of Innocence.

Mixed Presumptions (Presumption of Fact and law both)

The other kind of presumption is – Mixed presumptions, these are presumptions of both law and Fact. Since such presumptions are mainly confined to the English law, it is not essential to deliberate on it here, it is of value in the English property-related law. In a very nominal position, even The Indian Evidence Act, 1872  has made some provisions for the mixed presumptions pertaining to both fact and the law. While in certain sections of the Evidence Act, it has been provided that the court may presume certain facts although, in other sections, The court shall presume a fact has been put to usage. Section-4 of the Evidence Act is of prime importance here as it controls the other sections and gives a direction for the Courts as to how to conduct the procedures relevant in the sections.

Classification of Presumptions under the Indian Evidence Act 1872

Various sections of the Indian Evidence Act of 1872 layout provisions with respect to provisions, briefly stating the same below-

It can be said Section-4 deals with three categories of presumptions namely- Discretionary Presumptions, Mandatory Presumptions and Conclusive Proof, Further the other Sections which specifically deal with ‘Discretionary Presumptions’ relating to documents are sections 86, 87, 88, 90 and 90-A. Presumptions under Section 86 refers to Presumption as to certified copies of foreign judicial records. The following sections- 87 to 90-A Refers to Presumption as to Books, Maps and Charts, as to Telegraphic Messages, as to documents thirty years old respectively. Now, Section 90-A is very similar to Section 90 of the same Act in structure and it explains the presumption that applies to electronic records which are 5 years old. In the other case of Dayabhai v State of Gujarat (AIR 1964 SC 1563), the Apex Court held that it is the sole duty of the prosecution to establish, beyond any kind of reasonable doubt that the accused committed the offence.

Further

Further, the Section-113A lays out the provision- Presumption as to abetment of suicide by a married women, Section-113B explains the Presumption as to dowry death. Irrebuttable presumptions are a broad avenue and the provisions explaining it should also be considered. Irrebuttable presumptions are those legal rules which are not a consequence/ outcome of any evidence or fact. Section-82 of the Indian Penal Code is a well-known example of irrebuttable presumption of law which provides that nothing is to be considered as an offence which is done by a child under 7 years of age. Section-115, 116 and 117 of the Indian Evidence Act 1872 also deals with the rule Estoppel which are the examples of irrebuttable presumptions. Section-115 talks about Estoppel. Section-116 talks about Estoppel of tenant and of the license of the person in possession. Section-117 explains the provision of Estoppel of the acceptor of a bill of exchange, bailee or licensee.

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Rylands vs. Fletcher (1868) L. R. 3 H.L. 330.

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This case analysis prepared by Deepika pursuing BA-LLB from IIMT & School of Law, GGSIPU, Delhi. In this case analysis, a landmark case of tort law Rylands v. Fletcher has been discussed. This is a very significant case, as the rule of ‘Strict Liability’ originated from this case.

Introduction

Rylands vs. Fletcher (1868) L.R. 3 H.L. 330 is one of the landmark cases of tort law.  In this case, The House of Lords laid down the rule recognizing ‘No Fault’ liability. The ‘Rule of Strict Liability’ originated in this case. By this rule, a person may be liable for some harm even though he is not negligent in causing the same. Further, this case paved the way for ‘The Rule Of Absolute liability’ in India.

Judges (sitting)

 Lord Cairns and Lord Cranworth

Decided on

17 July 1868

Major contribution of the case

‘The Rule of Strict Liability’ originated in this case.

Facts of the case

The defendant, Rylands got a reservoir constructed, through independent contractors, over his land for providing water to his mill. There were some old disused shafts under the site of the reservoir, which the contractors failed to observe. So they didn’t block the shafts. When water was filled within the reservoir, it burst through the shafts. As a result plaintiff’s coal mines on the adjoining land was flooded. The defendant didn’t know about the shafts and he had not been negligent although the independent contractors had been. The negligence was on the part of independent contractors. Since the plaintiff, Fletcher has to suffer losses, he sued defendants.

Issues raised

  • Whether there was any nuisance or not?
  • Was the use of Defendant’s land unreasonable and thus was he to be held liable for damages incurred by the Plaintiff?

The Court Of Liverpool

This court’s ruling favoured the plaintiff on the basis of both trespass, (as the flooding was deemed not to be “direct and immediate”) and nuisance.  Later a court order led to an arbitrator from the Exchequer of Pleas, who was appointed in December 1864. The arbitrator decided that the independent contractors were liable for negligence since they had known about the old mine shafts, still showed negligence in dealing with it. The arbitrator said,  Rylands,  had no way of knowing about the mine shafts,  so he couldn’t be liable.

Exchequer of Pleas

The case then went to the Exchequer of Pleas, where it was heard between 3rd and 5th May 1865. It was heard on two points:

  • Whether the defendants were liable for the actions of the contractors and
  • Whether the defendants were responsible for the damage regardless of their lack of negligence.

They decided for the first point that the defendants were not liable, but they had a diverse opinion on the second point. Channell B recused. Pollock CB and Martin B held that the defendants were not liable, as since a negligence claim couldn’t be brought,  there was no valid case. Bramwell B, dissenting, argued that the claimant had the right to enjoy his land free of interference from water that came from defendants reservoir, and so as a result the defendant was guilty of both trespass and the commissioning of a nuisance. He stated that “the general law, wholly independent of contract” should be that the defendants were liable, “on the simple  ground that the defendants have caused water to flow into the [claimant]’s mines, which but  for their actions wouldn’t have gone there…”

Court Of Exchequer Chamber

Fletcher was angered by the decision of the three exchequer judges and appealed to the exchequer chamber composed of six judges. The six judges “overturned the previous decision”. Fletcher. Blackburn J spoke on the behalf of all the judges and said that “we, the judges of the exchequer think that correct rule of law is that, any person, who for his own intentions brings on his land anything, accumulates and keeps on the land that thing, which is  likely to cause trouble if it escapes, must keep it at his own risk, and, if he doesn’t do so, is clear  (without need for further information), in charge of all the damage which is that the natural effect of its escape.” Blackburn J  further said that that person can  excuse himself from the liability  by taking certain defences like –  that the escape was caused because of the  plaintiff’s default; or by proving that the escape was a consequence of the act of God” (Fordham Margaret1995)

The judges concluded that “none of these excuses had been proven in the case”, and it was, therefore “unnecessary to find out what another excuse would be sufficient”. The judges,  in the judgement, relied on the “basis of the liability for damages of land through the tort of chattel of trespass, the tort of nuisance”, as well as “the scienter action (common law rule that deals with the damages directly done by animals to human beings)” (Duhame.org, 2009).

The court of Exchequer Chamber provided a rule when the liability of an owner, who has brought any dangerous in his premises can arise. At the same time, the court also discussed certain defences which can absolve the liability.

The court of Exchequer Chamber held Rylands liable for the damage done to the Fletcher. The court held that the defendants owed a duty of care towards the risk, as they were aware of the fact that if that quantity of water would escape, it would be harmful. There was a want of care by the defendants, as they were doing unnatural use of their land by storing that huge quantity of water. Though it was not harmful that time, but would be harmful if escapes.

 Rylands felt that this was not just. He appealed to the House of Lords.

House Of Lords

The House of Lords dismissed Ryland’s appeal. They agreed with the six exchequer judges but went further to feature a limitation on the liability.

Judgment

The House of Lords dismissed the appeal and agreed with the six Exchequer judges. Lord Cairns, while speaking for the House of Lords, stated their agreement of the rule stated above by Justice Blackburn in the court of Exchequer Chamber but included a further limitation on liability. The one more requirement is that the land from which the escape occurs must have been modified in a way which would be considered non-natural, unusual or inappropriate.  The decision of House of Lords added a requirement that the use be ‘non-natural’. The judgement of this case was delivered on 17 July. In this the court consisted of only two judges, Lord Cairns and Lord Cranworth; Lord Colonsay didn’t attend the case.

Three essentials, for the application of the Rule of Strict Liability

  • Some dangerous thing must have been brought by a person on his land.

According to this rule, the liability for the escape of thing from one’s land arises when the thing collected was a dangerous thing. It means a thing likely to do mischief if it escapes. In Rylands v. Fletcher, the dangerous thing was a very large body of water

  • The thing thus brought or kept by an individual on his land must escape.

For the rule in Rylands v. Fletcher to apply, it is also essential that the thing causing the damage must escape to the world outside the occupation and control of the defendant

  • It must be non-natural use of land.

Water collected within the reservoir in such an enormous quantity in Rylands v. Fletcher was held to be non-natural use of land. In order to show that, the use is non-natural, it must be shown that use is some special use bringing with it increased danger to others.

Exceptions to the Rule of Strict Liability

A number of defences to the rule of strict liability too  was developed in this case and some later cases:

  • Escape was owing to the plaintiff’s default
  • Escape was a consequence of vis major
  • Consent of the plaintiff
  • Act of third party
  • Statutory authority

Impact of the case in India

In M. C. Mehta v. Union Of India, the Supreme court took a bold decision holding that it was not bound to follow the 19th-century rule of English law. The honourable Supreme Court said it could evolve a rule suitable to the social and economic conditions prevailing in India at the present day. It evolved the rule of ‘Absolute Liability’ as a  part of Indian law in preference to the rule of Strict Liability laid down in Rylands v. Fletcher. This rule was not subject to any of the exceptions under the rule in Rylands v. Fletcher. The defences to the Rule of Strict Liability can be used by the persons who had established ‘hazardous and inherently dangerous’ industries to escape the liability for the havoc caused, by pleading some exceptions. So to remove that grey area and in order to increase accountability on the part of persons engaged in such kind of activities, the rule of ‘Absolute Liability’ has been evolved in India.

Conclusion

Ryland vs. Fletcher played a great role in deciding owners’ liability when he is bringing any dangerous object in his premises. It was necessary to have a law that could increase the duty of the owner. So that he can be more careful while bringing any dangerous object in his premises. The world is progressing very fast and in this era of industrialization, privatisation and globalization disputes regarding the duty of care are burgeoning rapidly so there was a need for a law that could solve these problems. This was done in this case. In the context of India, this  Rule of strict liability paved the way for ‘The Rule of Absolute Liability’ in India.

References

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