Introduction

India has witnessed many large outbreaks of emerging and re-emerging infectious diseases in the recent past. The outbreak of a cholera epidemic due to the O139 strain in 1992, that of plague in Surat in 1994, the large-scale spread of chikungunya and dengue fever, and that of avian influenza (H5N1) and pandemic H1N1 influenza were some which caused widespread havoc. The resurgence of diphtheria and the outbreaks caused by the Nipah, Chandipura, and Japanese encephalitis viruses and Crimean–Congo hemorrhagic fever also posed a threat to the country’s public health in the last decade. The emergence of drug-resistant tuberculosis and malaria and New Delhi Metallo-beta-lactamase (NDM-1) – resistant organisms is also a matter of concern for the country. As in any other country, diseases with the potential for international spread, such as the Ebola virus disease and Zika virus, also pose threats to the public health security of India.

Legal frameworks are important during emergency situations as they can delineate the scope of the government’s responses to public health emergencies and also, the duties and rights of citizens. In recent years, many states in India have invoked various provisions of the Epidemic Diseases Act of 1897 to force H1N1-affected persons to be segregated and get themselves treated at recognized hospitals, to direct private hospitals to set up isolation treatment facilities, and to notify cases of dengue and H1N1 (2, 3, 4). In this context, it is important to critically evaluate the Epidemic Diseases Act of 1897, its relevance in the current context, and whether it has kept up with the recent global developments in disease surveillance, disease control, and rights perspective.

This review attempts to describe the Act, its historical aspects, and key elements, the current status of the Act. Further, it aims to identify its limitations and lacunae and describe disease surveillance and response in the country. Finally, it sets out to examine key legislations and the sections of these which are relevant for updating Acts or reforms in this area and for proposing recommendations.

Background

The Epidemic illnesses Act changed into enforced in 1897 to cope with the plague epidemic that broke out within the presidency city of Bombay. The act changed into enacted for higher prevention of epidemic diseases consisting of Cholera, Plague, and many others. The plague took thousands and thousands of lives and the British authorities have been tasked with the difficult process of containing the ailment to spread in addition, so the local government was given special powers through the then governor widespread Victor Bruce to take actions which will manage the epidemic.

The result turned into that the chairman Bombay Plague committee Brigadier preferred W.F. Gamache together with different individuals made a regulation towards folks who had been fleeing from their municipal limits with a view to save you the disease from spreading within the complete British colony. The century-old law has once more come into use for stopping the spread of COVID 19.

Legal Provisions

Electricity to take unique measures and prescribe guidelines as to dangerous epidemic disorder

while at any time the [State Government] is happy that [the State] or any element thereof is visited by means of, or threatened with, a deadly disease of any risky epidemic disease, the [State Government], if [it] thinks that the regular provisions of the regulation in the meanwhile in pressure are inadequate for the cause, may additionally take, or require or empower any character to take, such measures and, via a public notice, prescribe such brief guidelines be discovered by means of the general public or by using any man or woman or elegance of humans as [it] shall deem necessary to save you the outbreak of such disorder or the spread thereof, and may decide in what way and by whom any prices incurred (which includes repayment if any) will be defrayed.

Powers of significant government

While the principal government is satisfied that India or any element thereof is visited by way of, or threatened with, an outbreak of any risky epidemic ailment and that the ordinary provisions of the law in the meantime in force are insufficient to prevent the outbreak of such sickness or the spread thereof, the relevant government may take measures and prescribe policies for the inspection of any deliver or vessel leaving or arriving at any port and for such detention thereof, or of any person proceeding to sail therein, or arriving thereby, as can be important.

Three.

Penalty.

Any individual disobeying any regulation or order made beneath this Act will be deemed to have devoted an offense punishable underneath section 188 of the Indian Penal Code (forty-five of 1860).

Four. Safety to folks acting under Act.

No healthy or other prisons intending shall lie in opposition to any individual for something achieved or in properly faith intended to be accomplished underneath this Act.

Amendment of the Law

Recently, in many locations in India the fitness care workers had been attacked by means of many perpetrators. After such acts of attacks on corona warriors, the principal authorities introduced an ordinance on twenty-second April to amend the Epidemic illnesses Act 1897 and to punish such perpetrators who attacked the warriors. This flow of presidency is indeed welcomed and is praiseworthy.

The government which will defend corona warriors, health workers, and their property permitted the promulgation of an ordinance on twenty-second April to amend the Epidemic illnesses Act 1897. The change makes acts of violence, in opposition to medical experts and a different scientific group of workers) as a cognizable and non-bailable offense.

Now fee of offense in opposition to medical examiners will be punished with imprisonment of the time period for three months to five years and with quality of fifty thousand Rupees to 20 thousand Rupees. In case, grievous harm is caused then the imprisonment will be for the term of 6 months to 7 years and with nice of one lac to five lakhs. Furthermore, the culprit may also pay an amount as a reimbursement to the sufferer, and double the marketplace rate will be charged for the healing of damaged finished to the assets of the sufferer.

Limitations to the Act

His archaic act became promulgated 123 years ago. In this era of changing priorities, the act suffers from many boundaries. Firstly, the definition of dangerous epidemic sickness isn’t always given in the act. Moreover, the criteria to decide whether a disorder is risky or not is also now not given. It can not be said that whether or not the definition of dangerous is based totally on the magnitude of the population affected, the seriousness of the problem, or the good-sized of the sickness.

Secondly, the act is merely regulatory in nature and focuses handiest on the powers of government. The act does now not describe the responsibilities of the government and the rights of residents. No provision of the act concentrates on pastimes, desires, needs, healthful life-style of people. Additionally, the act does not provide the situations underneath which liberty and privateness of humans can be compromised, for this reason, there are probabilities of misuse of the act. Thirdly, the act can be said to be only a file on paper.

The act affords the most effective quarantine measures and does no longer provide scientific measures that can be taken to save you the spread of the disease. Fourthly, the act says any individual may be empowered to take some degree but in present days we’ve higher health care structures. Incorporated disorder Surveillance devices (IDSP), District leader scientific officers, every district with a surveillance unit, and a fast response group (RRT), area people, various fitness care clinical officials had been assigned the challenge for the care of the fitness machine. Hence the act saying any character makes no feel. It has to specify who and what. Fifthly, the act wishes some adjustments in the context of the present situation.

Conclusion

There is a want to bolster felony frameworks to prevent and manage the access, spread, and existence of communicable illnesses in India. The Epidemic illnesses Act 1897, which is extra than a century antique, has the most important limitations in relation to tackling the emergence and re-emergence of communicable illnesses inside us of a, especially inside the changing public health context. Over the years, many states have formulated their own public fitness laws and a few have amended the provisions of their epidemic ailment Acts. However, these Acts vary in excellent and content material. There may be a want for an incorporated, complete, actionable, and applicable legal provision for the control of outbreaks in India that should be articulated in a rights-based, people-focused, and public fitness-orientated way. The draft countrywide health bill 2009 is one such proposed legislation, but it’s miles still in its long gestation length and its fate is unpredictable.

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Case Number

S.L.P (Cr.) No. 1361 of 1989

CRIMINAL APPEAL NO. 1184 OF 1995

Equivalent Citation

1996 AIR 309, 1995 SCC (6) 194

Decided On

12 October 1995

Relevant Act

Sections 341, 342, 352, 354, and 509 of the Indian Penal Code

Sections 123/124 of the Evidence Act

Section 210, 482of Code of Criminal Procedure

Abstract

RD Bajaj V. K.P.S. Gill is a well known “Butt Slapping Case” and was one of the most criticized and recognized cases. Mrs. Rupan Deol Bajaj, an officer of the Indian Administrative Services (I.A.S.) member of the Punjab Cadre, employed as the Special Secretary Finance, complained with the Inspector General of Police, Chandigarh Union Territory. The complaint was alleging the commission of offenses under Sections 341, 342, 352, 354, and 509 of the Indian Penal Code by Mr. K.P.S. Gill, the Director-General of Police, Punjab, towards her on 18 July 1988 at a dinner party. The last verdict came in 2005, which ultimately reduce the punishment to probation. An opinion can be formed from the case about the lenient and humane judicial procedure towards society’s high elites.

Brief Facts and Procedural Facts

Around 10 PM on the said night, Dr. Chutani and Mr. Gill walked across the garden and sat within the ladies’ circle.
Bajaj, who was having a conversation with Mrs. Bijlani and Mrs. Bhandari at the time, was requested by Mr. Gill to take a seat next to him as he wanted to speak to her about something.
Responding to his such request when Mrs. Bajaj went to sit in a chair next to him, Mr. Gill suddenly pulled that chair close to his chair.
Bajaj was a bit stunned when she put that chair at its original place and was about to sit down, and Mr. Gill again pulled his chair closer.
Realising something was wrong, she immediately left the place and went back to sit with the women.
After about 10 minutes, Shri Gill came and stood in front of her. He was so close that his legs were about 4 inches from her knees.
He then, by action with the crook of his finger, asked her to “get up immediately” and come along with him.
When she strongly objected to his behavior and asked him to go away from there, he repeated his last command that shocked the ladies present.
Being apprehensive and frightened, she tried to leave the place but could not as he had blocked her way.
Finding no other alternative when she drew her chair back and turned backward, he slapped her on the posterior in the full presence of the ladies and guests.

This analysis is written by Pooja Lakshmi (l19blb076@bennett.edu.in), studying BBA-LLB at Bennett University, Greater Noida. Handling the complaint filed by Mrs. Bajaj as the First Information Report (F.I.R.), a case was recorded by the Central Police Station, Chandigarh, under Section 17, and an inspection was taken up. After that, her husband, Mr. B.R. Bajaj, who also happens to be a senior I.A.S. officer of the Punjab Cadre, on 22 November 1988, lodged a complaint in the Court of the Chief Judicial Magistrate for the same wrongdoing. Alleging, among the other things, Mr. Gill is a high-ranking police officer. The Chandigarh Police had neither arrested him in association with the police’s case on his wife’s complaint nor conducted an investigation fairly and impartially. And apprehending that the police would decide the investigation by treating the case as untraced; he was filing the complaint.

On receipt of the complaint, the Chief Judicial Magistrate transferred it to a Judicial Magistrate for disposal. Later insight into the fact that the Police’s investigation was ongoing about equivalent offenses called for a report from the Investigating Officer under Section 210 of the Code of Criminal Procedure. Within the meantime – on 16 December 1988 to be precise – Mr. Gill moved to the high court by filing a petition under Section 482 Cr. P.C. for quashing the F.I.R. and the complaint. On the petition, an interim order was passed, staying the investigation into the F.I.R lodged by Mrs. Bajaj, but not the proceedings initiated on Mr. Bajaj’s complaint.

Resultantly, the learned Judicial Magistrate proceeded with the complaint case and examined the complainant and, therefore, the witnesses produced by him. After that, Mr. Bajaj moved an application before the learned Magistrate for summoning Mr. Y.S. Ratra, an I.A.S. Officer of the govt of Punjab, and Mr. J.F. Rebeiro, Adviser to the Governor of Punjab for being examined as witnesses on his behalf and for producing certain documents, which was allowed. Rather than appearing personally, the above two Officers sought exemption from appearance. Therefore, after producing the documents, the district attorney filed an application claiming privilege under Sections 123/124 of the Evidence Act in respect of them.

The learned Magistrate refused the prayer of the above two officers and also rejected, after going through the documents, the claim of privilege, believing that the documents did not concern the affairs of the State.

Assailing the order of the learned Magistrate rejecting the claim of privilege, the State of Punjab filed a Criminal Revision Petition, allowed by the High Court by its order dated 24 January 1989. The petition earlier filed by Mr. Gill under Section 482 Cr. P.C. came up for hearing before the High Court and was allowed by its order dated 29 May 1989, and both the F.I.R. and the complaint were canceled. The above two orders of the High Court are under challenge in these appeals at the instance of Mr. and Mrs. Bajaj.

Issue before the court

Whether the allegations constitute any of the offenses mentioned?

Facts of the Case

1. Rupal Deol Bajaj was an I.A.S. Officer belonging to Punjab Cadre. She lodged an FlR against Mr.KPS Gill, the Director-General of Police u/s 341,342.352,354 and 509 of I.P.C.

2. On the said date, in the party of K.P.S. Gill, the accused, around 10.pm, walked across a group of ladies and joined them. After some time, some of the ladies started leaving and going into the house. The victim did not notice that Mr.KPS Gill was misbehaving with them.

3. K.P.S. Gill then called the victim to talk about something. On realization by the victim about the awkward behavior of Gill, she avoided going.

4. After a while, Gill reached out to her amongst other ladies who were sitting together. He offensively ordered her to get up and come along. She resisted and turned back and started leaving when he slapped her back.

Ratio of Case

While considering whether allegations constitute any offenses for which case was registered, the court first looked at S. 354 and S. 509, I.P.C., that relates to women’s modesty.
Since the word modesty had not been defined in the code, they considered various dictionaries such as the Shorter Oxford English Dictionary (third edition), Webster’s Third New International Dictionary of the English language Oxford English dictionary (1933 Edition).
The division bench also considered the judgment given in the State of Punjab v. Major Singh, where it held that when an act was done to, or in the presence of a woman is suggestive of sex, according to the common notions of humankind that must fall within the mischief of Section 354. The other learned Judge citing his view concerning the case referred above, stated that the essence of a woman’s modesty is her sex. From her very birth, she possesses humility, which is the attribute of her sex.

When the Hon’ble Court applied the test in the present case, keeping in view the total fact situation, it cannot but be held that Mr. Gill’s alleged act in slapping Mrs. Bajaj on her posterior amounted to `outraging of her modesty.’ Therefore, it was not only an insult to the usual sense of feminine decency but also an affront to the dignity of the lady – “sexual overtones” or not, notwithstanding.

It was however strenuously urged by Mr. Tulsi that even if it was assumed that Mr. Gill had outraged the modesty of Mrs. Bajaj, still no offense under Section 354 IPC could be said to have been committed by him for the other ingredient of the offense, namely the intension to do so was lacking. He urged that the culpable intention of the offender in committing the act is the crux of the matter and not the consequences thereof.

This court took the view that it is undoubtedly correct that if intention or knowledge is one of the ingredients of any offense, it has to be proved like other ingredients for convicting a person. However, it is also equally valid that those ingredients being states of mind may not be verified by direct evidence and may have to be inferred from the present circumstances of a given case.

In the instant case, we are only at the incipient stage that we have to ascertain, only prima facie, whether Mr. Gill by slapping Mrs. Bajaj on her posterior, in the background detailed by her in the F.I.R., intended to outrage or knew it to be likely that he would thereby outrage her modesty, which is one of the essential ingredients of Section 354, I.P.C. The sequence of events that we have detailed earlier indicates that the slapping was the finale to Mr. Gill’s earlier overtures, which, considered together, persuade us to hold that he had the requisite culpable intention.

The court then considered the applicability of S. 341,342 and 352 of IPC. The court held that nothing in the FIR or the facts of the case pointed towards a situation of Wrongful restraint or Wrongful confinement. Mr. Gill’s mere act of standing in front of Mrs. Bajaj cannot be said to be wrongful restraint.
The court next considered the applicability of S.95, IPC, which talks about the act of causing slight harm. After considering the principles laid down by the court in Veeda Menezes v. Yusuf Khan, the court observed that S. 95 of the IPC has no application in the present case.

Talking about the High Court’s decision, the court held that the settled principle of law that at the stage of quashing an FIR or complaint, the High Court is not justified in embarking upon an inquiry as to the probability, reliability, or genuineness of the allegations made therein, an FIR or a complaint may be quashed if the allegations made therein are so absurd and inherently improbable that no prudent person can ever conclude that there is sufficient ground for proceeding against the accused but the High Court has not recorded such a finding, obviously because on the allegations in the FIR. It was not possible to do so. The Supreme Court held that the High Court had committed a gross error of law in quashing the FIR and the complaint. Accordingly, it set aside the impugned judgment and dismissed the petition filed by Mr. Gill in the High Court under Section 482 Cr.P.C.

Decision of the Court

Trial and sentencing. In 2005, the Supreme Court of India upheld the charges and conviction of K.P.S. Gill for the offense. He was spared from undergoing the three-month jail sentence as it was converted into probation by Punjab and Haryana High Court.

Judgement

1. In 1998 the High Court of Punjab and Haryana booked Gill u/S 354, i.e., outraging the modesty of women and u/s 509, i.e., an act, word, or gesture intended to insult a lady.

2. Mr. Gill was sentenced for rigorous imprisonment for three months and simple imprisonment for two months along with a fine of Rs. 200000.

3. Appeals were made into the Supreme Court of India, wherein the punishment was turned into probation in 2005.

The court directed the learned Chief Judicial Magistrate, Chandigarh, to take cognizance upon the police report regarding the offenses under Sections 354 and 509 IPC and try the case himself as per law.

They made it abundantly clear that the learned Magistrate should not in any way be influenced by any of the observations made by them relating to the facts of the case as their task was confined to the question whether a `prima facie case’ to go to the trial was made out or not. In contrast, the learned Magistrate will have to dispose of the case solely based on the evidence to be adduced during the trial. Since both the offenses under Sections 354 and 509 IPC are trailable under Chapter XX of the Criminal Procedure Code, the court directed the learned Magistrate to dispose of the case as expeditiously as possible.

Comments

I.A.S. officer Rupan Deol Bajaj is delighted after 30 years. Her 17.5 year-long struggle to punish the powerful man who sexually harassed her is resonating in the stories flooding social media. As the #MeToo storm rages across the country, provoking anger and outrage, and also for the first time a creeping fear in the hearts of serial sexual predators who operated till now with carefree impunity, one woman can watch the developments with quiet satisfaction.

When Rupan Deol Bajaj called out the behavior of Mr. Gill, she stood all alone, threatened with death, slander, given punishment postings and Bajaj said a blighted career in an interview with The Wire

Rupan Deol Bajaj secured a conviction under the archaic Sections 354 and 509 of the Indian Penal Code; the two sections under which no one had ever filed a case since 1860 when the British first drafted the I.P.C.

They are an affront to the dignity and honour of a woman and can traumatize her for life. Actions that fall under Sections 354 and 509 of the IPC are universal to the extent that almost all women experience it five or six times in their lives. Section 509 deals with words, gestures, or actions intended to insult a woman’s modesty, and section 354 deals with assault or criminal force to outrage the modesty of a woman. These are a set of provisions different from physical assault, but which deal with crimes only against women as there is an element of modesty involved. All those men who think that unwanted lewd gestures or talking dirty are not offenses need to worry.

It took her another seven years to get the direction from SC to prosecute Gill. Even Rupan Deol Bajaj’s highly educated mother dissuaded her from registering an FIR, and she was asked to cry over it privately and move on with the guilt and fear.

Rupan Deol Bajaj was an empowered woman, but the system and society were conspiring to disempower her. It is hoped that today’s girls get justice as fast as possible.

Firstly, the court has defined ‘modesty’ for the first time in this case as it applies to these two sections of IPC. Secondly, the court has laid down that to prove such matters, one witness is enough, and the victim herself is the best witness, as long as she is truthful. Thirdly, in every crime, the prosecution has to prove the intention of the accused. Nevertheless, here it was held that there is no need to prove intention, but just his knowledge of having acted indecently is sufficient to prosecute a person. Fourthly, the court set a time limit of six months to complete the trial, to ensure that the victim is not deliberately tired out in long-drawn litigation. The difference now is that none of these women need to take the men to court. They dare to speak on social media is enough for everyone to believe them. It is the most critical validation of the truth. If the accused man goes to court, then the case precedent gives them ample ammunition to fight it there.

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Introduction

“All mankind… being all equal and independent, no one ought to harm another in his life, health, liberty or possessions” –John Locke

The essence of free speech is the ability to think and speak freely and to obtain information from others through publications and public discourse without fear of retribution, restriction, or repression by the government. It is through free speech, people could come together to achieve political influence, to strengthen their morality, and to help others to become moral and enlightened citizens.

Freedom of speech is regarded as the first condition of liberty. It occupies a preferred and important position in the hierarchy of liberty, it is truly said about the freedom of speech that it is the mother of all other liberties.

Freedom of Speech and expression means the right to express one’s convictions and opinions freely by words of mouth, writing, printing, pictures, or any other mode. In modern times it is widely accepted that the right to freedom of speech is the essence of a free society and it must be safeguarded at all times. The first principle of a free society is an untrammeled flow of words in an open forum. Liberty to express opinions and ideas without hindrance, and especially without fear of punishment plays a significant role in the development of that particular society and ultimately for that state. It is one of the most important fundamental liberties guaranteed against state suppression or regulation.

Freedom of Speech and Expression- Meaning & Scope

Article 19(1)(a) of the Constitution of India guarantees to all its citizens the right to freedom of speech and expression. The law states that “all citizens shall have the right to freedom of speech and expression”. Under Article 19(2) “reasonable restrictions can be imposed on the exercise of this right for certain purposes. Any limitation on the exercise of the right under Article 19(1)(a) not falling within the four corners of Article 19(2) cannot be valid.

The freedom of speech under Article 19(1)(a) includes the right to express one’s views and opinions at any issue through any medium, e.g. by word of mouth, writing, printing, picture, film, movie, etc. It thus includes the freedom of communication and the right to propagate or publish an opinion. But this right is subject to reasonable restrictions being imposed under Article 19(2). Free expression cannot be equated or confused with a license to make unfounded and irresponsible allegations against the judiciary.

It is important to note that a restriction on the freedom of speech of any citizen may be placed as much by an action of the State as by its inaction. Thus, failure on the part of the State to guarantee to all its citizens irrespective of their circumstances and the class to which they belong, the fundamental right to freedom of speech and expression would constitute a violation of Article 19(1)(a).

The fundamental right to freedom of speech and expression is regarded as one of the most basic elements of a healthy democracy for it allows its citizens to participate fully and effectively in the social and political process of the country. The freedom of speech and expression gives greater scope and meaning to the citizenship of a person extending the concept from the level of basic existence to giving the person a political and social life.

This right is available only to a citizen of India and not to foreign nationals. This right is, however, not absolute and it allows the Government to frame laws to impose reasonable restrictions in the interest of sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency and morality, and contempt of court, defamation, and incitement to an offense.

In the Preamble to the Constitution of India, the people of India declared their solemn resolve to secure all its citizen’s liberty of thought and expression. The Constitution affirms the right to freedom of expression, which includes the right to voice one’s opinion, the right to seek information and ideas, the right to receive information, and the right to impart information. The Indian State is under an obligation to create conditions in which all the citizens can effectively and efficiently enjoy aforesaid rights.

In RomeshThappar v State of Madras (AIR 1950 SC 124), [1]the Supreme Court of India held that the freedom of speech and expression includes freedom to propagate ideas that are ensured by freedom of circulation of a publication, as the publication is of little value without circulation. Patanjali Sastri, J., rightly observed that- ‘Freedom of Speech and Press laid at the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the process of Government, is possible’

However, Article 19(2) of the Constitution provides that this right is not absolute, and ‘reasonable restrictions’ may be imposed on the exercise of this right for certain purposes. The right to freedom of expression includes the right to express one’s views and opinions on any issue and through any medium whether it be in writing or by word of mouth.

The phrase “speech and expression” used in Article 19(1) (a) has a broad connotation. This right includes the right to communicate, print, and advertise the information. In India, freedom of the press is implied from the freedom of speech and expression guaranteed by Article 19(1)(a). The freedom of the press is regarded as a “species of which freedom of expression is a genus”. Freedom of the press is the most important wheel of democracy. Without a free press, a democracy cannot exist. The press is a great medium that conveys the truth to people. However, it cannot function fully if the press is not free.[2]

The citizens of India have the right to receive ‘commercial speech’ and they also have the right to read and listen to the same. This protection is available to the speaker as well as the recipient. Freedom of Speech and Expression also includes artistic speech as it includes the right to paint, sing, dance, write poetry, literature, and is covered by Article 19(1)(a) because the common basic characteristic of all these activities is freedom of speech and expression.[3]

Under the provisions of the Constitution of India, an individual, as well as a corporation, can invoke freedom of speech arguments and other fundamental rights against the State by way of a Writ Petition under Articles 32 and 226 of the Constitution of India subject to the State imposing some permissible restrictions in the interests of social control.

Under the provisions of Indian law, the right to invoke the freedom of speech arguments is not limited to individuals alone. Corporations are also entitled to invoke such arguments. The cases of Bennet and Coleman & Co. v. Union of India (1973) 2 SCR 757 [4] and Indian Express Newspapers (Bombay) P. Ltd v. Union of India (‘86) A.SC.515[5], are of great significance. In these cases, the corporations filed a writ petition challenging the constitutional validity of notifications issued by the Government. After much deliberation, the Courts held that the right to freedom of speech cannot be taken away with the object of placing restrictions on the business activities of citizens. However, the limitation on the exercise of the right under Article 19(1)(a) not falling within the four corners of 19(2) is not valid.

Importance of Freedom of Speech and Expression

Freedom of Speech is the bulwark of a democratic government. This freedom is essential for the proper functioning of the democratic process. Freedom of speech and liberty is regarded as the first condition of liberty. It occupies a preferred position in the hierarchy liberties giving succor and protection to all other liberties. It is the mother of all liberties. Some reasons for the importance of this right:

1. Freedom of expression is a foundation for many other rights

Freedom of expression is a human right and forms Article 19 of the Universal Declaration of Freedom of expression is not an absolute right: it does not protect hate speech or incitement to violence. That said, many other rights which are intrinsic to our daily lives build on and intersect with this protection for free thought and individual expression. Freedom of expression covers everything from satire to political campaigns to conversations in your own home. It’s a fundamental human right that allows citizens to speak freely and without interference.

2. A free press helps inform the public

Knowledge is power. In print, online, or TV or radio: without a free exchange of information, people can’t be fully aware of what’s going on around them and so can’t meaningfully participate in their communities or democracies.

Local and national reporters, bloggers, and news outlets can keep people informed about what is happening in the world around them. Freedom of expression is the legal underpinning that allows people to access information about current events and matters of public interest – whether that’s from large media companies, local newspapers, or each other through citizen journalism and social media.

When freedom of expression is respected and recognized the media can freely report on politics, economics, and societal events as they occur.

3. Discovery of truth

It’s crucial to quality journalism to be able to ask difficult questions, follow interesting stories, query inconsistencies, and report accurately on the issues. By dedicating time, energy, and skill to finding out what’s going on in the world around us, a free press can bring important information out into the public arena.

Accurate information is of huge importance to public debate: forming shared values and influencing policies at local, national, and international levels. Investigative journalism is one of the most public-facing ways of sharing new information. Freedom of expression supports and protects the press’s ability to freely research and report in the public interest.

4. Without freedom of expression: reporting is restrained

Truth or danger? In places where freedom of expression is not respected the media face a choice: self-censor or put yourself at risk.

When the media cannot accurately tell the whole story, it’s impossible to achieve balanced, high-quality journalism. In countries where the media are pressured to the only report on things that align with the ideological or political framework: journalists are forced to self-censor. Some do not report the full story, while others choose to report on others, ‘safer’ topics instead.

While some brave journalists continue to report on topics regardless of censorship and often risk fines, legal cases, prison sentences, or violence.

Respect for freedom of expression is an essential element for functioning and accurate media.

5. Freedom of expression gives a platform to other human rights

If a tree falls in the forest and no one hears it: does it make a sound?

If human rights are abused and no one knows: how does anyone stop it?

Freedom of expression underpins a wide variety of other human rights both directly and indirectly. It can shine a light on human rights abuses such as torture, LGBTI persecution, and interference with indigenous peoples’ land rights. Without accurate reporting, many human rights cases of abuse would not be known about and might continue with impunity. Freedom of expression allows people to tell their stories, help advocate, and hold governments to international human rights standards.

From access to information to freedom of assembly: freedom of expression allows for active participation in civil society and for that civic engagement to be heard. From petitions to boycotts, from public protest to the collective organization for workers’ rights – freedom of expression facilitates action and allows events to be reported on. A robust media – of citizens or news organizations – can act as a public watchdog, bringing important issues into the light. Because if no one knows: no one cares.

6. Marginalized and minority issues heard

Marginalized and minority voices are, by definition, more likely to be left out of mainstream discussions. Freedom of expression guarantees individuals and groups the right to tell their own stories, without censorship or fear of attacks. The improved representation can help improve understanding and opens to the door to creating better discourse and more connected society.

Freedom of expression helps a wide variety of marginalized causes and voices to be heard: from workers’ rights to women’s rights, disabled or LGBTI communities, ethnic and religious minorities, economically disadvantaged groups, age groups, and many more.

The right to freedom of expression also guarantees people the right to speak their opinions even when they are unpopular or go against the status quo: from ecology issues to disaster relief to speaking critically of how services such as care homes are run. Freedom of expression ensures people can advocate for themselves and others.[1]

In a democracy, freedom of speech & expression opens up channels of free discussion of issues. Freedom of speech plays a crucial role in the formation of public opinion on social, economic & political matters. It embraces within its scope the freedom of propagation and interchange of ideas, dissemination of information which would help the formation of one’s opinion & viewpoint & debates on matters of public concern. So long as the expression is confined to nationalism, patriotism & love for the motherland, the use of the National flag by the way of expression of those sentiments would be a Fundamental Right.

In Maneka Gandhi v. Union of India, BHAGWATI J[2]., has emphasized on the significance of the freedom of speech & expression in these words:

“Democracy is based essentially on free debate and open discussion, for that is the only corrective of government action in a democratic setup. If democracy means the government of the people by the people, it is obvious that every citizen must be entitled to participate in the democratic process, and to enable him to intelligently exercise his rights of making a choice, free & general discussion of public matters is essential.”

This aspect of the right to freedom of speech and expression extending the concept of citizenship to include socio-political participation of a person is critical in the process of determining the scope of the right to life of a citizen under Article 21 of the Constitution. It is important to note that the scope of the “freedom of speech and expression” in Article 19(1)(a) of the Constitution has been expanded to include the right to receive and disseminate information. It includes the right to communicate and circulate information through any medium including print media, audio, television broadcast, or electronic media.

The judiciary has time and again opined that the right to receive information is another facet of the right to freedom of speech and expression and the right to communicate and receive information without interference is a crucial aspect of this right. This is because, a person cannot form an informed opinion or make an informed choice and effectively participate socially, politically, or culturally without receipt of adequate information. The Supreme Court in State of Uttar Pradesh v. Raj Narain31 has held that Article 19(1)(a) of the Constitution guarantees the freedom of speech and expression to all citizens in addition to protecting the rights of the citizens to know the right to receive information regarding matters of public concern.

This position was reiterated by the Court in Secretary, Ministry of Information and Broadcasting, Govt. of India v. Cricket Association of Bengal 32 [3]wherein it was held that Article 19(1)(a) includes the right to acquire and disseminate information. The Supreme Court, while opining on the right to freedom of information, further noted in Dinesh Trivedi, M.P. and Ors v. Union of India33 that “in modern constitutional democracies, it is axiomatic that citizens have a right to know about the affairs of the government which, having been elected by them, seek to formulate sound policies of governance aimed at their welfare.”

A print medium is a powerful tool for the dissemination and receipt of information for any citizen. Thus, access to printed material is crucial for the satisfaction of a person’s right to freedom of speech and expression guaranteed to him under the Constitution. Persons with print impairment have no access to printed material in their normal format. Failure on part of the State to make legislative provision for enabling access to persons with print impairment of material in alternative accessible formats would constitute a deprivation of their right to freedom of speech and expression and such inaction on the part of the State falls foul of the Constitution. Because of the same, it is an obligation on part of the State to ensure that adequate provisions are made in the law enabling persons with print impairment to access printed material in accessible formats.

Under the Freedom of Speech and Expression, there is no separate guarantee of freedom of the press, and the same is included in the freedom of expression, which is conferred on all citizens (Virender Vs. State of Punjab, A. 1958, SC. 986 and Sakal Papers Vs. Union of India A.1962 S.C. 305)[4]. It has also been by this judgment that freedom of the press under the Indian Constitution is not higher than the freedom of an ordinary citizen.

Need to Protect Freedom of Speech and Expression

Freedom of speech offers a human being to express his feelings to others, but this is not the only reason; the purpose to protect the freedom of speech. There could be more reasons to protect these essential liberties. There are four important justifications for freedom of speech

For the discovery of truth by open discussion – According to it, if restrictions on speech are tolerated, society prevents the ascertainment and publication of accurate facts and valuable opinions. That is to say, it assists in the discovery of truth.
Free speech as an aspect of self- fulfillment, and development – freedom of speech is an integral aspect of each individual’s right to self-development and self-fulfillment. Restriction on what we are allowed to say and write or to hear and read will hamper our personality and its growth. It helps an individual to attain self-fulfillment.
For expressing belief and political attitudes – freedom of speech provides an opportunity to express one’s belief and show political attitudes. It ultimately results in the welfare of the society and state. Thus, freedom of speech provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.
For active participation in democracy – democracy is the most important feature of today’s world. Freedom of speech is there to protect the right of all citizens to understand political issues so that they can participate in the smooth working of democracy. That is to say, freedom of speech strengthens the capacity of an individual in participating in decision-making.

Thus we find that protection of freedom of speech is very much essential. Protection of freedom of speech is important for the discovery of truth by open discussion, for self- fulfillment, and development, for expressing belief and political attitudes, and for active participation in democracy.

Indian Perspective

In India under Article 19(1)(a) of the Constitution of India, “all citizens shall have the right to freedom of speech and expression”. In the Preamble to the Constitution of India, the people of India declared their solemn resolve to secure all its citizen’s liberty of thought and expression. The Supreme Court of India held that the freedom of speech and expression includes freedom to propagate ideas which are ensured by freedom of circulation of a publication, as the publication is of little value without circulation.

Article 19(2) of the Constitution of India provides that this right is not absolute and ‘reasonable restrictions’ may be imposed on the exercise of this right for certain purposes. The right to freedom of speech would include both artistic and commercial speech which is required to be protected. Freedom of speech and expression would include artistic speech as it includes the right to paint, sing, dance, write poetry, literature and is covered by Article 19(1)(a) of the Constitution because the common basic characteristic of all these activities is freedom of speech and expression.

Freedom of speech enjoys a special position as far as India is concerned. The importance of freedom of expression and speech can be easily understood by the fact that the preamble of the constitution itself ensures to all citizens inter alia, liberty of thought, expression, belief, faith, and worship. The constitutional significance of the freedom of speech consists of the Preamble of Constitution and is transformed as a fundamental and human right in Article 19(1)(a) as “freedom of speech and expression”.[1]

Explaining the scope of freedom of speech and expression Supreme Court has said that the words “freedom of speech and expression” must be broadly constructed to include the freedom to circulate one’s views by words of mouth or in writing or through audiovisual instrumentalities. Freedom of Speech and expression means the right to express one’s convictions and opinions freely by words of mouth, writing, printing, pictures, or any other mode. It thus includes the expression of one’s idea through any communicable medium or visible representation.

Moreover, it is important to note that the liberty of one must not offend the liberty of others. Patanjali Shastri, J. in the A.K. Gopalan case, observed, “man as a rational being desired to do many things, but in a civil society his desires will have to be controlled with the exercise of similar desires by other individuals”.

It, therefore, includes the right to propagate one’s views through print media or any other communication channel e.g. the radio and the television. Every citizen of this country, therefore, has the right to air his or their views through the printing and or the electronic media subject of course to permissible restrictions imposed under Article 19(2) of the Constitution. In sum, the fundamental principle involved here is the people’s right to know. Freedom of speech and expression should, therefore, receive generous support from all those who believe in the participation of people in the administration.

We can see the guarantee of freedom of speech under the following heads:

Freedom of Press

Although Article 19 does not express provision for freedom of the press but the fundamental right of the freedom of press implicit in the right the freedom of speech and expression. In the famous case Express Newspapers (Bombay) (P) Ltd. v. Union of India court observed the importance of the press very aptly. Court held in this case that “In today’s free world freedom of the press is the heart of social and political intercourse. The press has now assumed the role of the public educator making formal and non-formal education possible on a large scale particularly in the developing world, where television and other kinds of modern communication are not still available for all sections of society. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate [Government] cannot make responsible judgments. Newspapers being purveyors of news and views having a bearing on public administration very often carry material which would not be palatable to Governments and other authorities.”

The above statement of the Supreme Court illustrates that the freedom of the press is essential for the proper functioning of the democratic process. Democracy means the Government of the people, by the people, and for the people; every citizen must be entitled to participate in the democratic process and to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is essential. This explains the constitutional views of the freedom of the press in India.

Obscenity

Freedom of speech, though guaranteed, is not absolute in India. Unlike the U.S. Constitution, the text of India’s Constitution sets out restrictions on free speech. The freedom of speech guaranteed under Article 19(1)(a) can be subject to reasonable state restriction in the interest of decency or morality. Obscenity in India is defined as “offensive to modesty or decency; lewd, filthy and repulsive.” It stated that the test of obscenity is whether the publication, read as a whole, tends to deprave and corrupt those whose minds are open to such immoral influences, and therefore each work must be examined by itself.

Concerning art and obscenity, the Court held that “the art must be so preponderating as to throw obscenity into a shadow or the obscenity so trivial and insignificant that it can have no effect and may be overlooked .” The Court concluded that the test to adopt in India, emphasizing community mores, is that obscenity without a preponderating social purpose or profit cannot have the constitutional protection of free speech.

Right to Information

The right to know, to information is another facet of freedom of speech. The right to know, to receive, and to impart information has been recognized within the right to freedom of speech and expression. A citizen has a fundamental right to use the best means of imparting and receiving information and as such to have access to telecasting for the purpose. The right to know has, however, not yet extended to the extent of invalidating Section 5 of the Official Secrets Act, 1923 which prohibits disclosure of certain official documents. Even, Right to Information Act 2005, which especially talks about peoples’ right to ask information from Government officials, prohibits discloser of certain documents under u/s 8 of the Act. These exceptions are generally the grounds of reasonable restrictions over freedom of speech and expression under Article 19(1) of the Constitution of India. One can conclude that ‘right to information is nothing but one small limb of a right of speech and expression.

Voters Have Right to Know About their Candidates

In a landmark judgment in Union of India v. Association for Democratic Reforms4, a three-judge bench held that the amended Electoral Reforms Law passed by Parliament is unconstitutional as being volatile of citizen’s right to know under Art. 19(1)(g).

The’ Freedom of Speech and Expression’ Is Indeed A Very High One

In the recent judgment of the Supreme Court in Khushboo v. Kannaiammal6 upholds the right to freedom of speech and expression. Khushboo’s right to freedom of speech was violated by the institution of multiple criminal cases against her in various courts across the country and the consequent harassment that she suffered.

Grounds of Restrictions

It is necessary to maintain and preserve freedom of speech and expression in a democracy, so also it is necessary to place some restrictions on this freedom for the maintenance of social order because no freedom can be absolute or completely unrestricted. Accordingly,

under Article 19(2) of the Constitution of India, the State may make a law imposing “reasonable restrictions” on the exercise of the right to freedom of speech and expression “in the interest of” the public on the following grounds: Clause (2) of Article 19 of the Indian constitution contains the grounds on which restrictions on the freedom of speech and expression can be imposed:-

1) Security of State: Security of state is of vital importance and a government must have the power to restrict the activity affecting it. Under Article 19(2) reasonable restrictions can be imposed on freedom of speech and expression in the interest of the security of State. However, the term “security” is a very crucial one. The term “security of the state” refers only to serious and aggravated forms of public order e.g. rebellion, waging war against the State, insurrection, and not ordinary breaches of public order and public safety, e.g. unlawful assembly, riot, affray. Thus speeches or expressions on the part of an individual, which incite to or encourage the commission of violent crimes, such as, murder are matters, which would undermine the security of the State.

2) Friendly relations with foreign states: In the present global world, a country has to maintain a good and friendly relationship with other countries. Something which has the potential to affect such a relationship should be checked by the government. Keeping this thing in mind, this ground was added by the constitution (First Amendment) Act, 1951. The object behind the provision is to prohibit unrestrained malicious propaganda against a foreign-friendly state, which may jeopardize the maintenance of good relations between India and that state.

3) No similar provision is present in any other Constitution of the world: In India, the Foreign Relations Act, (XII of 1932) provides punishment for libel by Indian citizens against foreign dignitaries. The interest of friendly relations with foreign States, would not justify the suppression of fair criticism of the foreign policy of the Government. However, it is interesting to note that members of the commonwealth including Pakistan are not a “foreign state” for this Constitution. The result is that freedom of speech and expression cannot be restricted on the ground that the matter is adverse to Pakistan.

4) Public Order: Next restriction prescribed by the constitution is to maintain public order: This ground was added by the Constitution (First Amendment) Act. ‘Public order’ is an expression of wide connotation and signifies “that state of tranquility which prevails among the members of political society as a result of internal regulations enforced by the Government which they have established.”

5) Decency or morality: The way to express something or to say something should be a decent one. It should not affect the morality of society adversely. Our constitution has taken care of this view and inserted decency and morality as a ground. The words ‘morality or decency’ are words of wide meaning. Sections 292 to 294 of the Indian Penal Code provide instances of restrictions on the freedom of speech and expression in the interest of decency or morality. These sections prohibit the sale or distribution or exhibition of obscene words, etc. in public places. No fixed standard is laid down till now as to what is moral and indecent. The standard of morality varies from time to time and from place to place.

6) Contempt of Court: In a democratic country Judiciary plays a very important role. In such a situation, it becomes essential to respect such an institution and its order. Thus, restriction on the freedom of speech and expression can be imposed if it exceeds the reasonable and fair limit and amounts to contempt of court. According to Section 2 ‘Contempt of court’ may be either ‘civil contempt’ or ‘criminal contempt.’ But now, Indian contempt law was amended in 2006 to make “truth” a defense.

However, even after such an amendment, a person can be punished for the statement unless they were made in the public interest. Again in Indirect Tax Practitioners Assn. Vs R.K.Jain, it was held by the court that, “Truth based on the facts should be allowed as a valid defense if courts are asked to decide contempt proceedings relating to contempt proceeding relating to a speech or an editorial or article”. The qualification is that such defense should not cover-up to escape from the consequences of a deliberate effort to scandalize the court.

7) Defamation: Ones’ freedom, be it of any type, must not affect the reputation or status of another person. A person is known by his reputation more than his wealth or anything else. Constitution considers it as the ground to put restrictions on freedom of speech. A statement, which injures a man’s reputation, amounts to defamation. Defamation consists of exposing a man to hatred, ridicule, or contempt. The civil law relating to defamation is still uncodified in India and subject to certain exceptions.

8 Incitement to an offense: This ground was also added by the Constitution (First Amendment) Act, 1951. Freedom of speech and expression cannot confer a right to incite people to commit the offense. The word ‘offense’ is defined as any act or omission made punishable by law for the time being in force.

9) Sovereignty and integrity of India: To maintain the sovereignty and integrity of a state is the prime duty of government. Taking it into account, freedom of speech and expression can be restricted so as not to permit anyone to challenge sovereignty or to permit anyone to preach something which will result in a threat to the integrity of the country.[2]

From the above analysis, it is evident that Grounds contained in Article 19(2) show that they are all concerned with the national interest or in the interest of the society. The first set of grounds i.e. the sovereignty and integrity of India, the security of the State, friendly relations with foreign states, and public order are all grounds referable to the national interest, whereas, the second set of grounds i.e. decency, morality, contempt of court, defamation and incitement to an offense are all concerned with the interest of the society.

Conclusion

Expression through speech is one of the basic guarantees provided by civil society. However in the modern world Right to freedom of speech and expression is not limited to express ones’ view through words but it also includes circulating one’s views in writing or through audiovisual instrumentalities, through advertisements, and any other communication channel. It also comprises of right to information, freedom of the press, etc. It is a right to express and self-realization.

The words ‘in the interest of public order’, as used in Article 19 include not only utterances as are directly intended to lead to disorder but also those that tend to lead to disorder. There should be a reasonable and proper nexus or relationship between the restriction and achievement of public order.

Freedom of speech and expression is the bulwark of democratic government. This freedom is essential for the proper functioning of the democratic process and is regarded as the first condition of liberty. It occupies a preferred position in the hierarchy of liberties giving protection to all other liberties. It has been truly said that it is the mother of all other liberties. That liberty includes the right to acquire information and disseminate the same. It includes the right to communicate it through available media without interference to as large a population of the country, as well as abroad, as is possible to reach. The right to know is the basic right of the citizens of a free country and Art. 19(1)(a) protects that right. The right to receive information springs from Art 19(1)(a).

Durga Das Basu, Introduction to the Constitution of India 87

Dr. J N Pandey, constitutional law of India 222

https://10years.mediadefence.org/10-reasons-freedom-of-expression/

Maneka Gandhi v. Union of India, BHAGWATI J // Dr. J N Pandey 210

Govt. of India v. Cricket Association of Bengal 32 // Dr. J N Pandey

Virender Vs. State of Punjab, A. 1958, SC. 986 and Sakal Papers Vs. Union of India A.1962 S.C. 305

Durga Das Basu,Introduction to the constitution of india,92

https://www.toppr.com/guides/essays/essay-on-freedom-of-the-press

Durga Das Basu,Introduction to the constitution of india,118

Bennet and Coleman & Co. v. Union of India (1973) 2 SCR 757// Dr. J N Pandey,213

Indian Express Newspapers (Bombay) P. Ltd v. Union of India (‘86) A.SC.515// Dr. J N Pandey,199

Latest Posts

A bench of the apex court consisting Justice R. F Nariman, Justice Navin Sinha and Justice Indira Banerjee held that Bangalore club one of the oldest club in Bangalore, cannot be held liable to pay wealth tax under wealth tax act.

Justice Nariman disclosed the interesting information about the connection between Bangalore Club and former Prime Minster of Great Britain, Winston Churchill,“In the year of grace 1868, a group of British officers banded together to start the Bangalore Club. In the year of grace 1899, one Lt. W.L.S. Churchill was put up on the Club’s list of defaulters, which numbered 17, for an amount of Rs.13/- being for an unpaid bill of the Club. The “Bill” never became an “Act”. Till date, this amount remains unpaid. Lt. W.L.S. Churchill

went on to become Sir Winston Leonard Spencer Churchill, Prime Minister of Great Britain. And the Bangalore Club continues its mundane existence, the only excitement being when the tax collector knocks at the door to extract his pound of flesh.”

Appellant’s Contention

The Wealth Tax Officer, Bangalore passed an order of statement on 3^rd March, 2000 and referred that the Bangalore club is not registered as a society, a trust or a company. The assessing company came to the conclusion that came to the conclusion that the rights of the members are not restricted only to user or possession, but as persons to whom the assets of the Club belong. A Referring to Section 167A, inserted into the Income Tax Act, 1961, and to Rule 35 of the Club Rules, the assessing officer concluded that the number of members and the date of dissolution are all uncertain and variable and therefore indeterminate, as a result of which the Club was liable to be taxed under the Wealth Tax Act. By an order dated 25th October, 2000, the CIT dismissed the appeal against the aforesaid order.

Income Tax Appellate Tribunal, Bangalore judgement

The ITAT in a detailed order passed on 7^th May,2002 allowed the appeal and set aside the orders of the assessing officer and the CIT. It referred to the Objects of the Bangalore Club, Rule 35 of the Club’s rule which deals with the appointment of liquidators, Section 21AA of the Wealth Tax Act, dealing with the assessment to be done when assets are held by certain associations of persons, Section 167A of the Income Tax Act, dealing with the charge of tax when shares of members of association or firm is unknown and referred to the case of CIT v Balkrishna, dealing with the body of individuals.

It held that with the reference to Rule 35 of the Club Rules, it is clear that the members of the club would be entitled to equal share after winding up, and as such, Section 21AA of the Wealth Tax Act could not get attracted in the case.

An appeal was filed in the Karnataka HC, against the order of ITAT, which ruled in favour of the Revenue. A review petition against this order of the HC was dismissed on April 19^th, 2007.

Supreme Court’s Judgement

Supreme Court stated,

“The Bangalore Club is an association of persons and not the creation, by a person who is otherwise assessable, of one among a large number of associations of persons without defining the shares of the members so as to escape tax liability. For all these reasons, it is clear that Section 21AA of the Wealth Tax Act does not get attracted to the facts of the present case.”[1]

The Supreme Court looked into the scope of Section 3(1) of the Wealth Tax Act, and noted that it’s not applicable as the Bangalore Club as it’s neither an individual, nor a Hindu Undivided Family, nor a company.

Furthermore, the Court noted that the Section 21AA was inserted in the Wealth Tax Act on 1^st April, 1984 and therefore a an association of persons whose share is indeterminate was also brought under the Wealth Tax net. This resulted the Court in examining the definition and scope and definition of the term ‘association of persons’. The Court concluded that in order to Section 21AA of the Wealth Tax to be attracted, the group of people should have come together with a common purpose of doing business and making profits. However, this purpose is absent from the object of establishing the Bangalore Club. It even explained the ‘association of persons’ occurring in Section 21 AA as follows:

“In order to be an association of persons attracting Section 21AA of the Wealth Tax Act, it is necessary that persons band together with some business or commercial object in view in order to make income or profits.

The presumption gets strengthened by the language of Sec. 21AA (2), which speaks of a business or profession carried on by an association of persons which then gets discontinued or dissolved. The thrust of the provision therefore, is to rope in associations of persons whose common object is a business or professional object, namely, to earn income or profits. Bangalore Club being a social club whose objects have been referred to by the Appellate Tribunal in this case make it clear that persons who are banded together do not band together for any business purpose or commercial purpose in order to make income or profits.

Section 21AA has been introduced in order to prevent tax evasion. The reason why it was enacted was The object was to rope in certain assessees who have resorted to the creation of a large number of association of persons without specifically defining the shares of the members of such associations of persons so as to evade tax. In construing Section 21AA, it is important to have regard to this object.”

On the basis of these grounds, the Court allowed the appeal of Bangalore Club, setting aside the decision of the High Court and it’s review judgement.

Key Highlights

Case no. CIVIL APPEAL NOS. 3964-71 of 2007.
Bangalore Club was represented by Senior Advocate Nikhil Nayyar while the assessing authority was represented by Additional Solicitor General Vikramjit Banerjee.

Discuss the following provisions:

Explain section 167A of Income Tax Act, 1961.
Explain Section 21AA of the Wealth Tax Act.
Explain section 3 of the Wealth Tax Act.

REPORT BY- ABHILASHA KUMARI

22244_2007_33_1501_23847_Judgement_08-Sep-2020.pdf287 KB

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This article has been written by Khan Mahe, Rizvi Law College. Picture credits to Digital trends

Introduction

A Brief Analysis of Renewable Energy Laws and it ‘s Importance for the Betterment and Development of Society at Large

What is Renewable Energy?

Renewable Energy is Referred to as Clean Energy, which comes from Natural Resources or Processes that are Constantly Replenished.or from a source that is not depleted when used ,In simple terms, Renewable Energy is an Energy that Never Finishes and Can be supplied to the consumers For a lifetime ,However The most essential renewable energy implied Solar (photovoltaic, solar thermal) ,Wind,Biogas (e.g., landfill gas/wastewater treatment digester gas)

Geothermal, Biomass ,Low-impact hydroelectricity, Emerging technologies – wave and tidal power Or It Can all be an amazing alternative for non-renewable energy like coal, petroleum etc.

Importance of Renewable Energy in India

In the modern world having efficient energy infrastructure is vital for a country to find social and economic success. Lack of a proper energy infrastructure is one of the major factors that can hinder a developing country’s economic development. Many countries in the developing world at this moment are suffering from frequent power outages and insufficient power supply access, which are having negative consequences for their populations however, The Government now have Assess to the availability of local renewable resources which Can Generates the energy that produces no greenhouse gas emissions from fossil fuels and reduces some types of air pollution moreover, it Diversifying the energy supply and reducing dependence on imported fuels which results into economic development and jobs in manufacturing, installations of more plants for the benefit of the people, To look after such work The Ministry of New and Renewable Energy have been formed, Which makes Committees and Laws for the betterment of the society.

Laws Related

Energy laws usually govern the use and taxation of energy, both renewable and non-renewable which are the primary authorities ,However

Renewable energy law is a distinct kind of energy law, and relates in essence to the transactional legal and policy issues that confine the development, implementation, and commercialization of renewable sources of energy in India .

In India The Ministry of New and Renewable Energy (MNRE) is the nodal agency of the GOI for promotion of renewable energy, both grid-connected and off-grid. Relating to new and renewable energy. The broad aim of the ministry is to develop and deploy new and renewable energy for supplementing the energy requirements of the country. As per the GOI (Allocation of Business) Rules 1961.Moreover, It has designated different institutes or agencies to implement the schemes such as Solar Energy Corporation of India Limited (SECI) and NTPC Limited in various states.

The Electricity Act, the National Electricity Policy 2005 and the Tariff Policy 2016 (Tariff Policy) encourage private sector participation in renewable energy in India

1) The Electricity Act 2003

It is an Act of the Parliament of India enacted to transform the power sector and provides a framework for the comprehensive extension of the electricity sector. It further makes provisions for preferential tariff and quotas for opting for renewable energy. Which are obligated procurement of renewable energy for distribution licensees and facilitation of grid connectivity were incorporated. additionally It has provide Electricity Market across all National geography to remain same and you finds statutory status rather than driven by policy guidelines it open ups avenue market which expect the contract imposition or made the payment security mechanism easy.It shall also provide a more vibrant ecosystem for other technologies including hydro-power and energy storage.

Work towards the Promotion of Renewable Energy :

1.Inclusion of National Renewable Energy will now find special attention compared to a paragraph importance within National Electricity Policy and Tariff Policy

2.RPO(Renewable purchase obligation) and HPO(Hydro power purchase obligation) is mandatory compliance with specified enforceable Penalty.

3.Central Government specifying HPO and RPO may lead to avoid inconsistency across states, however, the challenge would be to assess

Assured PSM, Contract enforcement authority to deal with contract violation, facilitative open access framework will be positive for grid decarbonisation

4.Statute driven RGO(Renewable Generation obligation? and bundling of RE with thermal will give another push for RE and improved stranded asset utilisation

It further Strengthened legal framework for Electricity and is Mandatory legal member in regulatory bodies.

2) National Electricity policy 2005

The National Energy Policy (NEP) aims to chart the way forward to meet the Government Audacious achievement for India’s energy sector developments.The policy allows preferential tariffs for power produced from renewable energy sources. It aimed to provide access to electricity to all and increase the minimum per capita availability to 1000 kWh per year by 2012.It further looked forward to Energy Conservation and addressed the Environmental Issues, Supply of Reliable and Quality Power of specified standards in an efficient manner and at reasonable rates.

3) Tariff Policy 2006

The Ministry of Power announced the Tariff Policy, in continuation of the National Electricity Policy of 2005 and it provides for penalty for unscheduled power cuts, except in the case of technical faults or act of God (natural calamities). The government intends to provide ’24X7 Power to All’ at affordable rates and included certain provisions regarding renewable energy and cogeneration.Thus ,Therefore, there is a provision in the tariff to cap transmission and distribution losses.

4) Integrated energy policy 2006

The Government has formulated an Integrated Energy Policy (IEP) document which gives a roadmap to develop energy supply options and increased exploitation of renewable energy sources further addresses all aspects of energy, including energy security, access and availability, affordability and pricing, efficiency and the environment. The broad vision behind the energy policy is to provide safe and convenient energy at the lowest cost in a technically efficient, economically viable, and environmentally sustainable manner -thereby reliably meeting the demand for energy services of all sectors, including the energy needs of vulnerable households in all parts of the country.

Conclusion

Energy is fundamental to the existence of society, as without it industry, commerce, and society cannot function ,and Renewable Energy and Law have benefitted the society so far, However, the renewable energy industry is still a developing industry and renewables only contribute less than 2% to the nation’s consumption.

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This article has been written by Harshit Khandelwal, 2^nd year Law student currently pursuing BBA-LL.B(Hons.) from Unitedworld School of Law, Karnavati University.

Decided On

13^TH August, 1997

Citation

AIR 1997 SCC 241

Bench

J.S. Verma CJ., Sujata V. Manohar, B.N. Kripal JJ.

Relevant Law

Sexual Harassment at of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013

Facts

Bhanwari Devi was a woman from a village in Rajasthan who was a social activist/worker aiming to end the evil of Child Marriage in India. She was working at a rural level with a social development program which was about to stop child marriage in a village and this program was an initiative of Rajasthan State Government. Bhanwari Devi tried her best to stop the marriage which was going on in Ramakant Gujjar’s family. However, even after the protest, the marriage was completed. After that Bhanwari Devi was exposed and put forward to boycott and social punishment. In 1992, to take revenge from Vishaka, Ramakant along with 5 other men raped her in front of her husband. At first, the police department tried to discourage them from filing the complaint by continuously giving them excuses, but still, she managed to lodge a complaint against them. At the police station, she was subjected to a lot of cruelty by the female police constable and even her lehenga was demanded by the police as evidence and then she was left with nothing except her husband’s blood-stained dhoti. The police also refused their request to spend the night at the police station.

The trial court announced the judgement in which the accused was discharged for not being guilty of any offence against Vishaka. After the judgement of the trial court still, she didn’t lose hope and by seeing this determination NGO and many female workers supported her. With their support, a complaint was filed before the Supreme Court of India under the name of “Vishaka”. To frame guidelines for preventing Sexual Harassment at the Workplace, the apex court was called upon to frame guidelines in this matter.

After this, the Supreme Court of India comes up with guidelines known as “Vishaka Guidelines”. It formed the basis of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

Issues Raised

Whether the enactment of guidelines was mandatory for the sexual harassment of women at workplace?

Judgment

Chief Justice J.S. Verma conveyed the judgement of Vishaka’s case. Verma J was a representative of Justice B.N. Kripal and Justice Sujata V. Manohar on account of the writ petition which was filed before the Supreme Court by Vishaka. Gender equality finds a place in Fundamental Rights laid down under Article 14, 19, and 21. It violated the right to live a dignified life and the right to life as well. The basic requirement of filing the case was that there should be a safe working environment at the workplace for women.

After hearing all the pleadings from both the sides the bench decided that women should have Fundamental Rights for Sexual Harassment at the Workplace. The court also issued some guidelines which need to be followed by the employees which will help them avoid Sexual Harassment of Women at the Workplace. The court also mentioned that there should be proper techniques which need to be followed in the cases related to sexual harassment at the workplace. Gender equality among people was the main aim and objective of the Supreme Court and to also ensure that there should no discrimination against women at workplace. After the judgement of this case, Supreme Court defined Sexual Harassment as any physical touch or conduct, any unpleasant taunt or misbehaviour, showing of pornography, sexual favour or any sexual desire towards women will come under the context of Sexual Harassment.

Critical Analysis

Supreme Court in the case of Vishaka & Ors. V. The State of Rajasthan specifically defined the actual meaning of Sexual Harassment which states that any uninvited or unwanted physical touch or conduct or any definable sexual comment or showing of pornography comes under the term ‘Sexual Harassment’.

According to me, any such type of conduct against women violates the right to life of women and the right to live a dignified life as well. It hinders both the physical and mental health of women. Equality among genders should be followed at the workplace and sexual harassment should be avoided which is happening against the women very often in today’s world.

The Supreme Court also issued the guidelines that whether it be a public or private organization, the person-in-charge or the head of the organization will be responsible for taking appropriate actions against sexual harassment at the workplace against women.

Conclusion

Sexual Harassment at the workplace in India is increasing at a very high speed. Some strict actions need to be taken against it, otherwise, it will hamper the working ratio of women in India, and eventually, the number of women working will reduce day by day. Gender equality was the main objective behind the stabilization of this right so that the discrimination against women can be reduced. This practice needs to be stopped to prevent the respect and dignity of women in India.

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This article has been written by Yash Mittal, who is pursuing LLB-1 year from Mewar Law University. Picture credits to NBC news

Immediately after the imposition of lockdown by our honourable Prime Minister on 24 March 2020, considering the outbreak of world pandemic that is COVID-19. Only the essential services were given access, all the school, colleges, universities, offices were ordered to be shut.

The main objective of the lockdown is ‘Stay home, Stay safe’. But is it possible to stay safe at home trapped with their abusers. Women were put in vulnerable situations where they don’t have any other option left but to stay with their abusers and nowhere to go.

The Protection of Women from Domestic Violence Act 2005 is an Act of the Parliament of India enacted to protect women from domestic violence. This is the first definition of domestic violence in Indian law. It covers the broader aspects of domestic violence not just only physical violence, but also other forms of violence such as emotional, verbal, sexual, and economic abuse.

United Nations defines domestic violence as domestic violence” or “intimate partner violence”, can be defined as a pattern of behavior in any relationship that is used to gain or maintain power and control over an intimate partner.

After the imposition of lockdown, there is a huge surge in cases of domestic violence. Women face physical and mental abuse.

From the beginning the situation of women in India is vulnerable, they were ill-treated at their on house which considered being the safest place.

The patriarchal structure of Indian society further adds to the problems of women

World wide increase in domestic violence is described by the United nation as a ‘shadow pandemic’.

Reports

According to India’s national family health survey from 2015-2016, around 33% of women have experienced spousal violence – physical, sexual, or emotional. Only 14% of women were able to seek help.

Rekha Sharma, The Chairperson of the National Commission for Women said that they were receiving more complaints in the lockdown.

Domestic violence has increased in their states and the national commission of women (NCW) was working on the complaints 24/7.

NCW helpline – Whatsapp number has also been introduced for women to report to cases of domestic violence.

WhatsApp number for domestic violence is 7217735372.

Impact on Health

The impact of violence on health is also very much significant on women’s and as well as on their children’s also. Violence can result in severe injuries and serious physical, mental, and sexual health problems.

Sexual violence has been also increased during the lockdown. The sale of condoms, sex toys which indicate the violation of sexual rights of women which results in unplanned pregnancies, can transmit infections, HIV.

Disconnection from social support systems is one of the reasons for an increased risk of domestic abuse during the period of lockdown. As a result, there are very few ways to find safety or help for victims of domestic violence.

Violence due to Economic Instability

The study of Daniel Schneider at UC Berkeley shows that unemployment among men led to abusive behavior. His studies also show that men felt increasingly frustrated due to the loss of their jobs and financial security and this results in violence towards women.

Loss of income for males also leads to lesser control over their household which makes them even more frustrated.

Consumption of liquor by men and violence towards women is interlinked. It was found that half of the physical abuse and sexual abuse was done by men who consume liquor or alcohol.

Women who were earning for their households and now we’re not able to fulfill the requirements whenever their husband demands money for liquor consumption which also results in domestic violence.

Women were the only workers whose work was doubled during the lockdown because now all the family members were at home for 24/7.

It’s always a fight of a feminist to get women’s work recognized in the economy as well. Most of the women have been engaged in the informal sector which doesn’t get counted under GDP.

Women work 24 hours at home, which is never paid nor appreciated and acknowledged. Most of the time women were not allowed to leave an abusive spouse and sometimes women themselves don’t want to leave because of the stigma attached to the patriarchal Indian society that getting a divorce is against the traditions and no men could marry her again.

Conclusion

The life of women isn’t safe at home nor outside. Even after the strict laws; poor implementation of them has always made the crime rates increased. But the change comes from within and the victims should start raising their voices and we as a society had to help the victims.

Education is the key that helps them to know their rights and which also makes them self-dependent.

The campaign like Bell Bajao (Hindi for ‘ring the bell’) is an anti-domestic violence campaign that urges local residents to take a stand against physical abuse through simple acts meant to interrupt domestic violence. When residents, especially men, overhear violence against a woman taking place, they are urged to ring the doorbell and ask a simple question – such as to borrow some tea, to use the phone, or to have a glass of water. This is meant to let the abuser know that others can hear them and will act to interrupt the violence.

If you think dealing with lockdown was very stressful then just imagine how many women were suffering from domestic violence which adds to their problems.

Helpline

1) Police helpline: 1091/1291

2) National Commission for women’s WhatsApp helpline: 7217735372

3) Helpline for shakti Shalini based NGO: 10920

4) Crisis for Sneha, a Mumbai based NGO: 9833052684,9167535765.

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Facts of the Case

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Need to Protect Freedom of Speech and Expression

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