This article has been written by Yash Dodani, a first-year student at NALSAR University of Law. He has tried to explain the similarities and differences between Law, Justice and Morality.

The three terms, viz, law, justice and morality are used interchangeably in terms of a common man. However, in legal terms, these terms are used differently. Although they have a similarity but they have differences too. We will try to understand the similarity and the differences. But let us first try to understand the meaning of all these terms separately to get more clarity in the parts where I will try to locate the similarity and the differences.

Law

What is Law?

Now when everyone will try to find the definition of the term Law, we will face a lot of problem to find a concrete definition. Law is that vast area where the definition is next to impossible to be accepted by the universe as a single definition. Law can be anything from the written statutes to the unwritten rules that govern the behaviour of the society from the ancient times. However, the Jurists have tried to find a working definition of the Law by taking something as a base. And that thing can be ‘nature’, ‘source’, ‘effects’ etc.

The society plays a major role in shaping of the law. Laws can’t be made against the will of the society. If any law is made against the society, the society will resist the law and will try to disobey it. The laws are made by the society, and the law govern the society in the sense that the law tells the society what they should do and should not do as a part of society. The society also acts as a part of the law, mostly in the unwritten manner. There are various things which we should do according to the rules of society, and if we don’t do so, the society will look down to us. For example – respecting the elders is an unwritten rule, which is not told by any law but told to us by the society. 

Law is a social science which runs by the society. The law of any state cannot be rigid. It is because of the social changes by the time. There can be one offence at a particular time or place, but after some time, may it be a no offence? If the law is so rigid that it can’t accommodate itself with the changing society, that law is bad. If the law is so changing, there can’t be any concrete definition of the law. Hence the law can’t be defined by a single definition. To define law the analysis of various legal concepts against various disciplines like sociology, political science, history, psychology, economics is needed to be done with the element of logic and practicality, to meet the ends of justice.

Justice

The justice is a very age-old concept in the society. It can be done through law or without the law. When I say without the law, it means that justice can be administered without a law. The justice can be administered under the general principles of giving justice which are independent of the law. Every person is expected to live peacefully. Without the justice an orderly society is unthinkable. These lines were said by Salmond. Justice come up with rights, duties and equity which then after takes the shape of laws.

The justice ensures that there is a uniformity in the interpretation of the law [if any] and in absence, do justice to the innocent party in whatever way feels suitable. it expects everyone to be Impartial and just to others as well.

Justice in the Modern society

The modern law concept of justice is called as ‘Justice according to Law’. It implies that justice can be given without law as well. As various prominent authors have called it as ‘Rule of Law’. It also means that no one is above law. Law is the supreme rule in the modern society.

Civil Justice

The civil justice system involves the protection of rights in the first place and not the punishment. Just to give some sort of compensation, the court orders to give some amount of damages to the innocent parties. This ensures that they will refrain from committing the same wrong again.

Criminal Justice

The main aim of the criminal justice is to punish the offender. The crime is so harsh that if the offender is just asked to compensate the innocent party, it will not ensure that people will not commit the crime again and again.

There are various types of theories of punishment which were/are used by the courts in administrating justice and to reduce the crime.
1.Deterrent Theory
2.Preventive Theory
3.Reformative theory
4.Retributive theory
These are the punishments which are used to punish the offender
(For details on theories, visit my article on Theories of Punishment)

Morality

In the ancient time, there was no distinction between Law Justice and morality. In Hindu law, there were Smritis and Vedas. The Greeks in the name of ‘natural rights’ formulated a theoretical moral foundation of law. The Romans recognized moral laws based on ‘natural law’.  In middle age, churches came in power and Christian morals were considered as the basis of law.
The morals are nothing but established rules when the human life was made. It means that morals are the basic human rights. It also means that those abstract rights which are in the public interest.

The law derives its authorities from the supreme state and not the established morals. When the church was removed from the power, it was said that law and morals are different. Austin said in the 19th century that the law and morality are two different terms and the law has nothing to do with morality. But he being too positivist, forgot that there is a relation in the law and morals. But at the same time, they are not the same.

The Distinction between Law and Morals

Morals are not laws, but are an end in themselves. It is followed by the people because it helps in improving the character of an individual. After all, they are good to follow. There are acts which are morally correct but are wrong as per the law and vice versa. Morals are universal and are not affected by the state. Morals are more related to the individuals and not the group per se. Roscoe Pound said “ As to the application of moral principles and legal principles respectively, it is said that moral principles are of individual and relative application; they must be applied regarding circumstances and individuals, whereas legal rules are of general and absolute application”

S.No.	Law	Morals
1	Tries to make society an Ideal one, but is dynamic	Is an end in itself.
2	Related to the society and to make it ideal.	Related to regulate individuals.
3	The conduct is looked and punished.	They look into the motive to do act, that motive could be correct morally.
4	They are followed because the law is backed by sanctions.	They are followed just because it’s good for the individuals to follow.
5	State is responsible to enforce it.	Individuals are left upon to decide if they want to follow or not.

Relation between Law and Morals

There are indeed a lot of differences between the law and the morals, but it does not mean that there is no sort of similarity. They are very closely related to each other. The type of law will determine how important the morals are to that particular law.

• Morals are used to make the laws.
• Morals are used to test the positive laws.
• Morals as the end of the law.

Starting point of law

The law and morals have the same origin but have different developments throughout the time. There were common things between law and morality. The sanctions which were charged due to breaking of the law or the morals were the same. But after some time, the state thought that some things should have more sanctions and confided things, and this came out to be ‘law’.

The ruled which were for the ‘good’ of humanity but the state could not ensure its observance were left as they were. These are called ‘moral’. Thus, it could be said that law and morals have a common origin, but diverge in their development. Many rules are common to both of them such as NOT killing a person, NOT stealing. 

Queen v/s Dudley and Stephen’s Case: 14 Queens Bench Division 273 (1884)

This is a very leading case in the English Law. This case features the need/necessity to commit an act to save the life of shipments. The facts are very interesting and the reasoning of the court is equally good. The defendants, in this case, were travelling in a ship to reach a particular purpose. However, in the middle of the journey, there was a thunder broke out and they were stuck in the sea. They stuck in so long that they ate their whole food and there was nothing left for them after some time. It was so worse that they were trying to however live somehow. But after some time, there was nothing at all left. With them, there was a boy of about 17 years old. That boy was sick and the other members of the ship thought that he is young and sick and might die anytime. And then they killed him and ate his flash. When they reached the destination, the police arrested him and charged for murder. The defendants took the defence of necessity.

The court held that the person can’t take the life of another to save his own life and was considered as morals. But the court decreased the punishment from death to life imprisonment.

Mr X v/s Hospital Z (1998) 8 SCC 296

Another interesting case on the front of morals, where the court again brought the similarity between the morals and the law. The facts were that a person had HIV+ he was about to marry a girl. But the hospital authorities gave the information of him being HIV+ to the girl whom he was about to marry. The boy filed a case against the hospital authorities and claimed that they should not have revealed the information without the consent of the boy. The hospital authorities claimed that they have done this on the moral grounds and hence they should not be held liable.

The court here held that the hospital authorities were not liable because the right of Ms A to be informed about the safety of her life will override the right of Mr X’s to privacy. The court said that in the public interest, there cannot be upheld of individual rights as it will be against the morals and not always law should be considered. The following lines were said.

“As a human being, Ms. ‘Y’ must also enjoy, as she is entitled to, all the Human Rights available to any other human being. This is apart from, and, in addition to, the Fundamental Rights available to her under Article 21, which, as we have seen, guarantees “Right to Life” to every citizen of this country. This right would positively include the right to be told that a person, with whom she was proposed to be married, was the victim of a deadly disease, which was sexually communicable. Since “Right to Life” includes right to lead a healthy life to enjoy all faculties of the human body in their prime condition, the respondents, by their disclosure that the appellant was HIV (+), cannot be said to have, in any way, either violated the rule of confidentiality or the right of privacy. Moreover, where there is a clash of two Fundamental Rights, as in the instant case, namely, the appellant’s right to privacy as part of right to life and Ms. ‘Y’s right to lead a healthy life which is her Fundamental Right under Article 21, the RIGHT which would advance the public morality or public interest, would alone be enforced through the process of Court, for the reason that moral considerations cannot be kept at bay and the judges are not expected to sit as mute structures of clay, in the Hall, known as Court Room, but have to be sensitive, “in the sense that they must keep their fingers firmly upon the pulse of the accepted morality of the day”

Morals as a test of positive law

Morals can be used to check if the law is being more positive or not. If the law will not consider morals, it is very positive. But it is not that the positive laws will not be binding, laws are made to be binding on the people. In those laws where strict liability will be read, we can’t say that it will consider morals in determining the cases. Morals are used to test the extent to which laws are positive.

Conclusion

Hence the law justice and morals have a difference but at the same time are related to each other. Morals have often been considered the end of the law. Many jurists have defined law based on ‘Justice’. Thus, there is a relationship between law justice and morality. Most jurists say that the end of the law is to secure ‘justice. Justice has more or less been defined in the terms of ‘morals’. Thus, the law is used to give an idea of both morals and justice.

In modern terms, there is a lot of difference between the law and the morals, justice being the base of law. 

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Nikhilesh Koundinya is a student of Symbiosis Law School, Pune. In this article, he has discussed the constitutional validity of death penalty in India. He has mentioned case laws which paved the way for the death penalty in India. He has also highlighted the arguments for and against the death penalty. To conclude he has discussed the reliefs a person can seek once he is sentenced to the death penalty.

INTRODUCTION 

On March 20, 2020 at 5.30 AM the four rapists of the Nirbhaya case were hanged to death. This is because they had committed such a gruesome act that the court after 7 years held that they were fit for the highest punishment in the Indian legal system which is death penalty also known as capital punishment. Under the Indian Law hanging a person is the only form of death penalty. But under the Army act of 1950 even shooting a person is regarded as a death penalty. India is one of the 78 countries in the world that still follows the system of death penalty. According to a study by the National Law University of Delhi, 755 people have been hanged in Independent till now.[i] Coming to the death penalty as an offence, there are divided views amongst people on whether it should be valid or not: 

IS DEATH PENALTY A VALID PUNISHMENT OR NOT? 

1. Many people have questioned the notion of death penalty with regards to the clause of Right to Life under many constitutions of the world. The argument people favouring death penalty give is that, the pronouncement of capital punishment is given in the rarest of rare case and hence if you have murdered someone you should also be murdered. This essentially means that when you murder someone or commit such a gruesome act which shakes the conscience of a population or court you have lost your rights guaranteed to you as a human. Hence you should be given a death sentence. It is also believed that such an act restores the balance of the society. If a murderer kills and is not sentenced to death he may come out of jail and kill again. Hence the concept of violence will prevail in society. So, for the balance of society to be maintained death sentence is essential. 

• The people against death penalty have stated that the main aim of the court when pronouncing death penalty is to cause deterrence. But there is no deterrence caused in people because future criminals still commit the act irrespective of the judgment the court administers. The argument to this was first established in 1973 when Issac Ehrlich due to his research stated that for every inmate who was given the death penalty 7 people left the idea of committing murder. Essentially there was deterrence caused in people due to which they didn’t commit murder.[ii] Another professor named Ernest Van Den Hagg stated that the death penalty is liked to deter much more than any other punishment because people fear death the most. 

• There has also been an argument put forward which states that the death penalty deters the accused from committing the act again. This means that it incapacitates the person from ever committing the crime. It is believed that a person who has murdered once will murder again. Hence the death penalty acts as a punishment which not only deters but also administers as a punishment not allowing to accused to commit the act again. 

INDIAN POSITION REGARDING DEATH PENALTY 

In India the following offences are punishable with the death penalty: 

• Section 302[iii]– this section relates to punishment for murder. Under the ambit of murder, the accused may be punished to death penalty or life imprisonment. 
• If a person is committing robbery and, in the process, murders a person, he/she will be imprisoned for life or given the death penalty. 
• If any person commits a terrorist activity which leads to several deaths the persons committing such acts will be given the death penalty. A few cases to remember here are the death penalty pronounced on Ajmal Kasab and Muhammad Afzal. Both of these terrorists were hanged for committing terrorist activities in Mumbai and the parliament in Delhi. 
• If a person commits rape which leaves the victim under a vegetative state or causes the death of the victim, he/she can be given the death penalty. This rule stated under the Criminal Law (Amendment) Act, 2013 after the heinous Nirbhaya rape case which took place in Delhi. Also, if a person rapes a girl under 12 years he can be sentenced to death. This was held under the criminal law ordinance 2018 after the rape of an 8-year-old girl named Asifa Bano in Jammu and Kashmir. 
• Section 364A[iv]– according to this section if a person kidnaps someone and threatens to kill him/her and actually commits the threat he/she may be sentenced to a death penalty. 
• If a person commits the act of treason to wage war or cause mutiny in the country, he/she may be sentenced to death by the court. 

Having learnt the offences in which the court can pronounce the accused to death penalty we will now look at cases in India which have led the way in deciding the constitutionality of death penalty: 

The first challenge to the death penalty came in the form of Jagmohan Singh v State of Uttar Pradesh.[v] In this case, the question before the court was whether the death penalty was violative under article 14, 19 and 21 of the constitution. The court held that it wasn’t violative of these provisions as the death penalty was carried out with the procedure established by law. It also held that the judges made a decision to impose the death penalty or life imprisonment on the basis of the facts and circumstances of the case. 

The next challenge that came was in the form Maneka Gandhi v Union of India[vi] where the court had held that just because a law satisfied the requirement of one fundamental right, it was not exempt from operation within the scheme of other fundamental rights as well. Specifically, in order to be considered constitutional, a law needed to pass the test of Articles 14, 19, and 21 collectively. Further, this judgement asserted that any procedure established under Article 21 needed to be ‘fair, just and reasonable,’ and couldn’t be ‘fanciful, oppressive, and arbitrary.’ With this being the framework, the court made the landmark decision under Bachan Singh v State of Punjab[vii]. 

BACHAN SINGH V STATE OF PUNJAB 

In this case, Bachan Singh was sentenced to the death penalty for the murder of Durga Bhai, Veeran Bhai and Desa Singh. The main objective of the court was to find out whether the death penalty could be continued as a practice or was violative under article 14,19 and 21 of the constitution? 

Article 19 of the constitution

The main contention before the court was that the provision of the death penalty was against article 19 of the constitution because it took away all the freedoms enumerated under clause (1) of the said article. The court held that this was a wrong assumption as the said article was not absolute in nature. The rights under the said article could be restricted upon the discretion of the state and hence the state could restrict these articles in certain circumstances. Also, somebody’s enjoyment should not lead to restricting the other person from enjoying his/her rights. Hence the court held that the issue of article 19 was resolved due to these arguments. 

Article 21 of the constitution 

After Maneka Gandhi article 21 was interpreted in a way which stated that a person could be deprived of his life and personal liberty in accordance with fair, just and reasonable procedure established by law. This essentially meant that a constituent assembly could withhold the persons right through a fair and reasonable justification. Thus, the death penalty took away this right for punitive purposes. That means to set an example for others and cause deterrence the rights of the accused could be taken away.

Article 14 of the constitution 

The final contention was under article 14 of the constitution where the court held that it is a said principle that unequal’s must be treated unequally. Here due to committing the heinous and gruesome act the accused had lost the essence of being called a human because the act he committed shook the conscience of the court and the general public. Also, sometimes the judge may pronounce one person for life imprisonment and the other for the death penalty. This wasn’t violative of article 14 either as each one got punished depending upon the part, he played in the crime considering there wasn’t any common intention. Also, further judgements restricted the courts to apply the death penalty in only certain cases and certain circumstances and hence the process was per se not arbitrary. 

The main take away from this judgement was the fact that the judges pronounced that the punishment of the death penalty will only be awarded in the “rarest of rare cases.”

MACCHI SINGH V STATE OF PUNJAB 

Even after the Bachan Singh case had been settled the law on the death penalty wasn’t clear. The question on what constituted rarest or rare cases was still pending. Finally, in the case of Macchi Singh v State of Punjab[viii] the court held that there were five categories which needed to be examined before awarding a death sentence: 

1. Manner of commission of murder- when an act is done which is beyond heinous or are stated before shakes the confidence of the public and courts. For example, burning somebody’s house when they are in it, committing rape and then injuring the victim in her private parts etc. 
2. Motive– this is one of the most important aspects the court looks into when you are sentencing somebody to the death penalty. If the motive is based on meanness for example to inherit property or to betray one’s motherland. 
3. Anti-social nature of the crime- this refers to crimes committed against scheduled castes or tribes. This refers to a situation where the crime is committed due to social wrath. For example, honour killing or dowry death etc. 
4. Magnitude of the crime- this refers to how many people have been affected by the crime. Has the crime targeted a major population or has it targeted an isolated population of a particular caste or creed? 
5. Personality of the accused- another major thing which the courts examine is why the accused committed the crime. What is the personality of the accused and what are the circumstances in which he committed the crime? 

In the cases of Sher Singh v State of Punjab [ix]and Triveniben v State of Gujarat[x]the court held that death sentence is constitutionally valid after the judgement in Bachan Singh and should be accepted as the new law of the land. Also, there is nothing in the constitution which holds the death penalty as unconstitutional. 

RELIEF FROM DEATH PENALTY 

Article 72 of the constitution talks about a mercy petition which can be filed with the president of India for a pardon, reduction of sentence, changing or lowering the degree of punishment etc. this essentially means that after exhausting all other reliefs the accused can approach the president for a mercy petition. 

Article 161 of the constitution talks about respective states granting pardon to people. Here the governor has the same power as the president to grant pardon in cases where the state has control. 

CONCLUSION 

The law on death penalty is constitutionally valid but many say is not achieving the purpose it was promulgated for which was to cause deterrence in criminals. Others hold that it is an effective tool and many people are stopped from committing crimes as people are most afraid of death. This will always be a disputed aspect of law but I would like to conclude with a quote by JRR Tolkein: 

“Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgement.”

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[i] https://theprint.in/theprint-essential/rarest-of-rare-history-of-death-penalty-in-india-and-crimes-that-call-for-hanging/383658/

[ii] https://www.nber.org/papers/w0018.pdf

[iii] Section 302, Indian Penal Code, 1860 

[iv] Section 364 clause (a) of the Indian Penal Code, 1860

[v]  AIR 1973, SC 947

[vi] 1978 SCR (2) 621

[vii] 1980 CriLJ 636

[viii] AIR 1983, SC 957

[ix] AIR 1983, SC 365

[x] (1983) 2 SCC 277

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This article is written by Anurag Maharaj, student of law at Lloyd Law School, Greater Noida. I have tried to define the word ”Tort” and its ingredients in this article. 

INTRODUCTION

Tort is derived from Tortum which is a Latin word that means twisted act. Tort is a civil wrong. It is not a crime or a criminal offence. Some torts such as defamation, simple hurt etc. are crimes as well. Civil wrong implies that the remedy for the tortuous action will be available in a civil court and not a criminal court. 

It needs to be a legal duty which is violated. A violation means not obeying and violating a rule either by not doing something that the law allows you to do or by doing something that should not be done). 

Essential Ingredients of Tort 

The essential ingredients of tort are:

1.  Wrongful Act/ Wrongful Omission by Defendant

2. Legal Injury

3. Legal remedy 

1.Wrongful act

There must be an error or some act on the defendant’s part. An act or omission is incorrect if the individual claimed to be held responsible had a legal obligation to do so. Legal recognition should be granted of the specific act or omission. That shouldn’t be a legal or social fault. It may be intentionally or negligently committed.

Examples: Committing a trespass, defamation, false imprisonment etc.

An unjust act must be performed for a tort to occur. This may occur either by execution of the tort i.e. a wrongful act that is actually performed or by Omission i.e. the act that were meant to be done but were not done. 

Glasgow Corp. v. Taylor 1922 1AC 44

Glasgow Corporation was in charge of maintenance of a public park which contained a poisonous tree. A child who was playing in the park plucked a fruit from the poisonous tree and died upon consumption. It was held that Glasgow Corp. is liable for tort because of their wrongful omission of not cutting off that tree, or erecting a fence or a warning to dissuade or adequately warn the public about the poisonous tree. 

Christie v. Davey 1893 1Ch. 316

Christie and Davey were neighbours. Christie used to teach music at her home which used to annoy Davey. Davey started banging on the walls of Christie’s house and behaved abusively and tormented the students and did not allow classes to function. It was held that actions of Davey were tortuous and the same were ordered to be stopped by an injunction 

2. Legal damage

“Damage” means the harm or injury that a person has suffered or is expected to suffer as a result of any wrongful act of another person. The difference between the terms “damage” and “damages” is that the damage refers to the loss suffered by someone while damages refer to the compensation awarded by the court to the victim for the losses suffered by him. 

There are two maxims that help us decide whether a defendant has a legitimate argument in tort law i.e. whether he can bring a person to court or not. They are: Injuria Sine Damnum and Damnum Sine Injuria 

Injuria Sine Damnum

Legal injury without actual damage. It is a tort which is maintainable for restitution by unliquidated damages in law. 

Ashby v. White 1703 2 Lord Raym 938

Voter was stopped from casting his vote by policeman. Even though the candidate who voter wanted to vote for won and there was no actual damage, yet the voter was held entitled to damages because he suffered a legal injury i.e. his right to vote was violated 

Bhim Singh vs State of J K AIR 1986

Plaintiff was an MLA and was wrongfully arrested while going to assembly session. He was not produced before a magistrate within the requisite period. It was held that this was the violation of his fundamental rights. Even though he was released later, he was awarded 50,000RS as exemplary damages by SC. 

Damnum sine Injuria

Damage without legal injury. For instance, a Sagar Ratna Restaurant suffered heavy losses when McDonalds outlet opened nearby. There was damage to the finances of Sagar Ratna, however no remedy lies. Since opening of McDonalds outlet causes no legal injury to Sagar Ratna. 

Gloucester Grammar School 1410 Y.B. 11 Hen. IV of 47

The defendant opened a school with cheaper fees next to plaintiff’s school which lead to economic losses to the plaintiff. However, the plaintiff had no tortious action because Damnum sine Injuria was applicable. There were damages caused but they did not constitute a legal injury.

Chesmore vs Richards 1879

Plaintiff had been drawing water from underground for the past 60 yrs. The defendant sunk a bore well on his land and drew huge quantity of water which diminished the water supply of the plaintiff. It was held that the defendant was not liable because he was only exercising his right and did not violate any right of the plaintiff 

3. Legal Remedy

The wrongdoing done by the defendant should come under the list of wrongs for which the remedy is a common-law action. A civil injury is a tort, but not all of them. An appeal for damages is the necessary cure for tort, but certain remedies may also be obtained, for example, in addition to damages in other instances of wrongs, or the complainant’s own intervention without going to trial, i.e. self-help 

Ubi Jus Ibi Remedium

The literal meaning of the maxim is where there is a wrong there is a remedy. Sardar Amarjit Singh Kalra v. Promod Gupta & Ors., The court held that the principle of ubi jus ibi remedium is accepted as a basic concept of the law. The Supreme Court also held that it is the court’s responsibility to protect and preserve the right of parties and to support them, rather than denying them relief. 

Conclusion

So, If the rights of a person are violated by another person then, he can claim for compensation from the wrongdoer for the loss that he suffered. This helps in respecting the rights of each and every person. 

There are three constituents of torts: 

Wrongful act: a wrongful act must have done on the defendant’s side. 

Legal damage: Due to the wrongful act, there must result in legal harm of another person.

Legal remedy: The wrongful act must be of such a kind that it should have a legal remedy in the form of a damages action. 

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This Article is written by Ritesha Das, Symbiosis Law School, Hyderabad. In this article, she has discussed the admissibility of oral and documentary evidence.

INTRODUCTION

The legal definition of evidence is neither static nor universal.  Medieval interpretation of evidence in the era of trials by ordeal would rather be unfamiliar to the contemporary sensibilities and there is no approach to evidence and facts that is accepted by all the legal frameworks of the modern world. As the saying goes, ‘A wise man puts his assurance in the evidence.’ Facts and evidences play a significant role in the judicial process. Like in the course of the trial, it is the testimony that determines whether or not the defendant is guilty. This evidence is broadly classified under two categories: Oral evidences and Documentary evidences. As the name suggests, the oral evidences involve the oral testimony of the witness whereas Documentary evidence refers to written documents or reports in written or recorded form created as testimony before the courts. Due to the surging malpractices, certain requirements have been defined during the submission of evidence before the court in order to preserve the justice to be offered to the perpetrator of the crime.

ORAL EVIDENCES

Over a period of time, the significance of the oral testimonies has been acknowledged in the Indian courts. The term ‘oral evidence’ simply means oral testimony of the witness after the undertaking of an oath. It has been introduced under the sphere of Section 3 of the Indian Evidence Act. It has been further elaborated under section 59 and 60 of the Indian Evidence Act. In order to foster the resolution of cases and to ensure that justice prevails, the courts have made a few modifications and made oral testimony an integral aspect of the criminal proceedings. Section 3 of the Indian Evidence Act explicitly states that oral evidence includes all the statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry.

The Courts in India are well acquainted with the fact that oral testimony is much less reliable than documentary evidence. But that can’t be a justification for the nullification or invalidation of the oral testimony. Courts in India are well acquainted with the fact that oral testimony is much less reliable than documentary evidence. But that this can in no way be a justification for the invalidation of oral testimony. In order to ensure that oral evidence is not abused or manipulated and does not obstruct the administration of justice, a range of requirements have been set out:

• Oral evidence must be aligned with the situation; it should be accurate and does not deviate through cross-examination. 
• In the case that oral evidence corresponds to a fact that has been seen, they must be the witness has witnessed the incident. The evidence of the witness should not be centred on the perspective of any other intermediary.
• The court has the discretion to order the correct documentation supporting the oral testimony would have to be collected and submitted.

The Information Technology Act (2013) and the Criminal Law (Amendment) Act (2013) are the two recent laws in the Indian legal sphere which further expanded the orbit of evidence. The Information Technology Act, 2000 elaborated the concept ‘evidence’ by incorporating electronic records as testimony that must be presented to the court. Evidence under the Criminal Law (Amendment) Act, 2013 was a victory for the women victims as their character could no longer be challenged or questioned in the shield of evidence.

DEBATE ON THE ADMISSIBILITY OF ORAL EVIDENCE

The maxim of ‘Falsus In Omnibus’, meaning ‘False in one thing is false in everything’ highlights the credibility of an oral statement according to which it is a blend of both truth and lie. But every adage entails certain exceptions which aim to strengthen the rules rather than contradicting it. Such exceptions can be applicable in few different cases, because they should not really deviate from the intent of the main rule if other considerations are taken into account, thereby further stressing that the rule is what must be enforced in the majority of circumstances. Hence, the application of the above maxim was discarded as it questioned the reliability and credibility of every oral testimonial. The case of Ugar Ahir V. State of Bihar[i] ruled that this adage is neither a rational rule of law nor a rule of practise on the ground that it barely comes across a witness whose testimony does not contain an element of truth or, at any rate, inflated fabrication or embellishment. It is the responsibility of the court to scrupulously analyze the evidence and to extract the elements of truth. The entire evidence of a witness can’t be discarded unless its elements are intrinsically mixed up, is impossible to separate the chaffs from the grain. 

ADMISSIBILITY OF TAPED EVIDENCE

The question of admissibility of evidence recorded in a tape had also emerged during the debate of the credibility of the oral evidences. This question was solved in the case of Pratap Singh v. State of Punjab in which the Supreme Court held that it can only be served as corroborative evidence (Indirect or supportive evidence) and is admissible only if the court is satisfied with the fact that it has not been tempered or dubbed. The term evidence shall equate to any assertion which the court can or can compel a witness to make before it in relation to the facts of the case under examination, that shall be referred to as oral evidence. The documents such as electronic records produced for scrutiny by the Court; such documentation shall be referred to as documentary proof or evidence. Accordingly, it is crystal clear from the above-mentioned provisions that the statute monitors the information stored on magnetic or electronic devices and considers it is a form of oral evidence which falls under the ambit of documentary evidence as per Section 3 of the Indian Evidence Act, which explicitly states that electronic records produced in the court fall under the sphere of documentary evidence. 

The tape-recorded conversation can be quickly wiped away by subsequent recording, and the substitution could be superimposed. However, this aspect should have an influence on the weight to be added to the testimony and not on its admissibility. In the end, if there is a well-founded intuition in a particular case that there is no evidence that the recording of the tape has been tampered with, it would be a rational reason for the court calling for real insight to its evidentiary value. In the case of Ram Singh v. Col. Ram Singh[ii], the following criteria have been set out by the Apex Court for the admissibility of tape recording conversation: 

1. The voice of the speaker must be correctly recorded by the maker of the record or by those who know his voice. Where the maker has refuted the voice, very tight concrete evidence would be needed to decide whether or not it was actually the speech of the speaker.
2. The authenticity of the tape record shall be decided by the maker of the record through acceptable evidences being direct or circumstantial.
3. Any possibility of tempering or deleting a part of a tape-recorded statement must be ruled out; otherwise, the said statement may be declared out of context and therefore inadmissible.
4. The assertion must be relevant in compliance with the rules of the Evidence Act.
5. The registered cassette must be properly sealed and kept in secure or official custody.
6.  The voice of the speaker should be clearly audible and not obscured or distorted by other sounds or disruptions.

THE EXCEPTION OF  HEARSAY RULE

Hearsay evidence can be described as ‘a statement except the one given by an individual during oral testimony in the proceedings,’ which is ‘inadmissible as evidence of any facts alleged. In simple words, hearsay evidence means the second-hand evidence which the witness had gathered from the medium or perspectives of an intermediary present in the concerned situation. A befitting example would be the evidence of a murder scene gathered by the witness by relying on the words of his neighbour. In the above case, the evidence of the witness is inadmissible unless he has witnessed the entire scene and has his own perception rather than relying on the statements of his neighbour. But if that neighbour witnessing the entire situation is presented as a witness, then his evidences will be admissible.  The rationale of the inadmissibility of the evidence circulated by an intermediary can be applied as an interpretation of equity and justice being centred on the assumptions questioning the reliability and credibility of the information to be extracted through the evidence due to the fact of being circulated by an intermediary.

A BRIEF HISTORY OF ORIGIN OF THE HEARSAY EVIDENCES

The origin of the oral evidence rule can be traced during the period of 1500s, reflecting a minor deviation from the manner of justice as it was solely based on a jury, which clearly permitted and condoned the method of collecting evidence from knowledgeable people that had not been called to court; and hence oral evidence has first acknowledged the mechanism of bringing witnesses to court in a positive light. At the beginning of the 17th century, there was a digression in the style of the trial of the witness which no longer stemmed on the evidence of the individual testifying. It might be borne out of his own opinion or from the pieces of information assembled from the third parties, as in the case of judges, but on the true insight of the facts rather than relying on his own perceptions or what he may have gathered from others. Thus, in the 18th century, the concept of evidence was gradually acknowledged and implemented strictly in legal trials and second-hand witnesses, or the testimonies of persons, not centred on their own observation or interpretation of the truth required to be proven, became inadmissible in the court of law. The same standards of common law had also been adopted by the British and were incorporated into the Indian legal system and can be found in Section 60 of the Indian Evidence Act, 1872.

EXCLUSION OF HEARSAY EVIDENCES

The hearsay evidences are considered inadmissible under the court of law due to the following reasons:

• Hearsay evidences are free from cross-examination due to which the authenticity and reliability of the assertions can’t be tested.
• The chances of fabrication is higher due to the depreciation of truth. Moreover, these evidences don’t involve the undertaking of any personal liability or oath by the original declarant.
• The possibility of substitution of weaker for stronger evidence is higher.
• Being protected from legal investigations, hearsay evidences are generally weak and fabricated.

• EXCEPTIONS OF THIS RULE
• Res gestae: This maxim simply means ‘things done, including words spoken that form part of the same transaction.’ An individual’s assertion can be confirmed by another individual who acts as a witness if the assertion is part of the transaction in question.
• Admission and acknowledgement: An extra-judicial confession or an acknowledgement which is claimed to be proven by the evidence of a witness to whom such admission or acknowledgement is rendered is admissible as an exception.
• Statement under section 32 of the Indian Evidence Act: According to this section, the assertions made by a person who can’t be presented before the court due to their death or ailment or incapability to testify or resulting in excessive duration or delay in the judgment of the court, is admissible as an exception to this rule.
• Evidence presented in the prior proceeding: The evidence presented by the witness in the trials can be used as a testimony for the validity or establishment of the facts set out in any subsequent proceedings between the same parties, in case the witness has died or is unavailable for any reason.
• Statement in public documents: The statements in the public record such as Parliament’s Acts, official books and records may be proven by only producing the document or the record rather than producing the draftsman before the court.

 DOCUMENTARY EVIDENCES

 Documentary evidence means any evidence introduced in the court in the form of documents or records, being distinct from the oral evidence. Documentary evidence is commonly intended to refer to texts on paper (such as invoices, contracts or wills), but the scope may extend to any medium through which data can be stored, such as photos or any medium that needs to be accessed by a mechanical device, such as tape recording or film or any printed form of digital evidence such as e-mails. The admissibility of the documentary evidence depends on the authenticity of the document laying the foundation of the evidence. 

One of the key points to be noted while submitting any evidence in the court is that the submission can only be made in the form of primary or secondary evidences. The term primary evidence means the original document presented in the court for the verification or inspection. Being the main source of evidence, it can be submitted without prior notice. Secondary evidence simply means alternative evidence submitted with a prior notice, which is admissible by the court under certain conditions. In the case of Ram Prasad V. Raghunandan Prasad[iii], the court held that the evidences must be submitted either in the form of a primary document or in the form of secondary evidences or oral accounts of the contents. The cardinal rule is to submit the best evidence under the court of law. Primary evidence has been regarded as the best evidence, whereas the admissibility of secondary evidences is questionable unless the originality and authenticity are proved.

ADMISSIBILITY OF PRIMARY EVIDENCES

As per section 62, primary evidence refers to the original document itself submitted for the scrutiny of the court. It is evidence that the law asks first. If the original document is submitted for assessment by the court, it shall be referred to as primary evidence. For instance, R draws a bill of exchange of Rs 10000 against S. But on the due date of the payment, S denies the acceptance of such bill due to which R filed a suit of recovery of the amount. If R submits the original document to the court proving the execution of the bill of exchange specifying the borrowed amount, that document will fall under primary evidence.

If the document is fragmented or duplicated in various copies for the execution of any agreement, each party retaining the same copies of the document can submit it as primary evidence. For example, R and S enter a contract. The written contract between the parties will be fragmented into two documents so that both the parties can retain the written document. In this case, both the copy of the documents is considered as primary evidence. If the document is divided and enforced in counterparts, each counterpart will serve as the primary evidence against the parties enforcing the document. The agreement or the document will fall under the enforcement in counterparts only if each instrument is signed by one party and forwarded to the other. The document will be primary evidence against the party enforcing it out but will be secondary evidence against the other party who did not execute it. 

If all the documents are printed in the same standardized or uniform process, each one of them will be regarded as the primary evidence of the content of the others. The copies of the common original cannot be regarded as primary evidence of the content of the original. In the case of Jeevanantham V. State through inspector of police[iv], the school certificate prepared on the basis of admission is the only secondary evidence and, as such, the school certificate prepared on the basis of the admission form cannot be acknowledged in evidence as primary evidence but only as secondary evidence in the absence of proof that the primary evidence has been lost.

If a number of documents are all made by one uniform process, as in the case of printing, each is primary evidence of the content of the rest. If they are all copies of a common original they are not primary evidence of the contents of the original. In the case of Jeevanantham V. State through inspector of police, the school certificate prepared on the basis of admission is the only secondary evidence and as such the school certificate prepared on the basis of admission form cannot be admitted in evidence as primary evidence but only as secondary evidence in the absence of the proof that the primary evidence was lost.

ADMISSIBILITY OF SECONDARY EVIDENCE

Secondary evidence means alternative evidence submitted with prior notice, the admissibility of which is subjected to certain conditions. Secondary evidences are defined under Section 63 of the Indian Evidence Act, according to which ‘secondary evidence means and includes: (1) Certified copies (2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies; (3) Copies made from or compared with the original; (4) Counterparts of documents as against the parties who did not execute them; (5) Oral accounts of the contents of a document given by some person who has himself seen it.[v]’

This section is detailed with respect to the forms of supplementary proof admissible under the Act. It is evident from the phrase “means and includes in this section” that the five clauses relating to secondary evidence are comprehensive. However, being alternative evidence, secondary evidences are not mechanically admissible unless an adequate justification for the non-submission of the original report or document is given.    

The authenticity of the authorized copies shall be presumed in compliance with s 79, but that of the other copies must be established. This testimony can be provided by bringing a witness to acknowledge that he has compared the copy submitted in court with the original one. The certified versions of money lender licenses are admissible in court.

The types of secondary evidences include: Certified copies, copies prepared by a mechanical process,  Counter foils, Photographs,  Xerox copy, Photostat copy, Carbon copy,  Types copy, Summary on a civil subject for the workshop, Tape records, Copies made from or compared with the original copy, Counterparts, Oral accounts, Registration copy, Unprobated will, Age certificate,  Voters list and  Newspaper report.

MODES OF CERTIFYING A DOCUMENT

The facts and details of private records or documents are verified either by primary or secondary evidence in the light of Sections 61 to 66, the authenticity is identified by the incorporation of evidence in accordance with Sections 67 to 73, or the validity of their contents is generally determined by independent, direct or circumstantial evidence. An accurate published document will only be acknowledged at the final hearing of the proceedings. It’s up to the party to justify a statement that they decide to rely on it. The authenticity or accuracy of the contents of the document must be proven by oral testimony and the details of the document must be determined through the introduction of primary or secondary testimony.

A document is generally considered to be proved and certified under the following three conditions: 

1. Proper execution and interpretation of the document, i.e. the writing or signature of the writer, if any, is shown.
2. Scrutinizing the contents of the document.
3. Establishing the authenticity of the contents of the document.

The Evidence Act differentiates between the ‘Private document’ and the ‘Public Document’ and the above-mentioned requirements for the verification of the document do not extend to the ‘Public Document’ due to certain grounds of special rules and presumptions set down by statute.

Execution and interpretation of the document

The verification of the signature or writing of the document is executed to light up the authenticity and genuineness of the document. The party submitting the document as evidence must have the handwriting or signature of the writer, verified by the writer himself under Section 67 of the Act or by any other party familiar with the handwriting in question under Section 47 of the Act. In addition, the signatory can himself acknowledge that he has signed or executed a document which dispenses with the evidence of that document under Section 58 of the Act. In addition, according to Section 73 of the Act, the court itself is empowered to evaluate the handwriting or signature in issue with the accepted ones approved by the court. Under other cases, as set out in Sections 79 to 90(A) of the Evidence Act, the court is allowed to assume that the signature of the author and the evidence itself is authentic. Thus, according to Section 79, the court can assume that authorized copies are genuine. A signed document or handwriting is often referred to as pure ‘formal testimony of a document’ because the testimony of the document does not inevitably contribute to authentication of the content of the document.

• Scrutinizing the contents of the document

The content of a document will normally be verified by the key evidence.’ However, if the party is not in a position to provide the primary evidence, then according to the grounds set out in Section 65 of the Act, the party is able to provide secondary evidence to support the substance of the text. The presentation of the Content as evidence is not equivalent to the authenticity of the contents. The distinction was drawn in the case of Om Prakash Berlia v. Unit Trust of India,[vi] where it was stated that the term ‘content of the document’ under the Evidence Act would signify only ‘what the document states and not the validity of what the document states,’ and that the meaning of the content of the document cannot be established merely by the submission of the document. For example, a letter is submitted as being written by ‘A’, comprising of a statement involving ‘B’ paying a sum of money to ‘C’ in his presence. If the ‘contents’ of the letter are proven, then it can be said that the letter was written by A. But that doesn’t mean B has paid that sum to C. Therefore, the ‘truthfulness and authenticity of a document’s contents’ must be proven precisely.

• Establishing the authenticity 

Section 67 of the Indian Evidence Act stipulates that personal knowledge must prove the truthfulness of the contents. The witness who was appointed by the party deciding to rely on a document must usually have personal knowledge of the document. Such witness, in other words, should be the author of the document. This is evidence under the purview of oral evidence laid down in Section 59 of the Indian Evidence Act. However, in the case of Bhima Tima Dhotre v. Pioneer Chemical Co[vii]., the court noted that in order to verify the document, it was not essential to call the author of the document because documentary evidence would be futile if the author had to be called in every case. It can, therefore, be said that the facts of the contents of the document must be established either by the author or by ‘the person who knows and comprehends the contents,’ i.e. the person who has personal knowledge of the document.

CONCLUSION

Oral admission is regarded as a testimony against the individual making the false argument which may not be binding in reality. Admissions duly verified are admissible testimony immaterial of the fact that the party making the statement stood in the Witness Box. In addition, admission is the best substantial evidence that an opposing party will rely on it. The value of admission of the evidence by the government is only significant and not absolute unless the party to which it is rendered has behaved and thereby altered its detriment. While oral testimony is of lesser significance than written evidence, it may be taken into account by the court with some corroboration. In a short statement, all oral and written testimony is presented by the parties. In the court of justice, the importance of documentary testimony is significantly higher than that of oral evidence. Because the statute also demands the best evidence, and oral testimony is evidence, which is information that is constrained to written or oral phrases. There are two angles of documentary evidence. Primary evidence is more credible and the correct testimony to be found by the court of law. In the absence of primary testimony, secondary testimony is submitted, indicating that the witnesses were provided on the basis of their own perspective, whereas under primary evidence, the original document is sent to the court of law for review. Direct testimony is the best key to show that it has been established. The documentary evidence eliminates and exempts oral testimony and prevails above oral evidence when presenting evidence as witnesses to the court of law. The party submitting the evidence is eligible for cross-examination to test its authenticity. Oral evidence can’t be replaced for documented evidence if there is a written record of the testimony of such crime events referred to under Section 91 as a written deposition, which is more probable and more accurate than oral evidence.

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[i]  Ugar Ahir V. State of Bihar,  AIR 1965 SC 277

[ii]  Ram Singh V. Col Ram Singh, 1985 SCR Supl. (2) 399

[iii]  Ram Prasad V. Raghunandan Prasad (1885) ILR 7 All 738

[iv]  S. Jeevanantham vs State through Inspector Of Police, 2004

[v]  S. 63, The Indian Evidence Act, 1872s

[vi]  Om Prakash Berlia v. Unit Trust of India, AIR 1983 Bom 1

[vii]  Bhima Tima Dhotre v. Pioneer Chemical Co.,  (1968) 70 BOMLR 683

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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 the concept of free consent is and why it is regarded as foundation stone of other Acts like Transfer of Property Act, Company Act, Family Laws etc.

Introduction to ‘Free Consent’

• ‘Consent’ as a word is heard very often by individuals around the globe, as the feeling of ‘individuality’ is given importance more and more, consent as a provision is also evolving.   Derived from the Merriam Webster dictionary, ‘Consent’ is explained as ‘compliance in or approval of what is done or proposed by another.’
• In simple words a voluntary agreement of one party to the proposal of others in order to reach or not reach the desired motive. Now even consents are of different types, these include implied, expressed, informed consent and unanimous consent. But, again for a person to provide consent, he/she should not be diagnosed with a mental disorder, age more than 18 years etc along with the major factor being the consent should be voluntary and not affected by any form of coercion. Fraud, undue influence.

‘Free Consent in the Indian Contract Act, 1872’

• Section 13 of the Indian Contract Act, 1872 (hereinafter referred to as Act) defines the term ‘Consent’ as Two or more persons are said to consent when they agree upon the same thing in the same sense.
• For example, suppose there are two parties in a contract, A and B. It was seen that there was some land and “A” put a proposal to sell. “B” after being made aware of this proposal, analysed that it was the perfect opportunity, agreed to it. In this case, both parties showed their consent.
• The principle of consensus-ad-idem is to be followed in contractual agreements.

• Section 14 of the Act states that Consent is said to be free if the following factors are satisfied:
• If the consent is free from coercion.
• If the contract is not done under any undue influence.
• If a contract is performed without any fraud.
• The contract should not complete with any misrepresentation.
• The contract should not be agreed to by mistake.
• If there is no consensus, moreover free consensus between parties is very vital for the contact to be binding and legitimate. In case there is no free consent, the voidability of the contract depends if the aggrieved party wishes to challenge the legality of the contract leading them to be ‘voidable’ in nature.

Coercion

• According to Section 15, it is the committing or threatening to perform, any act that is forbidden by the Indian Penal Code, 1860; or (ii) the unlawful detainment or threatening to do the same of any property, to the prejudice of any particular person, with the intention of leading any individual to enter into an agreement.
• In the famous case of Ranganayakamma Vs. Alwar Setti (1889), A Hindu Widow of 13 years, was coerced into adopting a boy under the threat of not allowing cremation of her husband’s death. Following which, the widow feared and adopted the boy. Later she even applied for cancellation of the adoption. It was held that the adoption was voidable at her option as her consent was not free it was rather obtained by coercion is an offence under Sec 297 of the Indian Penal Code.
• Now for cases where coercion is obtained by threats like ‘filing a suit’, it will also fall under the same category, because it is explicitly stated as an offence by the Indian Penal Code. In another interesting case of Ammiraju v. Seshamma, the issue was put forth whether ‘threat to commit suicide’ was a punishable offence? The Court ruled otherwise and put forth that such kind of coercion was not punishable by the IPC,1860.

Undue Influence

• The second factor which makes ‘consent’ of particular cases to be compromised is Undue Influence. Section 16 (i) of the Act, defines undue influence as to where if the relationship existing between the parties are of such nature that one of the parties is in a superior position or can dominate the will of the other easily and actually uses that position to obtain an unfair benefit over the other person or force him/her to act particularly in a contract is ‘Undue Influence’.
• Section 16 (2) of the Act states that a person is deemed to be in a position to dominate the will of another where:
• He holds a real or some apparent authority over the other person. For e.g. Master and Servant
• There exists a fiduciary relationship based on trust and confidence for e.g. guardian and ward
• Contract with a person experiencing mental distress/ disorder/ weak intelligence/ illiterates etc.
• The burden of proof lies on the party at whose end the contract seems voidable, there has to be compulsory proving of the fact that there existed a relationship where one party could dominate another and the party actually used such position to obtain an unfair advantage.

Fraud

• The third way by which consent is unfree can be explained is Fraud. The term ‘fraud’ is defined in Section 17 of the Act as follows:
• “Fraud includes any of the acts committed by one of the parties in a contract or by anyone of his agents, with an intention to deceive the other party so as to lead him to enter into the contract:

i) the suggestion of a fact, that is not true,

ii) the active concealment i.e. hiding of a fact.

iii) making a promise without any actual intention of performing it;

iv) any other act in order to deceive; any act or omitting the law which especially shows it to be fraudulent.”

• A very interesting point to note is that the Section 17 says “Mere silence as far as facts are concerned are likely to affect the willingness of an individual to enter into a contract is not really fraud”. Although this rule has an exception to circumstances where there is a duty to speak and if the ‘contract is made in good faith.’

Misrepresentation

• A representation, when performed in a wrong manner, innocently or intentionally, is called ‘misrepresentation’.
• Misrepresentation should be made innocently, absolutely believing it to be true and without any intention of deceiving the other party.
• Misrepresentation should be pertinent to the facts of the case. A mere expression of one’s opinion is not stating of a fact. It should also be used in inducing the other party into entering the contract. Like all the other forms explained in this post, even misrepresentation is voidable at the part of the aggrieved party, he can challenge the contract to be null and void or ask for an honest performance of the same.
• However, under few circumstances the aggrieved party loses the right to rescind the contract, these are-
• If the truth could be discovered with ordinary diligence.
• If the consent is not actually induced due to misrepresentation.
• If the parties cannot be led back in such a way that they acquire their original positions.
• Even, after coming to know about misrepresentation if the party acts in such a manner that it shows it’s an affirmation to the contract, the party, in such case will automatically lose the right to rescind.

Mistake

• Mistake is an incorrect assumption turning into a belief concerning anything.
• Mistakes are of two kinds- Mistake of Law and Mistake of Fact.
• Mistake of law can be of two types further

(ii) mistake related to foreign laws

(i) mistake related to the law of the land

• A mistake of fact can also be divided into two –

(a) bilateral mistake.

(b) unilateral mistake.

• Bilateral mistake may relate to topics like the subject-matter where both parties are combinedly at fault.  Mistake of fact regarding subject-matter may be the existence of, the identity of, the title of, quantity of, quality of the subject-matter, or even its price. Such a mistake makes the Contract void.
• A unilateral mistake is when only one party is at fault by virtue of the assumption that there is the same sense of subject matters in both parties. For e.g. A wants to sell a horse but B thinks it’s a pony.

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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 position and powers of a Karta in a Hindu undivided family. Also, she has tried explaining the gender lacunas of the system. And in conclusion, she has tried engraving the gaps that need to be filled in the Karta system of the Hindus.

Hindu Undivided Family

Before knowing who a Karta is, we need to know what a Hindu undivided family stands for. The Hindu undivided family is considered a unique composition in the world since it continues even after the members are dead. A HUF consists of “all-male members descending lineally from a common male ancestor together with their mothers, wives or widows, unmarried daughters and even illegitimate children“[i]. Also, even though the Hindu Undivided Family does not have a legal existence, it is a recognized taxation unit.

Who is a Karta?

Under Mitakshara coparcenary, the coparcenary is limited to three generations of “Lineal Male descendants”. This coparcenary system is headed by the senior-most male member, earlier called the patriarch, and now termed as the ‘KARTA’ under the Hindu joint family.[ii] A Karta is made not based on selection by consent of the other family members, but by the rule of seniority.[iii] Thus, not anybody or everybody can be a Karta on his own. 

Legal Position of a Karta

The position of a Karta is sui generis.[iv] He is responsible to take care of the family and manage all the property related matters with due care. His relationship with the members is neither of an agent-principal[v], nor even of partners, but that of a trustee. However, only in cases of mala fide intentions can the decision of the Karta be challenged[vi]; otherwise, he does not hold any accountability to anyone personally.

The HUF has no legal identity, and thus it’s representative the Karta takes steps in his capacity to ensure the maintenance of the same. Therefore, the acts done by the Karta concerning the HUF are absolutely binding on all the members. He is thus justified in buying property, suing someone, or taking loans, or compromising on behalf of the HUF.

Who can be a Karta?

Generally, the senior-most male member of the family is the Karta of a joint Hindu family, in whose absence the next senior-most male member takes position. Also, no member but only a coparcener can become a Karta. Seniority and not consent is the factor to be the Karta of the family. However, a Karta can himself expressly resign or relinquish his position. But this doesn’t make his position temporary in any manner. He can never be disposed of on the ground of him being ill or unable to take care of family matters. 

Can a Junior member be a Karta?

In the presence of a senior male member, a junior can never be a Karta, except where the Karta is absent and the junior is selected with the consent of the other family members. However, in no condition can a junior member assume superiority over the senior male member.

What are the conditions in which the juniors can take over was answered in the infamous case of ‘Nopany Investments (P) Ltd. v. Santokh Singh (HUF)[vii]’. In the said case, a Karta residing outside India, gave his power of attorney to younger brother, who under the authority transferred evicted the tenants out of the family property to which the tenants refused on the ground that the younger brother was not the Karta and thus could not evict them. 

To this, the Hon’ble Supreme Court dismissed the tenants’ contentions and laid down five principles (conditions) where a junior could take over as the Karta. They are as follows: 

1.  if the senior member or the Karta is not available;
2. where the Karta relinquishes his right expressly or by necessary implication;
3. in the absence of the manager in exceptional and extraordinary circumstances such as distress or calamity affecting the whole family and for supporting the family;
4. in the absence of the father:

(a) whose whereabouts were not known, or

(b) who was away in a remote place due to compelling circumstances and his return within a reasonable time was unlikely or not anticipated.[viii]

After this judgment, it was laid down that once a junior member was made the new Karta or the representative of the Karta, he could take decisions on behalf of the family in the same capacity as the original Karta, and which were binding equally on the other coparceners. Also, to this taking over, outsiders cannot take objection in any situation.

Can Female members be a Karta?

Property and related laws, since time unknown, have always been male-centric and hardly treated women as independent and not subservient. The coparcenary is limited to three generations of lineal male descendants of the last holder of the property only. A wife under Hindu law has a right of maintenance out of her husband’s property, yet she is not a coparcener with him.[ix] A woman in a Hindu family was a mere dependent and could be nothing more.

The foremost discussion upon the status of Women as a coparcener was made in the parliamentary debates of the constituent assembly. While debating about the Hindu succession Code, it was originally decided to do away with the mitakshara coparcenary system. The idea was to abolish the son’s right by birth for inheritance and replace the same with the principle of succession. The conservative opinion suppressed the idea. The Madhya Bharat representative, Sita Ram S Jajoo, in fact, went on to state his reasons for the majority opposing the idea, i.e., “Here we feel the pinch because it touches our pockets. We male members of this house are in a huge majority. I do not wish that the tyranny of the majority may be imposed on the minority, the female members of this house.[x]” Thus, the same was rejected at the instance of the majority rejecting the acceptance of woman coparceners.

Thus, women in a Hindu joint family cannot be coparceners[xi], since it is assumed that the females invariably leave the father’s house and assume domestic and spiritual duties in their husband’s house.  A wife though, under Hindu law has a right of maintenance out of her husband’s property yet she is not a coparcener with him.[xii] Likewise, a widow of a deceased coparcener is not a coparcener, and therefore cannot be treated as a Karta of the family. However, the 2005 Amendment to the Hindu Succession Act[xiii] has given a daughter the status of a coparcener; their position as a Karta is still inadmissible. 

However, there are conditions when a woman can behest the position of a Karta. For example, in general, if the only adult male coparcener dies and there is no other male coparcener available at the instance or the one available is a minor, the duties of the Karta fall upon the woman of the house. In such conditions, she can be a manager as well a Karta for the Hindu undivided family, until and unless the minor male coparcener turns major, after which she gets dissolved of her Karta position. The reasoning behind such law is that women are not inherently coparceners in the property, and can enjoy their deceased husbands’ property to a limited extent.

What is important to note here is, a woman can be a manager but not the Karta. And thus, it is necessary to distinguish between the same. The position of a Hindu widow cannot get self-assumed by her disentitlement to be a coparcener in the Hindu Undivided Family of her husband. Regrettably, the amendment of the Hindu Succession Act in 2005 has not done much to appreciate the position of a woman in the Hindu Undivided Family. In the infamous cases like ‘Sujata Sharma v. Manu Gupta’[xiv] and ‘Shreya Vidyarthi v. Ashok Vidyarthi’[xv] the high courts and the Hon’ble Supreme Court respectively have held that daughters having equal coparcenary rights can be made the Karta irrespective of their marital status. However, other female members still await given equal Karta rights in a Hindu undivided family.

Powers of the Karta

Karta enjoys an immensely wide variety of powers when it comes to his position of managing all the family matters. His powers have a wider ambit than those of anyone else in the family. His position is honourable and unique. However, the powers vested in the position of the Karta are open to scrutiny only on the ground of prudence, “and prudence implies caution as well as foresight and excludes hasty, reckless and arbitrary conduct”[xvi]. The powers of any Karta include:

1.   Power of Management

A Karta is the manager of all family matters, thus making his powers absolute as far as management of the same is concerned.[xvii] Under Hindu law, a Karta has the power and duty to take actions which binds the family together. A Karta can ask the family members to give him all the accounts of the expenditure of family income. He has the power to manage the family income and property[xviii]. The coparceners are bound to obey the Karta, in whose absence the Karta can outcast the coparcener of the common property. In such cases, the coparcener has no remedy but to ask for separation of his share and live separately from the joint family.  Also, the Karta has the power to distribute resources amongst the member coparceners at his whims and fancies. He is under no obligation to be impartial to all the members. Instead, he can play favouritism and yet be out of any legal consequences against him. As far as the disposition of any contracts, sale of family property or expenditure of joint income is concerned, neither the members nor the court can direct the Karta to act in a certain way or another. It is the inherent managing power of the Karta to act on his terms.

2.   Right of Representation

Under the Hindu Law, the Karta of a Hindu joint family represents all the members of the family. For all formal, informal and even legal matters, it is the Karta in whose name all the proceedings shall take place. It is for this reason that the suits filed by and against the HUF are named in the representative capacity of the Karta.

Also, the judgment given in such suits is binding on all the members of the family, irrespective of their age.[xix] Also, since the Karta is not answerable to the actions he takes in pursuance of the management of family affairs, thus in such representative suits, neither can he be held responsible for being negligent towards the proceedings,[xx] nor can the judgment be set aside because if at all he was more vigilant the outcome would be in their favour.[xxi] However as held in the case of ‘Mirthubasini  v. Easwaramurthy and Ors.’[xxii], it is concluded that “as the head and ‘karta’ of a joint family, one has absolute power to represent his joint family”. 

3.   Power of receiving and spending family income

All members of the family working outside the family property are under the obligation to hand over their income collectively to the Karta. The Karta in lieu of his managerial duties has the right of collection and expenditure of the family income wherever he feels it deeming fit for. The Karta is not obligated to spend the funds in a certain manner. Also, it is through the Karta that funds are allotted to members as well as activities of the HUF. 

4.   Power of Alienation

Usually, the power of the Karta to alienate is limited and can be executed with the consent of other coparceners. However, there are three purposes for which if the alienation is made by the Karta, the transaction is held to be valid. These being, Legal necessity, the benefit of estate or religious obligations.[xxiii]

In the case of ‘Radhakrishnadas v. Kaluram’[xxiv] the Hon’ble Supreme court laid down five principles of valid alienation by Karta, which consisted of the following:

1. Powers of Karta are limited and qualified;
2. Karta makes alienation as a prudent man or a bona fide alignee;
3. Alignee bound to make a proper inquiry into borrowings of money;
4. Alignee needs to prove that the transaction was for a legal necessity;
5. Alignee is not obligated to prove that all the considerations paid to him were used for family maintenance or management.

However, in cases where the Karta alienates the property without the consent of the other coparceners, the act can be challenged in the court of law. Thus, any alienation made by the Karta is voidable at the option of any coparcener, provided that the burden of proof lies on the person who bought the property and not the Karta.

5.   Liability to take accounts

Usually, the Karta is not bound to disclose any accounts on how and where he spent the joint income. Since his actions are presumed to be made in the best interests of the HUF, a justification for his actions is deemed unnecessary. However, at the time of partition, he is supposed to discharge all valid accounts, which if found to be glitched will be reimbursed from the personal accounts of the Karta. 

6.   Power to Acknowledge and contract debts

Being the representative and manager of the HUF, the Karta has absolute power to acknowledge and contract the debts taken and given either by any member of the family or him personally on behalf of the family. Also, he has the power to pay off such debts and interests taken on behalf of the HUF. As far as the contracts are concerned, once taken by the Karta on behalf of the HUF, it becomes absolutely binding on the other coparceners.

7.   Power to settle family disputes

In case there is an inter-family dispute or a conflict between an outsider and any family member, the Karta has the power to refer such matters for arbitration, and the subsequent decision becomes binding on all the members.[xxv] Also, the Karta can take the initiative to settle the matter through a compromise on behalf of the members. He can also compromise a suit pending in court. 

However, in such compromises, a minor member can challenge the same under Rule 7 of Order XXXII which requires the approval of the court in compromises where one of the parties consists of a minor. Also, in cases where the Karta does not work bonafidely, it can be challenged during partition proceedings by the aggrieved coparcener.

Duties and Liabilities of a Karta

Despite the wide range of powers that the Karta enjoys, there are certain liabilities and duties that he is bound by. The foremost and uncompromisable responsibility being managing the family matters bona fidely in best interests of all the coparceners. Also, A Karta is liable for maintaining all the family members, females of the family and even illegitimate children. In case of a default, a civil suit can be filed against the Karta by the female members of the family. At times of partition, he is liable to render accounts asked for by the coparcener. A Karta is also responsible for the execution of events like marriage, religious sacraments, etc. in the family. Since he is the ‘manager’ of the family property, he is also liable to make sure that all dues, taxes, loans, and debts are paid well off. Also, being the legal representative of the whole HUF, he is responsible to take care of all the litigations filed by and against the family. Including everything, the prima facie duty of the Karta is to ensure total security, safety and maintenance of the family.

Conclusion

The senior-most male member of the family gets the status of a Karta, the head, the manager of the family affairs. For this, he may or may not receive a remuneration. But he does enjoy several powers owing to his honorable position in the family and is also at the same time responsible for the maintenance of the same. In the complex Hindu family system, the role of a Karta proves to be a simplifying factor in the direction of managing the Hindu undivided family more efficiently

However, in the whole law including the Karta, the exclusion of women is yet a milestone to be achieved. Merely making them Coparceners but not giving them the right to be a Karta is an utter violation of their right to equality. Also, the powers given to the Karta concerning the family property needs a delusion, in aspects where it keeps him non-accountable to the members for his partial actions. There still needs to be an evolution in the laws and principles relating to the working of a Karta. But till then, the changes await.

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[i]  Surjit Lal Chhabda v. CIT, (1975) 101 ITR 776.

[ii]  Narendra Kumar J. Modi v. CIT, 1976 SC 1953.

[iii]  Jasoda Sundari v. Lal Mohan Basu, AIR 1926 Cal 361.

[iv]  Family Law Lectures, Dr. Poonam Pradhan Saxena, LexisNexis 4th ed. Pg 149-150.

[v]  Kandasami Askari v. Radhe Ram Singh, (1912) ILR 35 Mad 177.ch

[vi]  Pritam Singh v. Ujgar Singh, (1878) 1 All 651.

[vii]  Nopany Investments (P) Ltd. v. Santokh Singh (HUF), (2008) 2 SCC 728.

[viii]  Nopany Investments (P) Ltd. v. Santokh Singh (HUF), (2008) 2 SCC 728.w

[ix]  Sabitri Thakurain v. FA Savi, AIR 1933 Pat 306.

[x]  The Constituent Assembly of India (Legislative) Debates Vol.VI 1949 Part II.

[xi]  Comm. of Income Tax v. Govinda Ram Sugar Mills, AIR 1996 SC 240.

[xii]  Punna Bibi v. Radha Kissen, (1904) ILR 31 Cal 476.

[xiii]  Hindu Succession (State Amendment) Acts, 2005.

[xiv]  Sujata Sharma v. Manu Gupta, 2010 SCC OnLine Del 506.s

[xv]  Shreya Vidyarthi v. Ashok Vidyarthi, (2015) 16 SCC 46.

[xvi]  Subhodkumar and Ors. v. Bhagwant Namdeorao Mehetre and Ors., AIR 2007 SC 1324.

[xvii]  Bhaskaran v. Bhaskaran, (1908) ILR Mad 318.

[xviii]  Sarda Prasad and Ors. vs. Lala Jumna Prasad and Ors. AIR 1961 SC 1074.

[xix]  Rajayya v. Singa Reddy, AIR 1956 Hyd 200.

[xx]  C.S.K Krishnamurthy v. Chidambaram Chettiyar, (1946) ILR Mad 670.

[xxi]  Gurbasappa v. Vankat, AIR 1956 Hyd 146.

[xxii]  Mirthubasini  v. Easwaramurthy and Ors., 2011 SCC OnLine Mad 1077.

[xxiii]  VVV Ramarajju v. Korada Malleshwar Rao, (1999) 2 HLR 257 (AP).

[xxiv]  Radhakrishnadas v. Kaluram, (1963) 1 SCR 648.

[xxv]  Jagan Nath v. Mannu Lal, (1894) ILR 16 All 231.

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EVENT: Legal Articles & Case Comments Submission for Volume XII of KUJLS Journal
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This article is written by Ritik Kumar, pursuing his BALLB (Hons.) from Aligarh Muslim University Campus Kerala. 

Meaning of Consumer Protection

Consumer protection is a policy which provides protection to the buyers of goods and services and protects them against unfair trade practices in the marketplace. It also averts businesses from adopting unfair methods such as fraud to mislead consumers. It is the result of an idea of consumer rights. Every consumer has the right to adequate information about goods and services they are purchasing which can be enforced through right to information.[i] Now the question arises, what is adequate information? It was defined by the honourable Supreme Court in case of Samira khan V. Dr Prabha Manchanda as an information which enables the patient (consumer in general) to make a balanced judgement as to whether she should purchase a particular good or hire a particular service or not.[ii]

Who is Consumer? 

A consumer is a person who buys any goods or hires any services by paying something in consideration of that. So, relying on this general definition of consumer, it becomes clear that things given out of love, received in gift or without any payment will not arise any consumer right. Section 2(7) of Consumer protection act 2019 defines consumer as a person who buys any goods or avails a service for a consideration.  It does not include a person who obtains a good for resale or a good or service for commercial purpose.  It covers transactions through all modes including offline, and online through electronic means, teleshopping, multi-level marketing or direct selling. 

Consumer Protection legislation in India 

Modern consumer protection legislation can be traced back to 1860 with the enactment of the Indian Penal Code. There are many statutes which deal with consumer protection laws in India, the principle being the newly enacted Consumer Protection Act, 2019. Other than CP act, consumer rights and protection to them is provided under Indian Penal Code 1860, The Indian Contract Act 1872, The Sales of Goods Act 1930, The Agriculture Produce Act 1937, Drugs and Cosmetics  Act 1940, Certification Marks Act 1952, Essential Commodities Act 1955, etc.

Indian Penal Code, 1860

Accurate measurement is a generally recognized principle of justice and the right of every consumer. If any fraudulent activity is involved in the measurement of goods, it will be an intrusion on consumer rights. IPC criminalizes such acts and a person who uses any false instrument for weighing fraudulently or makes or sells such false weight or measure may be punished for an imprisonment term which may extend to one year, or with fine, or with both.[iii] Adulteration of food or drink intended for sale and sale of noxious food or drink is also a penal offence and a person who committed such an act may sentence to a prison term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.[iv] IPC further criminalizes adulteration of drugs which is done to lessen its effect, change its operation or to make it noxious and sell a drug as a different drug. It is punishable with an imprisonment term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.[v]

Indian Contract Act, 1872

A contract is anything which is agreed between/among parties to contract and enforceable by the laws of the land. It is only binding on the parties to contract. In India contract regulations mainly dealt under Indian Contract Act, 1872 which under its section 27 declared agreement in restraint of trade as void. Hence, it serves consumer interest by promoting competition in the market and protects them from monopolistic market risks. In case of breach of a contact section 73 of the act has provision for compensation for loss or damage caused by such breach.

The Constitution of India

Although the Indian Constitution doesn’t specifically provide for any specific provision, there are few articles which are very important for protecting the rights of consumers. Article 21 of the constitution guarantees every person has the right to live with dignity, free from all kinds of exploitation which means market exploitations will also fall under article 21. Directive Principles are not enforceable in court but they serve as goals and guidelines for the government. Article 47 of the constitution which is part of DPSP requires the state to take steps to prohibit the consumption of intoxicating drinks or drugs which are injurious to health.

Consumer Protection Act, 1986 

This act was enacted by the parliament of India with the following aims and objectives:

• To prohibit businesses from marketing goods which are hazardous to life and property;
• To provide a variety of goods at a competitive price;
• Right to consumer education, redressal against unfair trade practices and to provide consumers adequate information as to the quality, quantity, ingredients, standards and price of goods and services; and
• To ensure freedom of trade carried on by other participants in the market. 

Attempts had been made to amend this act by consumer protection (amendment) bill 2011, to replace the act by introducing consumer protection bill 2015 and consumer protection bill 2018. It had been replaced by consumer protection act 2019.

Consumer Protection Act, 2019

To address challenges faced by consumers in the digital age, the Indian Parliament enacted a new act namely consumer protection act, 2019 which replace completely consumer protection act, 1986. This act aims to provide timely and effective administration and settlement of consumer disputes. Major changes brought by this act are as follows:

• In the 1986 Act, there was no provision for product liability which now can arise under the new act against a product manufacturer, product service provider and seller or all of them.

• The 1986 Act includes six types of unfair trade practices including misleading advertisement and false representation. The new Act adds three types of practices to the list namely failure to issue a bill, refusal to accept a good return within 30 days and disclosure of personal information given in confidence unless required by law.
• Unfair contracts were not defined in the 1986 Act. The new Act defined them as contracts that cause a significant change in consumer rights.
• There was no provision for alternative dispute redressal in the old Act. The new Act provides for mediation cells.
• There were no specific provisions dealing with E-commerce in the 1986 Act. The new act defined e-commerce as buying or selling of goods or services including digital products over a digital or electronic network.[vi]

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[i]  The Right to Information is a fundamental right under Article 19 (1) of the Indian Constitution.

[ii]  (2008) 2 SCC 1.

[iii]  Section 264 and 267 of The Indian Penal Code, 1860.

[iv]  Section 272 and 273 of The Indian Penal Code, 1860.

[v]  Section 274 and 276 of The Indian Penal Code, 1860.

[vi]  Section 2(16) of The Consumer Protection Act, 2019.

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