Author: LEXPEEPS editor

ABSTRACT

The article seeks to discuss and elaborate on the crimes committed against women through the lens of the Indian Penal Code.

INTRODUCTION

Indian Penal Code is a comprehensive code that integrates and codifies the criminal law of India. The Code prescribes punishment for offenses committed within India. IPC was basically the brainchild of the English government. The first law commission of India¹, which was established by the Charter Act of 1833, steered the drafting of IPC, under the tutelage of Thomas Macaulay in 1834. The drafting of the code was completed in 1850 and was presented to the Imperial Legislative Council in 1856 which was ultimately enacted by the Imperial Council on 6th October 1860. The Criminal Code was initially enforced only upon selected Indian States. However, after the Independence of India, the ambit of the act was gradually widened and it covered the entire Indian territory except for the State of Jammu and Kashmir, wherein, after the Jammu and Kashmir Reorganization Act 2019, the IPC came into force. The IPC is divided into 23 chapters, spanning 511 exhaustive sections. Each Chapter of IPC deals with a separate category of offense in the most elaborative and fastidious fashion.

Women are the building blocks of any society. They are synonymous with empathy, motherhood, empowerment, and development. However, like the men and children and other sections of society, the women too need the constitutional and legislative safeguard to protect their interests. Women, as a quintessential section of Indian society, have been vulnerable to myriad crimes. The patriarchal mindset of Indian society coupled with inequity and physical fragility, have jeopardized the interests of women.

IPC serves as an effective tool to serve the interests of all the sections of the society, especially the women, and thereby in that furtherance, categorically lays down descriptive code to punish the people for their crimes. It addresses some of the most rudimentary and fundamental issues concerning the safety of women in everyday life in length and breadth.

PROVISIONS OF IPC THAT DEAL WITH CRIME AGAINST WOMEN²

In order to proceed further, it is to be noted that Section 10 of IPC describes ‘women’ as female human beings of any age group.

1. OFFENCES AFFECTING LIFE

• Section 304B of IPC: Dowry Death.
  It prescribes that if the death of a woman is caused within 7 years of marriage due to bodily injury or burns and it could be shown that soon before her death she was subjected to cruelty by her husband or his relative, then such death would be deemed as dowry death and the punishment for the same would be imprisonment for a minimum term of 7 years, which could be extended to imprisonment for life.

2. OFFENCES INVOLVING MISCARRIAGE AND INJURY TO THE UNBORN BABIES

• Section 313:
  Miscarriage without Consent: Causation of miscarriage of a woman without her consent and good faith is punishable with a term of up to 10 years or with a fine, or both
• Section 315:
  Any act done explicitly and not done in good faith, leading to the death of a child after birth or preventing it from being born alive is punishable with a term of up to 10 years and a fine.

3. OFFENCES CAUSING HURT

• 326A: Voluntary Causing Of Hurt With The Use Of Acid
  Voluntary causation of grievous hurt by throwing/administering acid, that leads to permanent or partial deformity/ damage to any body part of the victim is punishable with a minimum term of 10 years which could extend up to life imprisonment and with fine
• 326B: Attempting To Throw Acid
  Any attempt to throw or administer acid to any person leading to permanent or partial deformity of any body part is punishable with a term ranging from 5 to 7 years and with a fine.

4. OFFENCES INVOLVING USE OF CRIMINAL FORCE AND ASSAULT

• Section 354: Outraging Modesty Of Women
  Intentional use of criminal force (assault) to outrage or likely to outrage the modesty of women is punishable with a term not less than 1 year, which may extend up to 5 years, and a fine.
• Section 354A: Sexual Harassment Of Woman
  Sexual harassment of women by physically touching her, making sexually colorable remarks/ expressions, showing pornography against her will, demanding sexual favors is punishable with a term ranging from 1 year to 3 years or fine or both.
• Section 354B: Use Of Force To Disrobe Women
  Use of criminal force to disrobe a woman or compel her to be naked is punishable with a term ranging from years to 7 years or fine or both.
• Section 354C: Punishment For Voyeurism
  To capture an image or watch women engaging in the private act where women would reasonably expect privacy is a punishable offense wherein the offender is liable with a term of up to 3 years of fine or both.
• Section 354D: Punishment For Stalking A Woman
  Stalking a woman by contacting or following her, or attempting to develop personal interaction against the will of the woman, except in cases of discharging legal or public duty, is punishable with a term of up to 3 years and a fine, which may extend up to 5 years.

5. OFFENCES RELATED TO ABDUCTION/KIDNAPPING

• Section 366A and Section 366B
  Both these sections deal with the procuration of a minor girl under the age of 18 years from any part of India or abroad respectively for the purpose of forcing her into illicit intercourse with another person is punishable for a term of up to 10 years and with a fine.
• Section 370
  Trafficking of a person by means of force, fraud, abduction, inducement, threat, or force for the purpose of exploitation of the victim with or without its consent is punishable for a term ranging from 7 years up to life imprisonment along with a fine, depending upon the grievousness of the situation and crime.
• Section 372 and Section 373
  Selling and buying of minors respectively for the purposes of above Sections, under the age of 18 years for the purpose of prostitution is punishable with imprisonment for a term of up to 10 years and fine.

6. OFFENCES INVOLVING SEXUAL CRIMES

• Section 375: Definition Of Rape
  This section defines rape. Rape is committed if a man applies his mouth or penetrates his penis/ any object or into mouth, vagina, urethra, or anus; or manipulates any body part of a woman so as to facilitate penetration against the will of the woman or with her consent by coercing/ putting her under fear/ deceiving her to be her lawful husband or under intoxication or when she is under 18 years of age.
• Section 376: Punishment For Rape
  Rape is punishable with a minimum term of at least 10 years and with a fine that may extend up to life imprisonment. Rape by police officers, public servants, members of armed forces, jail staffs, hospital staff, staff of remand home, persons exercising fiduciary relationship, is punishable with rigorous imprisonment of five to ten years, extending to imprisonment for natural life along with fine.
• Section 376A: Punishment For Rape Resulting In Death
  This Section deals with punishment for causing death or persistently vegetative state of the victim due to rape. The offender will be liable with imprisonment of a minimum of 20 years which shall extend up to life imprisonment or even with death.
• Section 376AB
  Raping a woman under 12 years of age shall result in imprisonment of at least 20 years and with a fine, which may extend up to life imprisonment or with death.
• Section 376B
  Rape by husband upon his wife during the period of the decree of separation shall be punished with a term of at least 2 years, extendable up to 7 years, and with a fine.
• Section 376C
  Rape committed by people in authority, public servants, or by those in a fiduciary relationship, or by management of a hospital or by jail staff, shall be liable to be punished with imprisonment of a minimum of 5 years, which may extend up to 10 years, and with fine.
• Section 376D: Prescribes Punishment For Gangrape
  Rape committed by two or more men acting in furtherance of common intention shall be punishable with imprisonment of not less than 20 years which may extend up to life imprisonment.
• Section 376DA
  Rape of girls under sixteen years of age is punishable with imprisonment of a minimum of twenty years extending to imprisonment for natural life along with a fine.
• Section 376E: Prescribes Punishment For Repeat Offenders
  A person committing rape, who has been previously convicted of rape under Section 376, 376A-D, shall be punishable with imprisonment of life.

8. OFFENCES INVOLVING COMMITMENT OF CRUELTY BY HUSBAND UPON HIS WIFE

• Section 498A
  Cruelty includes the acts of harassment by the husband or his relative that is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb, or health; or any unlawful demand for any property or valuable security. The husband or his relative who subjects such women to cruelty shall be punished with imprisonment for a term which may extend to three years and with a fine.

CONCLUSION

Even in this 21st century, where the technological advancements and the cogent changes in the perception of the moral standards of Indian society have revolutionized our way of life, women continue to be subjected to multitudes of crimes every day. IPC as a criminal code provides the basic framework for legislative penal actions. It serves as a foundation and paves way for the introduction and enactment of specific women-centric legislative pieces to exhaustively address the issues of women and chalk out the way forward.

References:

1. Historical Introduction to IPC (PDF)
2. https://legislative.gov.in/sites/default/files/A1860-45.pdf

This article is written by Riya Ganguly, 2 nd year BBA LLB student at Bharati Vidyapeeth New Law College, Pune.

About the Organiser

Law College Dehradun, faculty of Uttaranchal University, an institution contributing splendidly to legal education since 2002, invites you to the new edition of its annual mooting affair, the 6th Law College Dehradun National Moot Court Competition at Dehradun, Uttarakhand.

The Moot Court Society is a student body assigned with the tasks of successful conduct of the event. It has a constitution which can be accessed at lcdmcs.com

About the Moot

The Constitution of our country is the suprema lex, it is the law to which all laws subscribe and must adhere. Law College Dehradun, faculty of Uttaranchal University National Moot Court Competition is an annually hosted national level moot court competition based on Constitutional Law.

This Competition is considered to be of great repute by the mooting circuits of the country. It is administered by the Moot Court Society of the college. Other than contributing to the field of Constitutional Law, this Competition serves as a channel through which young law students can showcase and hone their advocacy skills.

The first edition of the Competition was won by NUJS, Kolkata; the second by NLU, Jodhpur; the third edition was won by Hidayatullah National Law University; the fourth edition was won by Chanakya National Law University and the fifth edition was won by Christ University.

This year, once again, we welcome participation from the best law schools/colleges/universities of the country, in expectation to chisel out the proficient lawyers and judges of the future.

Dates of the Competition: 7th & 8th May, 2022

Mode of the Competition: The University is determined to organize this competition in Offline mode but in case of any circumstances beyond the control of the University (pandemic) the competition shall be converted into Online/Virtual mode and Rupees 2000/- shall be refunded.

Eligibility

Students of 3/5 year LL.B. degree courses from any institution recognized by B.C.I. and LL.M. students (not enrolled as advocates) are eligible to participate. Provided that only one team may participate per institution.

Location

Dehradun, Uttarakhand

Registration / Submission Procedure

• All registration formalities are to be completed online on the website. To register, visit here.
• Registration of a Team shall be complete when Final Registration is completed along with payment of fees at https://lcdmcs.com/transaction/.

Fee details

INR 5000 is payable as a registration fee. Fees must be paid by online transfer/UPI after confirmation of selection post-Memorial Elimination Round latest by April 23, 2022. (Account Details available at lcdmcs.com).

Prizes

Prizes worth Rs.1 Lac

Important Dates

• Moot Proposition shall be released on March 5, 2022.
• Last Date of Memorial Submission: April 15, 2022
• Result of Memorial Elimination Round: April 20, 2022
• TEAMS MUST SUBMIT THEIR TRAVEL PLAN BY APRIL 23, 2022.

Contact details

• Email Address for all Communications: lcdmcs@uttaranchaluniversity.ac.in
  Prof. (Dr.) Poonam Rawat, Chairperson, Faculty Advisory Board, MCS: hodlaw@uttaranchaluniversity.ac.in
• Student Organisers:
  Rajat Gaur, President, MCS: +91 8077112682
  Shreyanshi Tripathi, Vice-President, MCS: +91 8318506246
  Krishna Rastogi, Joint Convener, NMCC: +91 9721907945

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About the Moot

IILM Law School, Gurugram is delighted to announce the 1st IILM National Moot Court Competition, 2022 that shall allow students to deal with an exceptionally crafted hypothetical case and showcase their argumentative skills.

The event shall be held offline.

Moot Proposition

The moot proposition for the 1st IILM National Moot Court Competition has been crafted with the view of providing a holistic understanding of laws relating to Artificial Intelligence, Constitutional Law and The Indian Penal Code. 

Eligibility and Team Composition

Eligibility: Students pursuing an undergraduate degree (3-year LLB program or a 5-year integrated LLB program)

Team Composition

• Each team shall comprise three members (two speakers and a researcher).
• Two-member teams are strictly ineligible to participate
• Every Institute is allowed to send ONE participating team only.

Mode and Platform

Offline

The details shall be communicated in due course of the competition. 

Registration Process

Each team is required to pay a Sum of Rs.5000 for their registration by clicking here.

Upon payment, the teams are required to send the duly filled registration form along with the screenshot of the proof of payment to iilmlawschool@iilm.edu

Important Dates

Notification of Competition & Release of Moot Proposition	17th February, 2022
Last date of Registration	15th  March, 2022
Last date for seeking Clarifications	20th March, 2022
Release of Clarifications	22nd  March, 2022
Last date for submission of soft copies of Memorials	4th April , 2022
Submission of Hard Copies of Memorials (1 copy each side)	7th April,     2022   (03Copies,        at the Registration Desk)
Last Date for mailing Travel Itineraries	5th April 2022
Inauguration	7th April 2022
Draw of Lots and Exchange of Memorials	7th April, 2022
Preliminary and Quarter Rounds	8th April, 2022
Semi Final & Final Round	9th April, 2022
Valedictory and Prize Distribution	9th April, 2022

Important Links

• Brochure
• Moot Proposition
• Rule Book

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About the Journal

The Journal is a peer-reviewed, bi-annual flagship law journal of the Faculty of Law, Integral University, Lucknow, and is available at www.integrallawreview.org.

The journal promotes intersectional scholarship and has an open admittance. The team accepts manuscripts on the themes related to law or has law as the core argument with an intersection with other academic disciplines such as technology, politics, sciences, public policy, history, management, philosophy, psychology, etc.

Call for Papers

The Integral Law Review (“Journal” hereinafter) is pleased to announce the call for papers for its forthcoming Volume 1 Issue 1, April 2022.

The Journal invites Judges, Academicians, Research Scholars, Lawyers, and Students both of Undergraduate & Postgraduate level, who have an interest in legal scholarship to submit their manuscripts for the Journal.

Exhaustively researched original Academic Articles, Short Essays, Case Comments, Legislative Comments, Book Reviews, and Photo Essays, are accepted.

Submission Categories and Limitations

• Academic Articles: 5000 – 10000 words
• Short Academic Essays: 2500 – 4500 words
• Case Comments: 1500 – 3000 words
• Review of Law and Treaty: 1500 – 3000 words
• Book Reviews: 900 – 1500 words
• Photo Essays: Minimum 10 Pictures with 2000 words supporting text
• Interviews: By Nomination or Invitation

Submission and Formatting Guidelines

• Submission is to be made in electronic form only and must be sent to integrallawreview@gmail.com with the email subject ‘Submission – Integral Law Review’. Co-authorship should be limited to two.
• The manuscript must be submitted with an abstract, which shall not be more than 350 words and should contain a minimum of three keywords.
• The manuscript must be in English only, in Microsoft Word (MS-Word) format, with the font size 12 in Times New Roman with 1.5 line spacing for the main text and size 10 in Times New Roman with single line spacing for footnotes. The author must adhere to the OSCOLA citation format.
• The manuscript must be accompanied by a covering email providing the author’s name and name of the institution/organization. The author shall not include their name or any other identity in the manuscript, in any form.
• Professional writing is encouraged and expect authors to avoid foul or defamatory language.
• No publication/contribution fees is charged at any stage of publication.
• The deadline for submissions for Volume 1 Issue 1 is March 31, 2022.

Review and Publication Policies

The Integral Law Review is a peer-reviewed journal that follows double-blind methods, which means that both the reviewer/editors and the author identities are concealed from the reviewers/editors, and vice versa, throughout the review process. Please follow the link given at the end of this post to access the review and publication policies.

Contact details

For queries regarding submissions, please write to ilr@iul.ac.in, with the email subject ‘Query – Integral Law Review’ or would like to get in touch with the editors write to the Law Review’s Managing Editor at abhiksingh@iul.ac.in or the Chief Student Editor at rraza@iul.ac.in

If anyone wants to nominate a legal luminary for our Interview Section, please write to ilr@iul.ac.in, with the email subject ‘Interview – Integral Law Review’.

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About MRSLR

MR Law Review is a student-run, peer-reviewed initiative which intends to promote critical thinking, research, and writing in a wide array of legal fields, and develop a latitudinarian community of researchers and thinkers who are publishing cutting-edge, high-quality legal reviews devoted to the substantive areas of the law.

Call for Papers

MRSLR or Manav Rachna Students Law Review is inviting submissions by way of a call for papers for its Volume 1 Issue 2 on the topic, ‘Food and Health Laws’.

Theme

The theme for the second issue is “Food and Health Laws” and the sub-topics for this theme are:

• Consumer Laws
• Food and Fitness
• Health and Medicines
• Clinical Trials
• Health Policies
• Medical Laws in India
• Vaccination and Public Medicines
• Violation of Rights of Dead During Pandemic
• Healthcare Management

Eligibility

Professionals, academicians, research scholars, and students are invited to contribute to the publication.

Submission Guidelines

• The submissions can be in the form of research articles, essays, opinions and case commentaries. 
• Word limit for
  • Research Paper: 4000-5000 words
  • Research Articles: 3000 words
  • Case/Legislative/Policies/Book commentaries: 1000-1500 words
  • Essay/Opinions: 1500-2500 words
• Please note: The word limit is illustrative in nature. However, adherence to the word limit shall be highly appreciated.
• There should be an abstract for the submission of the Research Papers only. The same should not be more than 100 words (inclusive of the word limit).
• References should be hyperlinked wherever necessary. In case the cited material does not have an online source or online copy, the citations must adhere to ILI guidelines. There will be strict adherence to the references and the footnoting style herein mentioned.  
• All submissions must be in Times New Roman, font size 12, Spacing 1.5; justified.  
• Footnotes cited in the manuscript should be typed in font Times New Roman with font size 10, line spacing 1′; justified.
• Co-authorship is allowed.
• All entries should be submitted in .docx format ONLY.
• The selected entries will be published in the MR Law Review.
• The entries must be original, unpublished and an outcome of the author’s own efforts. Manav Rachna Students’ Law Review (MRSLR) wishes to provide a platform for the original ideas and content of the authors. Thus, any plagiarized content shall be straight away rejected.
• The authors by submitting their entries would be deemed to have divested the copyright to “MRS’ Law Review.” However, all moral rights shall remain with the author(s). 

How to Submit?

• All the manuscripts must be submitted through the google form. Link for the form. Please keep in mind: 
• The Author(s) must fill in their details very carefully. These details shall be used to prepare the certificates.
• The Author(s) must attach their manuscripts in .docx format. PDF format shall not be considered.
• Any queries can be addressed to the editorial board: mrlawreview@gmail.com

Publication Fee

There is no publication fee at any stage of submission.

Further Communication

• After we receive your manuscript, an auto-generated acknowledgement shall be sent to your mail in 3-4 working days.
• While the focus is on the quality of writing, we usually take 1-1.5 months in communicating the acceptance or rejection of your submission. The time may vary with respect to the submissions received.
• You shall be free to submit your writing elsewhere after that.
• Copy of publication shall be shared with the author(s) within one week of publication along with the Certificate in digital format

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About SLSA of MP

The Legal Services Authorities Act, 1987, is aimed to provide free and competent Legal Services to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities and to organize Lok Adalats to secure that the operation of the legal system promotes justice on a basis equal opportunity.

Creating legal awareness, legal aid, and settlement of disputes through amicable settlement are the main functions of the Authority.

About the Internship

The Programme would be a 3 weeks programme.

The interns would be required to spend internship with the M.P. State Legal Services Authority Jabalpur or District Legal Services Authority of their choice, be it their home district or district in which their law college falls or any other district of their choice.

Responsibilities of the Intern

• Visit a Central Jail or Sub Jail for one day in the District;
• Visit an Observation Home/Juvenile Justice Board for one day;
• Visit Child Welfare Committee and Children’s Home for one day;
• Visit a home for senior citizens for one day;
• Visit a Mental health Establishment/drug de-addiction centre for one day;
• Visit the District Courts including Magisterial, Sessions and Civil Courts for one day;
• Attend a legal literacy/legal awareness programme in the district for one or two days;
• Watch the mediation proceedings at Mediation/ADR centre and LokAdalat/Permanent LokAdalat for one day;
• Visit a legal literacy club in a school/legal services clinic in a college and/or in community, etc. for one day.
• Spend the remaining days in the office of the MP State Legal Services Authority Jabalpur or District Legal Services Authority for observing the working of Front office and other activities of SLSA/DLSA.

The interns would be required to make their own boarding and lodging arrangements as well as for local travel both within the district to which they are attached for the internship.

Certificate

At the end of the internship programme, certificates would be distributed to the law interns who successfully complete the programme and submit a report regarding internship.

Contact details

• Address: 574, South Civil lines, Jabalapur (Pachpedi)
• Phone number: 0761-2678352,2624131
• Fax-0761-2678352
• Email: mplsajab@nic.in

Important links

Link to apply- http://117.239.39.53/docs/other_files/Internship_Application_Form.pdf

Link for more details- http://www.mpslsa.gov.in/?q=node/59

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About the Chamber

The office regularly deals with cases in the Supreme Court of India, High Court of Delhi, and several Tribunals/Commissions.

About the Job Opportunity

An Advocate-on-Record in the Supreme Court of India is looking to hire a junior Advocate.

Nature of Job

The Advocate is to assist in the cases, appearances before the Courts/tribunals, drafting and office works. He should have good communication & interpersonal skills, knowledge of drafting and command over English language and acceptable research abilities.

Eligibility

• 0-2 years of post-qualification experience.
• The candidate should have a willingness to work hard and over long hours.
• Those who are in the process of getting enrolled in the immediate future.

Number of Advocates Required

01 (One)

Location

Noida

Salary

As per industry standards subject to qualifications, experience, and skills.

Procedure to apply

Interested candidates may send their updated resumes/CVs with a covering letter to recruitmentsmoffices@gmail.com at the earliest.

Contact Detail

Email: recruitmentsmoffices@gmail.com

Address: Unit No. 1117, 11th Floor, Ithum (Tower A)
A-40, Sector 62
Noida-201301 (UP)
Tel: +91-120-4504226

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Practice Areas

Dispute Resolution, Corporate and Civil Litigation, Insolvency and Bankruptcy Laws

Location

South Extension, Delhi

Eligibility

Law graduates from 2019 and 2020 batches.

Procedure to apply

Email your resumes to: contact@vipulganda.com.

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Equivalent Citation

[1992 SCR (1) 686, 1992 SCC Supl. (2) 651]

Bench

By Hon’ble Justice Sharma, L.M.,
By Hon’ble Justice Venkatachalliah, M.N.,
By Hon’ble Justice Verma, Jagdish Saran,
By Hon’ble Justice Reddy, K. Jayachandra and
By Hon’ble Justice Agrawal, S.C

Date of Judgment

February 18, 1992

Provisions Involved

Articles 102(2), Article 122(1), Article212(1), Article 368 of Constitution of India

Introduction

A constitution is a written document that contains rules, laws, and regulations for the government of a country. The Indian Constitution is regarded as the country’s supreme or “grundnorm” law. Its preamble speaks of people’s sovereignty, democratic polity, justice, liberty, equality, and brotherhood, all of which ensure the individual’s dignity as well as the nation’s unity and integrity. The Preamble is based on Nehru’s beliefs, which constituted the foundation for the constitution’s construction After the constitution was created, it didn’t take long for political insiders to convince Indian framers. Following Nehru’s death, India experienced a decline in political morals and an unpleasant increase in political corruption. The disorderly floor-crossing was a blow to the electoral system and weakened the government’s three organs. Parliament passed the Constitution (Fifty-Second Amendment) Act in early 1985, making defections illegal.

Factual Observations

The constitutional legitimacy of the Tenth Schedule established by the Constitution (Fifty-Second Amendment) Act, 1985, was challenged in the case of Kihota Hollohon v. Zachilhu and Ors. Writ Petitions, Transfer Petitions, Civil Appeals, Special Leave Petitions, and other proceedings presenting common questions were all heard jointly, bringing the petitioners together. The Constitution (Fifty-second Amendment) Act substituted the tenth schedule for four articles of the Constitution, namely 101(3)(a), 102(2), 190(3)(a), and 191(2). In a 3:2 judgment in the case, the Hon’ble Supreme Court upheld the constitutional legitimacy of the Anti-Defection Law. Justices M.N. Venkatachaliah, K.J. Reddy, and S.C. Agrawal made up the majority, while Justices L.M. Sharma and J.S. Verma made up the minority. Simultaneously, the Supreme Court ruled that the speaker’s directives under the law barring an MLA from serving because of defection are subject to judicial review.

Issues Raised

1. Whether the changes made by the 52nd amendment are legally acceptable?
2. Whether the additions made by the 52nd amendment have constitutional validity?

Applicability of Doctrine of Severability

As stated in the definition itself, the doctrine of severability can be applied to a composite amendment that contains amendments that do not require ratification by States as well as amendments that do require such ratification, and the amendment can be upheld in respect of the amendments that do not require ratification and are within the competence of Parliament alone by applying the doctrine of severability. Only the revisions to the proviso’s provisions that require approval must be struck down or declared illegal. The severability test asks the Court to determine whether the legislature would have adopted the legislation at all if the severed element was not a part of it, and if what remains after severance can stand alone and is functional.

The doctrine of severability applies when a piece of otherwise lawful legislation contains a provision that is invalid due to a lack of legislative competence, and the invalid section is severable, leaving the remaining valid provisions intact. This theory does not apply where legislation is invalidly enacted because of non-compliance with a mandatory legislative procedure, such as the mandatory special procedure for exercising constituent power. The theory does not apply to legislation that has not yet been enacted. Even if it may be feasible to keep a stillborn alive by surgical skillfully removing a congenitally faulty portion, it is not possible to infuse life into a stillborn referred in The Bribery Commissioner v. Pedrick Ranasinghe¹.

Laws/Provisions Involved

Schedule 10
The first paragraph begins with definitions, the second with disqualifications, the third with divisions within the party (now deleted by the 2003 amendment to the constitution), the fourth with a few disqualifications that do not apply just in mergers, and the fifth with some exemptions. The sixth and seventh paragraphs state who will resolve disputes and restrict courts from hearing concerns about a member’s disqualification, and finally, the last paragraph allows a speaker to make rules for a House to give effect to the provisions of the Schedule.

Most of these provisions are subject to adjudication and interpretation by the courts of the land. Paragraph 2, which outlines a member’s disqualifications, is perhaps the one provision that has been scrutinized by the courts.

Ratio Decidendi

People’s lifestyles shape the law’s profile, not the other way around. A finality clause is not a magical legislative incantation that prevents Judicial Review from proceeding. A decision’s statutory finality assumes and is dependent on its adherence to the law. The scope of judicial review under Articles 136, 226, and 227 of the Constitution in relation to an order made by the Speaker/Chairman under would be limited to jurisdictional errors, such as infirmities based on constitutional mandate violations, mala fides, non-compliance with natural justice rules, and perversity. The courts follow the notion that, notwithstanding a finality provision, it is open to the court to determine whether the action of the challenged authority is ultra vires the powers conferred on it. An action can be ultra vires if it is carried out in violation of a mandatory provision of the law granting the authority the ability to do so. If the authority’s powers are vitiated by mala fides or a colorable use of power based on extraneous and irrelevant considerations, it will be supra vires.

Case Law Referred

Eight sections of the Bombay Prohibition Act, 1949 were found illegal by the court in State of Bombay v. F.N. Balsara² on the grounds that they were in violation of certain constitutional provisions and essential freedoms. The Supreme Court ruled that the sections of the law that were declared unconstitutional were valid because they were not inextricably linked with the remainder of the Act, they were severable from the rest of it. It was one thing to say that the Legislature would not have enacted the Act, but it was another to say that the Legislature would not have enacted it. It would be impossible to pass the Act without adding the elements that were judged to be illegal.

Likewise, the Supreme Court stated in A.K. Gopalan v. the State of Madras³ that if a law is unconstitutional, just the part that is unconstitutional will be declared void, not the entire law, and every effort should be made to save as much of it as possible. If the invalid part’s omission has no effect on the character or structure of the document, it will be considered a severable legislative object.

Judgment

The minority judges held that the Constitution was violated because the Constitutional scheme for deciding on questions of disqualification of members after being duly elected contemplates adjudication of such disputes by an independent authority outside the House, namely the President or Governor, in accordance with the opinion of the committee, all of whom are high Constitutional functionaries.

The Election Commission came to the same conclusion as the minority judges in this instance. It issued suggestions in 1977, recommending that disqualification for defection be referred to the Election Commission for an opinion to be given to the President or Governor, because the matter might potentially be, and as with other disqualifications alluded to in Articles 102 and 191 of the constitution, the President or the Governor will act on the Election Commission’s recommendation.

As a result, it was determined that paragraph 6 of the Tenth Schedule did not create a non-justiciable territory. The Speaker/power Chairman’s to resolve disagreements could be considered judicial. The ‘finality clause,’ which prepared the way for the majority to prevail in the verdict, is an important construction.

Own Analysis/Opinion

The Anti-Defection Law was enacted to counteract the “evil of political defections.” However, the phrase “voluntarily giving up membership in a political party” must be defined more clearly. The President/Governor should make agreements under the Tenth Schedule based on the Election Commission’s binding advice. Disqualification should be limited to situations in which a member voluntarily resigns from his political party, abstains from voting, or votes against the party whip in a confidence/non-confidence vote.

The law that has prevented individual defections must now be used to prevent mass defections. It’s also necessary to challenge the speaker’s function. For his tenure, the speaker is reliant on the support of the legislature’s majority. As a result, he does not meet the criteria for an ‘individual adjudicatory body.’ It is not practical to repeal the Anti-defection law completely, but the long-term solution is to keep a check on political culture, and legislators who act in contempt or with mala fide intent should be voted out in subsequent elections, as the ultimate agency in the world’s largest democracy rests with the Indian people. That’s why the doctrine of severability has made it easy to combat with kind of issues and help in avoiding any kind of misuse of arbitrary powers.

The president of the parliament, and the governor of the state legislature, may report the subject to the Election Commission under Articles 102 and 192, respectively. This appears to be the only way to avoid the speakers’ political biases in their judgments. If the government wishes to keep the current arrangement, the Supreme Court will have to exercise far more judicial review power over the Speaker’s decision under the Anti-defection law than the Supreme Court is willing to do now under the Kihota Hollohon case.

Concluding Observations

After analyzing the situation in the instant case, it can be concluded that the concerns of construction and severability are distinct because, where more than one reasonable interpretation is available, one upholding the legitimacy of the legislation and the other invalidating it, the former would be accepted, and in the situation that both are possible, the former would be accepted.

If this isn’t practicable, the court has no choice but to decide whether the entire statute should be repealed, stricken down, or the excellent and bad elements can be separated. Also, the Separation of valid and invalid provisions of a statute is not determined by whether the law is enacted in the same section or in distinct parts; what matters is the substance of the matter, which must be determined through a thorough examination of the Act as a whole, as well as the enactment of the applicable provisions. Despite its relative obscurity, the philosophy has far-reaching implications. On the one hand, rejecting entire legislation for one erroneous provision is the most invasive remedy; on the other hand, the Supreme Court is hesitant about amending statutes by removing portions of them. Prior to the passage of the Tenth Schedule, there was no such thing as a “political party” under the Constitution, but their existence is now acknowledged under the Anti-defection Act.

Citations:

1. [1965] AC 172
2. AIR 1951 SC 318.
3. AIR 1950 SC 27.

Analysis by Hemant Bohra student at School of Law, Lovely Professional University, Punjab.

About the Organiser

DES Shri. NavalmalFirodia Law College (DES SNFLC) has the distinct advantage of having a unique heritage of the Deccan Education Society, and we intend to fiercely guard and cherish it.

Eligibility

Students pursuing the 3-year LL.B. course or the 5-year integrated law course from any recognized law school/college/university within India in the academic year 2021- 22 shall be eligible to participate.

Registration and Fees

• A scanned copy of a duly filled Registration Form must be sent via e-mail to desmcs2019@gmail.com and a hard copy of the same must be posted to the following postal address: DES’s Shri Navalmal Firodia Law College, Gate No. 3, Fergusson College Campus, Fergusson College Road, Pune– 411 004.
• Only one team is allowed to participate on behalf of any recognised law school/college/university. In the event that more than one team registers on behalf of one law school/college/university, the team which submits a letter from the Dean/Head or the authorised signatory thereof of the concerned institution shall be registered for the competition on behalf of that particular institution.

Registration Fee

Registration fees of Rs. 2500/- (Rupees two thousand five hundred inclusive of GST only) is to be paid by every participating team, by NEFT drawn in favour of “D.E.S’s Navalmal Firodia Law College”, Payable at Pune and the payment shall reach by 23rd March, 2022.

Team Composition

• Every team shall consist either of three members (two speakers and one researcher) or four members (two speakers and two researchers)
• Only the speakers shall be allowed to address the judges in their rounds. The researchers may speak only at the discretion of the judges. In any case, it is hereby clarified that Researcher no.2 in no circumstances shall be eligible to address the bench.
• The above-mentioned registration fee does not include the cost for travelling/food services for such fourth member.

Prizes

The following prizes along with their rewards form part of the competition:

• Winning Team – Cash Prize of ₹10,000/-, and E-Certificates.
• Runners-up Team – Cash Prize of ₹ 8,000/-, and E-Certificates.
• Best Advocate – Cash Prize of ₹ 4,000/-, and E-Certificates.
• Best Memorial – Cash Prize of ₹ 4,000/-, and E-Certificates.

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Contact details

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• Mr. Atharva Golwalkar: 8484912627
• Mr. Shubhankar Malegaonkar: 9922728615
• Mr. Kayomard Irani: 9850302417
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• Miss. Tanaya Kulkarni: 8007360972

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