INTRODUCTION

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

CONSTITUTIONALITY OF SECTION  499-500 OF IPC

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

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

CORE ESSENTIALS OF DEFAMATION

• Falsity of the defamatory statement

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

• Defamatory statement against the plaintiff

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

• Publication of the defamatory Statement

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

TYPES OF DEFAMATION

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

Slander

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

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

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

Libel

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

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

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

DEFENCES AGAINST DEFAMATION

• Justification of truth  

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

• Fair and Bonafede Comment

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

• Absolute privilege

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

During the judicial proceedings or,

By the officials of the Government or,

By the Legislators during discussions and debates in Parliament or,

During the political remarks in the parliamentary hearings or,

The conflicts and rants between husband and wife.

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

• Statement expressing views and opinions

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

• Consent

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

CONCLUSION

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

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

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

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

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

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

INTRODUCTION

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

Before the Keshavnanda Bharti Judgment | History

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

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

The Golaknath Judgment

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

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

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

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

Nationalisation of Banks

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

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

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

Emergence of Basic structure Doctrine in Keshavnanda Bharti case

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

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

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

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

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

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

Basic structure according to the Majority Decision

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

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

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

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

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

The Minority View

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

The Indira Gandhi election case

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

^[2] AIR 1951 SC 458.

^[3] AIR 1965 SC 845.

^[4]  AIR 1967 SC 1643. ss

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

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

Introduction

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

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

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

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

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

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

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

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

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

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

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

Social Media Evidence: Boon or Bane?

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

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Mansi Tyagi, is a student of Symbiosis Law School, Pune. In this article, she has discussed the rules and principles concerning the theory of relevancy under Evidence Law. Also, she has tried explaining the distinction between admissibility and relevancy of facts. And in conclusion, she has tried putting forth the exceptions to the relevant facts getting admissible in a court of law.

What is Evidence?

One which provides proof, or one which furnishes reasons to believe the trueness of the facts, in general terms, is known as an Evidence. To be more technical, Section-3, of the Evidence Act, 1872, bifurcates evidence to device oral and documentary evidence^[1]. While oral evidence refers to the statements made by the witnesses referring to the facts in issue permitted or required by courts; the documentary evidence consists of all documents submitted to the court for inspection. Opposed to the glittery emotional speeches in a legal house of a movie, the real-life legal proceedings work on evidence for reaching conclusions. Evidence facilitates the course of justice by guiding them^[2]. But before any evidence is relied upon by the courts, the evidence is tested on three grounds:

1. Relevancy
2. Admissibility
3. Weight

Relying on the relevancy, the evidence is admitted. And once evidence is admitted, its weight is determined by its probative value.

What is a Relevant Fact?

Before anything it is prima facie important to know what is a relevant fact and how does it get admitted in the court of law? Theory of Relevancy is the first and foremost hurdle that is applied to any evidence and any and every evidence needs to be cleared for getting admitted in the court of law. Relevant facts, also known as factum probans, are the facts which will be used to prove the genuineness of the facts in issue, i.e. factum probandum. In the case of ‘DPP v. Kilbourne’^[3], the English Supreme Court defined relevant evidence as the one that makes the fact in issue more or less “probable”. Chapter 2 of the Indian Evidence Act, 1872 comprising sections 5-16 lays down what construes a relevant fact and what does not. While the chapter gives relevance to evidence disclosing motive, purpose, cause, occasion, etc. for its admissibility, it also rules out those which are irrelevant to the facts in issue. An irrelevant evidence will never get admissibility. Same ambiguity persists for an evidence which has relevance to the fact in issue in the case but does not get admitted.automatically. If the evidence is not admitted, it is not considered for the case in the process. However, after the evidence is admitted, the courts discuss and decide upon its weight for the purpose of delivering a case. In the case of ‘Davies v. DPP’^[4], it was held that the admissible evidence which is relevant is capable of corroborating as well. Despite these general rules, there are exceptions where even irrelevant facts are admitted as evidence. ‘Relevant to prove guilty’ and ‘capable of corroborating’ are two unequal phrases. Section 11 of the Indian Evidence Act, 1872 talks about the cases in which the otherwise seemingly irrelevant facts are admitted as relevant facts. There are two conditions for such an exception to be made; firstly, if the fact is inconsistent and secondly, despite this inconsistency, they make the issues in fact highly probable or improbable^[5].

Relevancy v. Admissibility

In many Indian as well as English cases, this has always been a voracious task to make a clear distinction between relevancy and admissibility. The rules of admissibility, in fact, are related to the relevancy of evidence. The terms may sound synonymous to a great extent. However, all relevant facts are not admissible. Also, there are distinctions between the legal implication of both the terms[6]. The relevancy of any fact does not ipso facto make it admissible. In fact, the question of admissibility is the one decided by the court of law. In the case of ‘Sris Chandra Nandy v. Rakhalananda’[7] Lord Atkin laid down that “ …it is not open for any judge to exercise a dispensing power, and admit evidence not admissible by the statute because to him it appears that the irregular evidence would throw light upon the issue..”. Section 136^[8] of the Indian Evidence Act, 1872 gives statutory discretion to a judge to admit any evidence if he deems it fit on the proofs of relevance given by the party proposing such facts to be relevant evidence. In another case ruled by the Gujarat High court ‘State of Gujarat v. Ashulal Nanji Bishnoi’^[9] it was held that admissibility and relevancy of facts relied on the court of law to decide. However, it does not erase the provision to record these facts despite their rejection from getting admitted on the basis of relevance. In other words, there is no specified provision that the facts laid down as irrelevant and inadmissible by the judge cannot be placed on record. But, on the other hand, mere admissibility does not prove the relevancy of a fact. After the admissibility, it is the weight of each fact that determines its probative value which in the case is decided circumstantially by the court of law in each case. Despite the general rules, there are certain specific distinctions between the otherwise synonymously used terms. Also known as Logical relevance, relevant facts are the ones tested on the basis of logic, knowledge, experience or common sense. On the other hand, also known as legally relevant, admissibility depends on relevant facts of high probative value and how it affects the facts in issue for rendering justice. Thus, we can say the thin line between the two is that of logic and law. While relevancy is about logic, admissibility is about the law. Also, while it is the lawyers who decide the relevancy of any fact to the factum probandum, it is the court of law which decides upon the final admissibility of any fact, be it relevant or irrelevant. Lastly, we can conclude that every admissible fact is relevant to a fact in issue; however, such is not the case with all relevant facts since not all relevant facts are admissible in the court of law.

Which facts are admissible?

It now becomes important to us to know about the facts which are exceptions to the theory of relevancy. The facts which are relevant yet inadmissible and the facts which are irrelevant yet admissible. As mentioned earlier, the relevancy has an effect on its admissibility in the court of law. However, it is not necessary that all relevant facts are admitted. For example, private spousal communication during their marriage, or the privileged communication like that between a lawyer and his/her client, or a confession made to a police officer being in custody, etc. despite being relevant to any fact in issue cannot be admitted in the court of law. Also, on the same hand, the questions asked in cross-examination of a witness’ credibility may not be relevant to the fact in issue, but despite it being admitted. In the case of ‘R.M. Malkani v. State of Maharashtra’[10] the apex court held that the very core of the criminal jurisprudence is to regard any accused innocent until proven guilty. Therefore, even if any fact is relevant to the fact in issue, if because of the rules of admissibility there is an unfair disadvantage to the accused, the court of law may reject its admission. A dying declaration made about the cause of death is treated as a relevant fact for admissibility despite the person making it is dead^[11]. Similarly, on the other hand, section 6 of the Indian Evidence Act, 1872^[12] restricts the admissibility of hearsay evidence. However, the exception is the Res Gestae principle. These are the statements despite being hearsay are admissible because of the immediacy with which they are made by a number of witnesses in concurrence to the events of a case. The rule for admissibility under the aforementioned section differs case to case only to give the judge the discretion to decide the relevance and reliability. And then there are conditions where otherwise irrelevant facts are admitted by virtue of section 11 of the concerning act. Thus, relevancy is one of the many factors leading to admissibility against any fact in issue, though it is somewhat more important to other factors.

Conclusion

Concluding this article, it is now justified to declare that relevancy is the test for admissibility. Also, there is no strict rule for such admissibility. Where an irrelevant fact may or not be admitted, there are exceptions even to the admissibility of relevant facts. Not every relevant fact is admitted, and not every irrelevant fact is inadmissible. Theory of Relevancy gets its operational start with the court of law accepting it for admission. However, non-admissibility of any fact irrespective of it being relevant or irrelevant does not render it ineligible to be stated on the record. And finally, it can be said that not all relevant facts are relevant but all admissible facts are relevant against the facts in issue.

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^[1] INDIAN EVIDENCE ACT, 1872  Section  3 – Interpretation clause.

^[2] Ram Jas v. Surendra Nath, AIR 1980 All 385.

^[3] DPP v. Kilbourne, 1973 AC 729.

^[4] Davies v. DPP, (1954) AC 378.

^[5] INDIAN EVIDENCE ACT, 1872  Section  11 – When facts not otherwise relevant become relevant.

^[6] Ram Bihari Yadav v. State of Bihar, (1998) 4 SCC 517.

^[7] Sris Chandra Nandy v. Rakhalananda, AIR 1941 PC 16.

^[8] INDIAN EVIDENCE ACT, 1872  Section  136 – Judge to decide as to admissibility of evidence

^[9] State of Gujarat v. Ashulal Nanji Bisnoi, (2002) 2 GCD 1488.

^[10] R.M. Malkani v. State of Maharashtra, (1973) 1 SCC 471.

^[11] INDIAN EVIDENCE ACT, 1872  Section  32 – Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.

^[12] INDIAN EVIDENCE ACT, 1872  Section  6 – Relevancy of facts forming part of same transaction.

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This post is written by Anushree Tadge, 3^rd year law student of ILS Law College, Pune, she tries to explain briefly what a test identification parade is and how it makes a significant contribution in the criminal law system in India.

INTRODUCTION TO TEST IDENTIFICATION PARADE

In Criminal trials, the most important step to follow as soon as the accused is arrested is confirming whether the accused is really the ‘accused’ as far as the crime scene is concerned. This test is extremely popular and is used as a means to examine the accuracy of the witness’s ability to identify the suspect amongst other unknown persons. Test identification parade is an effective tool in the investigation and with the correct procedure, it can be made admissible as evidence in the courts (corroborative evidence), the purpose is mainly to test and improve the credibility of existing substantial evidence in the case.

PROVISIONS AND ADMISSIBILITY

Section 9 of the Indian Evidence Act allows identification of the accused by the process of Test Identification Parade as well as the proofs to be all admissible in the courtroom, now it has to be understood that this ‘test’ is not compulsory to be conducted, the section 54 (a) of The Code of Criminal Procedure grants the process to allow the suspected to be presented for a test identification parade.

Very interestingly, Article 20(3) of the Constitution of India states that no person should be forced to be a witness against his own self, such principle is not violated with the test identification parade, this means that appearing for a test identification parade does not necessarily mean giving testimony in the Court of Law.

Such type of parade conducted for the purpose of identification in the investigation cannot be considered as substantial evidence it rather is taken up as corroborative evidence to support other facts and circumstances found in the case and used in the arguments to frame the ‘accused’

PROCEDURE AND PRECAUTIONS 

Procedures: Most importantly, the parade should be held as soon as possible, so that the victim or the witness doesn’t forget about the details essential for identification, as soon as the suspect is arrested the parade should be conducted. Delays are not taken positively in such cases by the courts of law. The magistrate should accompany the police when a test identification parade is carried on. The identifier should identify in both, the test identification parade as well as in the court. Also, the procedure should also take into account that the accused does not know the witness or victim before the commission of the crime, and the identifier must have observed the person for some time so as to identify him/her later on and in a sufficiently lit area.

Precautions: The police should make sure that they leave the place in order to the identifier identifying the person properly without haste, after making the required necessary arrangements, Except for the magistrate and identifier, they are allowed to be in place. For accuracy of results, a similar person to the accused must be made present along with the others and accused in a test identification parade ( Ratio minimum 1:5 and 1:10 ). Other witnesses are not allowed to be present during the process of one parade and are supposed to be kept far away from the identification parade. Also, precautions have to be taken that the accused changes positions after every witness identification takes place. 

WHETHER TEST IDENTIFICATION PARADE IS NECESSARY OR NOT:

Test Identification is usually necessary when the disputes are concerned with that of the identity of the accused, in cases where the victim never saw the accused in his/her life before the incident. When the victim experiences the act of crime and can identify the accused, a test parade is to be conducted, usually, in such cases, victims can observe the criminal but identify him at a later stage. Even keeping this in mind, the parade should be held as soon as possible and that too with the presence of the magistrate.

Test identification is not required in cases where both witness and accused are acquainted with each other as they live nearby or even closer. Test identification is done to support the existing evidence and confirm the genuineness of the same.

Also, if any form of other evidence is brought to the Court’s attention which the court can safely rely on and in doing so no party will have the right to question or even initiate the parade then it will is not be considered as any substantial evidence and even if the test is not performed admissibility of evidence in court in court shall not be affected. 

CRITICAL ANALYSIS

The credibility of this kind of test by the identifier with respect to the test identification parade, the credibility of such test vary from situation to situation and case to case. Many a times if the victim comes in a face to face contact may register a deep scar in the mind of the victim, they might remember the person and the act committed, place and even number of people involved. Factors like if the act was done during the day time? If it was in an open place, was there enough lighting for the identifier? All come into consideration…

In incidents where people covered their faces, the identification is not considered to be suitable as the identifier cannot identify the person, as well as in a situation where there lies a very huge difference in the commission of the act and the test to be conducted, it is generally the view of the court that it will further decide whether the parade should be held or not depending on facts and circumstances of the matter. 

CASE REFERENCE

In Raju Manjhi v. State of Bihar, the landmark case, the court stressed upon how the holding of test identification parade was not mandatory. The judgement was delivered by Hon’ble Mr Justice N. V. Ramana and Hon’ble Mr. Justice Mohan Shantanagoudar. On a regular night of 1999, around twelve people below 26 years committed the act of robbery into the house of Kamdeo Singh After the investigation started, many witnesses were found, although, during the test identification parade, no identification was done by the witnesses. The Court held that the identification test is conducted in a particular case only to help and support the investigation officer in a more accurate way. Now there is no provision mentioned in the Criminal Procedure Code which paves way for the investigating agency to hold or give any right to the ‘accused’ to demand the parade by any chance. Any failure to hold the parade would not make the evidence to be inadmissible for identification in Court. 

IDENTIFICATION BY PHOTOGRAPH?

Section 22 of the TADA- Terrorist and Disruptive Activities (Prevention) Act, 1987 states that: If a particular person is proclaimed to be the offender in any terrorist case, the evidence related to his identification by any witnesses on the basis of a photograph shall be as binding as the evidence of the parade.

IDENTIFICATION BY VOICE?

In the case of, Mohan Singh v. State of Bihar, it was held that identification of the accused by his/her voice was reliable as prior to the happening of the incident, the witness has had some kind of acquaintance with the accused. 

CONCLUSION

Since the procedure of test identification parade in India is already a sidetracked one and it does not even amount to substantive evidence, it’s an effect in the case proceedings is only as much as a ‘dot connector’. But it is strongly recommended to police officers that procedures regarding the parade and the specific course of any action to the investigating authorities must be clearly explained. The government should increase the number of features for more effectively conducting the test identification parade, places should be allotted, tinted windows, better interrogation, and facilities so that concerned persons can see what’s happening instead of only the magistrate, etc. For over a century now, test identification parades have been active in India, and they significantly contribute and help the investigation faster and solve the cases in a better and faster way.

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Nikhilesh Koundinya is a student of Symbiosis Law School, Pune. In this article, he has discussed the legal basis for a lockdown. He has examined the Epidemic Diseases Act and the Disaster Management Act at length with regards to the topic. To conclude he has looked at the factors to be improved so that we can better prepare for the next pandemic.

INTRODUCTION 

“Unprecedented events call for unprecedented moves”. This statement has been the entire basis of the lockdown which began on 24^th March 2020 and is still continuing. The lockdown began as an initiative to counteract the Corona Virus which was named as a global pandemic by the World Health Organization (WHO). Before the lockdown, the prime minister imposed a Janta curfew on the country where people were restricted from coming out of their homes and which gave a flavour of how the next few months will turn out to be. In this article, we are going to be examining the legality of imposing a lockdown. An interesting fact about the lockdown was that after about a century the Epidemic Diseases Act was initiated to counteract the virus and provide steps to be taken by the government to impose the lockdown. Another act that played a key role was the Disaster Management Act (DMA) of 2005. 

USE OF THE DISASTER MANAGEMENT ACT (DMA), 2005 

The DMA 2005 defines a disaster as: 

a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man-made causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area. 

According to this definition natural disasters such as earthquakes or tsunamis are included but instances such as epidemics or a virus breakthrough aren’t. This essentially means that the state couldn’t have imposed a lockdown under this definition. But the state classified the epidemic as a notified disaster which opens up the opportunity to classify it as a disaster and also provide assistance to the victims and states under the State Disaster Response Fund (SDRF). 

After announcing the lockdown, the government provided states with an action plan of how the lockdown would play out. This was done by the government pursuant to section 10 of the DMA which reads: 

The National Executive Committee shall assist the National Authority in the discharge of its functions and have the responsibility for implementing the policies and plans of the National Authority and ensure the compliance of directions issued by the Central Government for the purpose of disaster management in the country. The section also provides for the steps to be taken by the central government to handle the situation which are as follows: 

1. Act as the central agency for making disaster management pans and ensuring execution. 
2. Inform different ministries of the plan ahead 
3. Monitor the implementation of the plans etc. 

There are many more initiatives and the authority responsible for executing these actions is the National Executive Committee which will be headed by the secretary to the government of India who has administrative control over the disaster management branch. This will also include officers from different ministries of the government including water, sanitation etc. who are going to be affected during the time of a disaster. The plan of action on how the executive committee will function and their powers and responsibilities will be dictated by the central government. 

EPIDEMIC DISEASES ACT, 1897 

In a situation where there is no explicit law in place, the diseases act made the lockdown legal as per section 2-A of the said act. Section 2-A of the act reads: 

When the Central Government is satisfied that India or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease and that the ordinary provisions of the law for the time being in force are insufficient to prevent the outbreak of such disease or the spread thereof, the Central Government may take measures and prescribe regulations for the inspection of any ship or vessel leaving or arriving at any port in the territories to which this Act extends and for such detention thereof, or of any person intending to sail therein, or arriving thereby, as may be necessary.

Thus, the use of this act was extremely important with regards to the lockdown because as per this section there are two ingredients to be fulfilled

1. When the central government is satisfied that India is affected by an epidemic or a disease which cannot be controlled or which is spreading at a rapid pace. This was well satisfied as the Corona cases slowly started climbing in the middle of February. 
2. There was no law or provision in place to handle such a situation because the last epidemic of this scale had occurred a century ago which was popularly known as the Spanish flu. 

Hence with these two provisions being fulfilled the Epidemic Diseases Act, 1897 was used to impose the lockdown. 

CONSTITUTIONAL PERSPECTIVE 

There were many lawyers and jurists who pointed out that the term “Lockdown” has nowhere been defined under the Indian Law. Though there was no provision which defined this term the government was using the term as a means to restrict people’s freedom under article 19(1) of the constitution. But as seen above the imposition of the lockdown was under section 2-A of the diseases act which means there was a statutory basis for imposing the lockdown. 

PROBLEMS WITH LAW REVOLVING AROUND EPIDEMICS AND DISEASES 

The fundamental problem attached to any health emergency in the country is that the term “national calamity” has not been defined anywhere in any provision. There were efforts made by the government in 2001 to come up with a definition and insert it as a statutory provision but the committee responsible could not arrive at a decision. There is a growing need for this definition as it has been requested by the states a number of times. In fact, in 2013 when the Uttarakhand floods occurred the state government requested for enabling the provision. Another request was made in 2018 when the Kerala floods took place and the politicians in the government asked for the definition. Now the need has again risen for a definition and this should be the foremost objective of the government once the epidemic is resolved. 

Another aspect is to revamp laws that were made more than a century/decade ago. The Epidemic diseases act and the Disaster Management Act need some categorization of a national fund. They also need to take into consideration new steps to be performed once there is a virus outbreak. There needs to be specific laws in place to administer medical treatment on patients and to provide medical aid in the times of a crisis. 

“If all these steps are followed, we are looking at a situation where the world will live to see another day.”

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This article has been written by Ritika Sharma, pursuing B.A. LL.B from Vivekananda Institute of Professional Studies, GGSIPU, Delhi. In this article, the concepts of absolute liability and strict liability has been discussed along with the differences of the same.

INTRODUCTION

The law of tort has been originated from the whole concept of English Common law. It has its roots within the same. The law of torts is actually the civil wrong which leads to civil damages.  Since this law is not codified, it becomes important to rely upon the precedents and jurisprudence in order to understand these principles. There have been numerous notions which have been confusing and require a deep and clear understanding. The general rule of tort liability is that the person who causes damage should pay and should compensate. In some cases, the liability is raised on the third parties as well.

However, most of the principles of the law of torts originate from English common law while Indian courts have been successful in modifying the same to meet basic requirements. The two principles of absolute and strict liability are the ones which levy liabilities on the industrial and business aspects when there are commercial activities which actually cause the damages to the public.

STRICT LIABILITY

The rule of a Strict liability provides that if there is any commercial activity which can prove to be harmful; the same should not be carried on. The liability arises even when all necessary and essential precautions are being taken in order to prevent the damage.

The Strict liability is not just a concept but it is actually an imposition of liability on a party without a finding of fault and claimant need only prove that the tort occurred and that the defendant was responsible. The law of torts implies the strict liability rule to such situations wherein the conditions seem to be inherently dangerous.

Under the strict liability rule, the law makes people pay compensation for damages even if they are not at fault. In other words, people have to pay compensation to victims even if they took all the necessary precautions and infect permissions allowing such activities often include this principle as a pre-condition.

In the leading case of Rylands v. Fletcher, the Rule of Strict liability originated. The defendant owned a mill and to improve the supply of the water, he arranged a reservoir over there. The water escaped and damaged the mine of the plaintiff. The court disagreed upon the argument that the defendant was not at fault and explained the rule of strict liability. It said that when somebody keeps something on his property for his benefit, it should not escape and in case it escapes, the owner of that thing must compensate the victim even if he was not negligent.

In the case of the Meghalaya Energy Corporation v. Shri Sukendra Sangma, the court did not recognize the rule of strict and absolute liability in case of this enterprise which was engaged in hazardous and dangerous activity which operate vis-à-vis the tortious principle of strict liability under the rule in Rylands v. Fletcher.

ABSOLUTE LIABILITY

Absolute liability refers to a standard of legal liability which is found in tort and criminal law. In order to convict someone for an ordinary crime, a person should not only have to commit a criminal action but it is required to have a deliberate intention which is mens rea. A company is required not to engage in such activities which can prove to be extremely hazardous. In such cases,  this type of company or any person engaging in such activity have to pay compensation as a mandatory remedy, whether or not such disaster was caused by its negligence.

The Supreme Court, in the M.C. Mehta vs Union of India, found that the principle of strict liability is inadequate in order to protect the rights of citizens and it replaced it with the principle of absolute liability principle. The incident of leakage of Oleum gas from a fertilizer plant of Shriram Food and Fertilisers Ltd. complex at Delhi caused irreparable damage to several people and the due to the prevalence of the concept of absolute liability, there was no defence which was provided to them. Article 21 of the Constitution declares that no person shall be deprived of his life or personal liberty except according to procedure established by law and this specific right is available to both citizens and non-citizens and hence the court wanted corporations to be made fully liable for future undeserved suffering of innocent citizens and held that a hazardous enterprise has an absolute non-delegable duty to the community.

In the case of Union Carbide Company vs. Union of India, which is popularly known as Bhopal Gas leak Tragedy, the Supreme Court held that Union Carbide Corporation, currently owned by Dow Chemical Co, was liable to pay compensation to the victims of the 1984 Bhopal gas tragedy and the curative petition was also denied.

THE DIFFERENCE

The distinction is clear between strict and absolute liability and was clearly mentioned by the Supreme Court in M.C. Mehta v. Union of India, where the court made a summarization as follows:

• Only those enterprises shall be held liable, in absolute liability, which are involved in hazardous or the activities which are inherently.
• The very escape of a dangerous thing from the person’s own land is not necessary. Absolute liability is applicable to those injured within the premise and outside the premise and the rule of Absolute liability does not have any exceptions, unlike the rule of Strict Liability.
• The rule has been elaborated keeping in mind the case of Rylands v. Fletcher as it only applies only to the non-natural use of land, but absolute liability applies even to the natural use of land and if an individual tends to use a dangerous substance and if such substance escapes he shall be liable even though he has taken proper care.
• The extent of damages actually depends upon the very magnitude and financial capability of the corporation It was also stated by the Supreme Court that the enterprise should be held to be under an “obligation to ensure that the hazardous or inherently dangerous activities in which it is engaged must be conducted with the highest standards of safety and security and if any harm results on account of such negligent activity, the enterprise or the institute must be held absolutely liable to compensate”.

REFERENCES

• Franklin, Mark, Tort Law and Alternatives: Cases and Materials, University Casebook Series, ISBN-13: 978-1634593007
• Gilead, Israel, On the Transformation of Economic Analysis of Tort Law, Journal of European Tort Law, Issue 3, 2017; Hebrew University of Jerusalem Legal Research Paper No. 17-26
• Ryland v. Fletcher, (1868) LR 3 HL 330
• M.C. Mehta vs Union of India, 1987 SCR (1) 819
• Union Carbide Company vs. Union of India, (AIR 1987 SC 1086) 
• P. S. Atchuthen Pillai, The Law of Tort, Eastern Book Co, 8 Ed, 1987 [1]
• Ratanlal & Dhirajlal, The Law of Torts, Butterworths

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This article is authored by Pankhuri Pankaj, a 2nd year student pursuing her BA-LLB degree from Vivekananda Institute of Professional Studies. This article summarises certain key provisions of the Memorandum and Articles of Association under the Companies Act and is qualified in its entirety by reference to the Companies Act, 2013.

Memorandum of Association of a Company

The Memorandum of association of a company, or the MOA, is a document which forms the charter of the company and defines the scope of its activities. According to Section 2(56) of the Companies Act, 2013, a “memorandum” means the originally framed memorandum of association of a company or as altered from time to time in pursuance of any previous company law or of this Act. The Memorandum of Association is basically the foundation on which a company is built and it can be defined as the constitution of the company which lays down the scopes and powers of the company. It contains rules regarding the capital structure, the liability of the members, the objects clause, and other important matters of the company, and basically it delimits the area beyond which the company cannot go, hence, the company cannot depart from the memorandum and if done so, the act will be ultra vires the company and void.

A Memorandum of Association of a company is supposed to be a public document, as defined under Section 399 of the Companies Act, 2013, to make it available for any person who enters into a contract with the company. 

What does a Memorandum of Association Contain?

Section 4 of the Companies Act, 2013, illustrates what a Memorandum of Association shall contain, like:

1. The Name Clause, which lays down that in the case of a public limited company the last word of the company shall be “Limited”, and for a private limited company it will be “Private Limited”.
2. The Situation clause which would deal with the state in which the registered office of the company is to be situated.
3. The Object clause would illustrate the object for which the company is proposed to be incorporated and any matter necessary in furtherance thereof.
4. The Liability clause which defines, whether limited or unlimited, the liability of the members of the company, and also state:

(i) the liability of the members to be limited to the amount paid, if any, on the shares held by them, in the case of a company limited by shares;

(ii) the amount to which each member undertakes to contribute in the case of a company limited by guarantee.

1. The Capital clause implies the amount of share capital with which the company is to be registered and the division thereof into shares of a fixed amount and the number of shares which the subscribers to the memorandum agree to subscribe which shall not be less than one share, and the number of shares each subscriber to the memorandum intends to take, indicated opposite his name.
2. The Association clause is the last clause and it specifies the desire of the subscriber to form a company.

FORMAT OF THE MEMORANDUM OF ASSOCIATION

Companies must draw their Memorandum of Association according to Section 4 of the Companies Act, 2013, in the form provided in Tables A-E in the First Schedule of the Act.

1. TABLE A is the form designated for the memorandum of association of a company limited by shares.
2. TABLE B is the form for the memorandum of association of a company limited by guarantee and not having a share capital.
3. TABLE C is the form for the memorandum of association of a company limited by guarantee and having a share capital.
4. TABLE D lays down the form for the memorandum of association of an unlimited company.
5. TABLE E is the form for the memorandum of association of an unlimited company and having a share capital.

PRINTING AND SIGNING OF MEMORANDUM OF ASSOCIATION

Section 15 of the Companies Act lays down the memorandum of association should be: printed, divided into paragraphs and numbered consecutively, and it should be signed by seven members in case of a private company.

The memorandum of association should be signed by every member and their address, occupation, and description should be there in the presence of at least one witness, who also must attest his signature and add his address, occupation, and description.

A company can subscribe to a memorandum of Association through its agent. A minor cannot sign an MOA, however, the guardian of the minor if subscribes to the MOA on his/her behalf and the person will be deemed to have subscribed in his personal capacity.

In addition to all the facts stated above, a company is eligible to attach additional provisions if required along with the mandatory ones.

ARTICLES OF ASSOCIATION OF A COMPANY

According to Section 2(5) of the Companies Act, 2013, the term “articles” means the articles of association of a company as originally framed or as altered from time to time or applied in pursuance of any previous company law or of this Act. Section 5 of this act defines “articles of association” and says that the articles of a company shall contain the management regulations of the company and shall also contain matters, as may be prescribed. But it shall not prevent a company from including additional matters in its articles if it understands them to be necessary for management. 

In basic words, the Articles of Association of a company can be understood as the rule book of the company’s working which regulates the management and powers of the company. For the internal management, they describe rules, regulations, by-laws, and hold high significance in the life of a company. It is also responsible for describing various details about the company’s inner workings like manner of making calls, director’s/employees qualifications, power and duties of the auditors, forfeiture of shares and a lot more.

FORMS OF ARTICLES OF ASSOCIATION

Under Section 30 of the Companies Act, model forms of Articles have been laid down.  In schedule I of the section from Table F-J model forms of Article association can be found.

1. Table F deals with the form for Articles of Association of a company limited by shares.
2. TABLE G  illustrates forms for the Article of Association of a company limited by guarantee and having a share capital.
3. TABLE H lays down the form for Articles of Association of a company limited by guarantee and not having a share capital.
4. TABLE I  deals with the form for Articles of Association of an unlimited company and having a share capital.
5. TABLE J  includes the form for Articles of Association of an unlimited company and not having a share capital.

A company need not adopt all or any of the regulations contained in the model articles applicable to such company.

CONTENT OF ARTICLES OF ASSOCIATION

The articles of association of different companies, according to Companies Act, 2013, are supposed to be framed in the prescribed form, since the model of articles is different for the different type of companies like Limited by shares, companies limited by guarantee having share capital and the ones not having a share capital, and unlimited company having share capital and the ones not having a share capital.

For a public-private limited company the articles of association usually include Number and value of shares, share capital, a variation of shareholders’ rights, payment of a commission, share certificate, preliminary contracts (if any), loan on shares, call on shares, transfer and transmission of shares, forfeiture of shares, share warrants, alteration of capital, general meeting, voting rights of members, directors and their remunerations, secretary and manager, dividend and reserves, account and audit, and winding up.

The printing and signing of Articles of the association are the same as that of Memorandum of Association.

In addition to all the facts stated above, the Articles of Association also establish a contract. This contract can exist between the members and also between the members and the company. This contract established governs the ordinary rights and obligations that are incidental to having membership in the company.

DIFFERENCE BETWEEN- MEMORANDUM OF ASSOCIATION AND ARTICLE OF ASSOCIATION

It is important to note that articles of association are in fact subordinates to the memorandum of association, which is the more dominant one, of a company. In Shyam Chand v. Calcutta Stock Exchange, it was held that any and all articles that happen to go further beyond the memorandum of association of the company will be marked ultra vires and void. Therefore, no article should go beyond the memorandum of association. 

If there’s a conflict between the memorandum of association and the articles of association of that company, then the memorandum of association will prevail. 

In case of any ambiguity regarding the details in the memorandum, it needs to be read along with the articles of association of that company.

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This article has been written by Yash Dodani, a first-year student at NALSAR University of Law. He has tried to explain the concepts of Judicial separation and Divorce and set a difference between these two.

INTRODUCTION

The Hindu Marriage in Indian society is considered as a sacrament. It means that the Hindu marriage by its creation can’t be revoked by any chance. It is considered in the Hindu Rituals that the Hindu Marriage is made by the god and can’t be broken by humans. Before the enactment of the Hindu Marriage Act, 1955 [here referred to as “Act”] there was no method available for either of the parties to get the marriage dissolved if there are any issues with the marriage. As soon as the Act passed, the parties have got the grounds under which they can file a petition of either divorce or Judicial separation. The 1076 Amendment in the Act makes the grounds for judicial separation and divorce common. However, these pleas are not the same. There is a substantial difference between these two which I will discuss in the coming parts.

Read: Hindu Marriage: Is it a Sacrament or a Civil Contract

Meaning of Judicial Separation

When the parties to the marriage want to live separate from each other legally, despite being legally married. They file a plea under section – 10 of the Hindu Marriage Act by which they can formalize a de facto separation while remaining legally married. Upon approval of the plea filed, the couple is said to be ‘judicially separated’. This legal process is called Judicial Separation. Upon which they are no longer required to fulfil conjugal rights. There are however some obligations that need to be fulfilled. Either party is not allowed to remarry during the time of such separation. If they do so, they can be booked under section 494 of the IPC for adultery. A time of one year is given to the parties to resolve their issues if they can. In other words, the time is given in order to get a settlement done. 

There are various grounds available to parties under section 13[1] of the Act to file a plea of judicial separation which are same as divorce as stated above.

• Adultery:  if the spouse has voluntary sexual intercourse with any other person other then his/her spouse, he/she can apply for judicial separation.
• Cruelty: when any spouse after the marriage is treating another spouse with harsh nature. The courts are left upon to decide the cruelty.
• Desertion: if the party has left the household of husband, without having reasonable ground for a continuous period of 2 years just before the presentation of the petition.
• Conversion: if either of the spouses has converted and changed his/her religion, then this ground may apply.
• Insanity: when after marriage, either of the party becomes/is of unsound mind, the petition of judicial separation can be filed.
• Renounced the World: if either of the party has renounced the world by voluntarily entering into a religious order.
• Has not been heard alive for seven years: if the spouse has not heard of the living of another, nither his/her close relatives have heard him/her for a period of seven years.

There are some other grounds which the Hindu Marriage Act has specified for only women. These are some grounds specified below:

• Husband has more then one wife living: if the husband has more then one wife at the time of marriage, the wife can file a petition of judicial separation and the husband can be booked under section 494, 495 of IPC.
• If the husband has in any time was convicted of rape, before or after the marriage.
• If the woman has married before the age of 15 years and wants to file a petition of judicial separation, she can do it before turning to the age of 18.

The courts in the petition of judicial separation can also deal with the question of maintenance. Provided that during the time of the separation, the wife is in such a condition that she can’t maintain herself and but for the maintenance by the husband, she will be in harsh condition.

This decision was given by the Punjab and Haryana High Court in the case of Sohan Lal v Kamlesh^[1] where the Court held that the maintenance can be given under the time of judicial separation where the wife is not able to maintain herself. 

Now, what if the parties have settled together and want to cohabit again? Since the judicial separation does not make the marriage dissolved, the parties can at any time in that separation or even after that, may file  a petition in the court asking to rescind the decree of judicial separation. However, the petition can only be filed once both the parties have consented to it and they really want to cohabit again.

The whole purpose of judicial separation is to give some time to parties to think over the decision of divorce if they want to take in the future. However, we have seen a conflict between the judicial separation and restitution of conjugal rights under section 9 of the Hindu Marriage Act. The courts have also sometimes converted the plea of judicial separation to restitution of conjugal rights. Irrespective of that the whole purpose of judicial separation is to give some time to the parties to reconcile their differences. It is a step before the petition of divorce.

Divorce

Divorce is a stage where the parties either decide by mutual consent or by the wrong of the other spouse, the marriage is dissolved. When the marriage is dissolved, the parties are permanently set away from the rights and obligations in the marriage. The parties are no longer be considered as husband and wife. However, they are allowed to marry again if they wish so.

There are three theories of divorce which are prevalent in the world. These are:

1. Fault Based theory: this divorce theory means when the party is seeking divorce due to wrong of other spouse say adultery, conversion, rape etc. In simple terms when one of the spouses does anything which is prohibited by law in terms of marriage, the affected party can file a petition for divorce. 
2. No-fault Theory: in this divorce, the petition is filed by the mutual consent of the parties. It is not necessary that there should be any wrong by either of the party.
3. Breakdown of Marriage Theory: this theory coverts that part where the marriage is so broken down that it can’t be resolved again and compulsory divorce will be given. This theory is not used in India often but the Supreme Court has used the power under Article 142 of the Constitution to allow such divorce.

Grounds for Divorce

The grounds for divorce are the same as that of judicial separation. The parties are free to file a petition for divorce if there is no resolution of differences between the husband and wife in the times of judicial separation. If the court has earlier ordered the decree of Restitution of Conjugal rights under section 9 of the Act, and if the parties do not comply with it wholely or are not able to cohabit, the court will upon the presentation of a petition of the divorce by either of the parties, will not look into any ground and allow divorce. If the court finds no merit in the petition of divorce or thinks that the act is not so grave that the parties are not likely to divorce, it can change the petition into Judicial separation from divorce even if the petition has not asked for it. In the case of Vimlesh v Prakash Chandra Sharma^[2] the court said, one instance of cruelty is not enough to file a petition of divorce and converted the petition to judicial separation so as to give some time to reconcile.  

Difference between Divorce and Judicial separation

Divorce	Judicial separation
It can be filed after one year of the marriage.	It can be filed at any time after the marriage.
Generally, a two-step process is used, first is the cool off period and then divorce is granted if nothing comes out good for the parties.	Only the grounds needs to be satisfied.
Permanent dissolution of marriage.	Temporary suspension of rights and obligations.
The persons can remarry after the procurement of decree of divorce.	The parties can’t remarry after the procurement of decree of judicial separation.
In divorce, the courts presume that there is no possibility of reconciliation.	There is a possibility of reconciliation.

Conclusion

I leave on you to determine whether the Hindu Marriage in current times a sacrament or a civil contract. There is a difference between divorce and Judicial separation which I discussed above.

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^[1] AIR 1984 P H 332

^[2] AIR 1992 All 260

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