The case analysis is written by Deepika, pursuing BALLB from IIMT & SCHOOL OF LAW, GGSIPU, Delhi.

Shreya Singhal vs. Union of India AIR 2015 SC 1523

INTRODUCTION

Freedom of speech is one of the most cherished fundamental right guaranteed by our Constitution. The honourable Supreme court in various cases reiterated the importance of this fundamental right. In the matter of Shreya Singhal v. UOI (2015), the Apex Court reaffirmed the importance of the fundamental right of freedom of speech and expression, by declaring Section 66A of the Information Technology Act, 2010 unconstitutional.

Bench

J. Chelameswar, Rohinton Fali Nariman

Date of Judgement

24^th March, 2015

Relevant Article

Articles 19, 14, 21

Relevant Act

Information Technology Act, 2000

Relevant Sections

Section 66-A, section 69-A, section 79

Relevant Rule

Rule of severability

Facts of the case

There was bandh declared by the Shiv Sena People in Maharashtra, in the year 2012, after the death of Shiv Sena leader Bal Thackeray. This bandh decision was not liked by the two girls, Shaheen Dhada and Rinu Srinivasan, who lived in Than. One of them posted something on Facebook and the other one liked it. They both expressed their displeasure at a bandh called in the wake of Shiv Sena chief Bal Thackery’s death. They were arrested by the Mumbai police in 2012 under Section 66A of Information Technology Act, 2000. This Section punishes any person who sends through a computer resource or communication device any information that is grossly offensive, or with the knowledge of its falsity, the information is transmitted for the purpose of causing annoyance, inconvenience, danger, insult, injury, hatred, or ill will. Later on, the arrested women were released and it was decided to close the criminal cases against them yet the arrest attracted widespread public protest.

The writ petition was filed in Public Interest under Article 32 of Constitution of India by Petitioner seeking to declare Section 66A, Section 69 and Section 79 of the IT Act, 2000 unconstitutional.

Issues Raised

Whether the Sections 66-A, 69-A and 79 are constitutional or not?
Whether Section 66A is curtailing Freedom of speech and expression or not?
Whether Section 66A is saved under Section 19(2) or not?

Judgement

The petitioners in their argument argued that 66A of IT Act 2000 infringes the right of Freedom of Speech and Expression as enshrined under Article 19(1)(a) of the Indian Constitution. They further argued that sec 66A is vague in nature and infirmity has been created by this section, as it does not properly define the terminology used under the section. The court said: “Every expression used is nebulous in meaning. What may be offensive to one may not be offensive to another”. Therefore, the interpretation was held to be subjective in nature. Hence the court-ordered 66A as violative of right to freedom of speech and expression and is not covered under the grounds of reasonable restrictions given under Article 19(2). The court also observed that the challenge was to identify where to draw the line. Traditionally, it has been drawn at incitement while terms like obstruction and insult remain subjective.

In addition, the court had noted that Section 66A did not have procedural safeguards like other sections of the law with similar aims, such as :

The need to obtain the concurrence of the Centre before action can be taken.
Local authorities could proceed autonomously, literally on the whim of their political masters.

The judgment had found that Section 66A was contrary to both Articles 19 (free speech) and 21 (right to life) of the Constitution. The entire provision was struck down by the court.

So this section was declared void by the honourable court. In this case, the court applied the rule of severability, the court didn’t declare the whole IT Act void but only section 66A was held unconstitutional. The court also held that blocking of information for public access given under Section 69A of IT Act is constitutionally valid in nature.

Final Decision

Section 66A was struck down in its entirety being violative of Article 19(1)(a) and is not saved under Article 19(2).
Section 69A is valid.
Section 79 is valid subject to the reading down of Section 79(3)(b).

In the judgement, the honourable Supreme court focussed on the significance of Fundamental Right of freedom of speech and expression and reasonable restrictions to it. The court by its judgement has shown that this right is one of the basic pillars of democracy, so the state can’t unreasonably and arbitrarily interference with the right.

Conclusion

This is a landmark case which plays a very significant role in the Indian legal system. In this case, the honourable Supreme court has reaffirmed the importance and vital status of the fundamental right of freedom of speech and expression. Freedom of speech and expression is very important for overall growth and development of a country. It is a means by which every person can indirectly participate in the governance of the country. This right is which gives essence to a democratic country. The Supreme court has increased the scope of right available to us under freedom of speech and expression. At the same time court has limited the scope of any arbitrary interference of the state in the enjoyment of our this right, which is an indispensable gem of a democratic country. This decision of the court also affirms that the honourable Supreme court is the custodian of our fundamental rights. It acted as a watchdog to protect our fundamental right.

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This article is written by Samridhi Sachdeva pursuing BBA LLB from Gitarattan International Business School, GGSIPU. This article focusses on the laws on rape and unnatural offences. Also, tries to describe the ingredients necessary to commit these offences in depth.

INTRODUCTION

The most heinous crime related to women is Rape. Rape, not only physically but also emotionally and mentally destroys a woman. And, even society pushes the girl towards a severe mental trauma. It completely kills a woman from inside and all her dreams and feelings come to an end.

Some laws have been made describing Rape and its punishment under the Indian Law. But, any punishment for Rape won’t ever do justice with the pain of rape victim. Like, even death punishment for rape will not be enough, some strict punishment should be made for the rapists to give complete justice for the rape victim. But, if compared to the early times, the laws have been amended and made slightly strict.

And, on the other hand, unnatural offences covers unnatural sexual intercourse that is against the normality of nature. Unnatural, here means sexual intercourse, which does not form a part of reproductive sexual intercourse. The guilty or the accused commits this offence either with a man, woman or animal.

Laws on Rape

The word ‘rape’ arises from the Latin word ‘rapio’ , which means ‘to seize’. So, rape basically means a forcible seizure. Rape is the sexual violation without the consent of woman, with fraud or force.

The Indian Penal Code describes sections related to the laws on rape and its punishment. Section 375 defines rape and Section 376 defines its punishment. Section 376A makes husband liable to punishment for intercourse with his wife during separation and Sections 376B to 376D gives punishment for ‘custodial rape’.

Section 375

According to section 375, a man is said to commit rape if he-

Penetrates his penis, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or with any other person, or
Inserts any object or part of his body(not penis) into the vagina, urethra or anus of a woman, or
Manipulates any part of the woman’s body, so as to cause penetration into the vagina, urethra, anus or any other part of woman’s body, or
Applies his mouth to the vagina, urethra or anus of a woman

And explanations given under this section are that the term ‘vagina’ should also include the ‘labia majora’. And also, that if a woman physically, does not resist the act of penetration then, this can not be regarded as consenting to the sexual activity.

Necessary ingredients of Section 375

The section lists some ingredients that prove that the act was against the will and consent of the woman. So, a woman is not liable for rape. The essential ingredients are:

Against her will: It requires that there should be an explicit opposition on the part of the victim towards the act and still the accused committed the act.
Without her consent: Absence of consent is the essence of rape. A man is the best judge of his/her own interest and will never put herself/himself in any act that can cause injury. The definition of consent is given under Section 90 of the IPC.
By obtaining her consent by putting her or any other person, she is interested in, with fear of death or of hurt is no consent in law. Obtaining consent by such practices is not a valid consent.
When her consent is obtained by making her believe that she is lawfully married to that man: In this case, the consent of the woman is obtained by making her believe the misconception, so that she allows for sexual intercourse but in fact, the person is not the lawful husband of the woman but just pretends her to be one. So, this is no consent in law.
Consent obtained through unsoundness of mind: When the consent of woman is obtained by reason of unsoundness or when she can not understand the nature of the act is no consent in law. This clause is the new addition in this section after the Criminal Law (Amendment) Act 43 of 1983. It is to protect and safeguard the interest of the woman, who gives consent to the man for sexual intercourse without knowing the nature of the act by reason of unsoundness of mind or under the influence of stupefying or unwholesome substance.
Act done when she is under 18 years of age: Consent obtained, when the girl is under 18 years of age is not a valid one. Since, she is unknown to the nature and consequences of the act. So, she is incapable of giving her consent to any such sexual act.
When she is unable to communicate consent: Any condition or circumstances that resist her to give consent to such acts can not be a reason to commit the offence.

Exceptions under Section 375

There are two exceptions under section 375, that does not form part of rape:

Any act which is done during the medical procedure or intervention.
Any sexual act done by a man with his own wife, wife not being under fifteen years of age.

Amendments after 2013

Certain amendments have been made after the Act 13 of 2013. They are as following:

Meaning of penetration has been given a different form. Penetration now amounts to any kind of sexual penetration done by a man into the body of a woman. And in case of a girl child, of tender age, then trying to do the act of penetration will also amount to rape.
The punishment of rape: Section 376 of IPC describes the minimum punishment of rape, i.e. seven years of imprisonment under clause (1) which may extend to life imprisonments.
The meaning of consent has also been expanded by adding the clause (5) under section 375.

Section 376

In 2013, certain changes in the punishment of rape were made to deter people from committing this crime. It has been divided in two sub-sections to fix punishment relating to the seriousness of the crime

Sub-section (1) describes the punishment of rape with a minimum of seven years of imprisonment that may extend to the imprisonment of life and fine.

Sub-section (2) describes the punishment of rape which is not less than 10 years of imprisonment but may extend to the imprisonment of life till death and fine. This sub-section gives punishment of rape, if committed by a public servant, police officer, member of armed forces, person being on management or staff of a jail, or other place of custody of women’s or children’s institution or by a near relative of the person raped.

In a recent judgement of State of Karnataka v. Puttaraja (2004), the Supreme Court through Justice Arijit Pasayat, said that the rapist not only causes physical injuries but also leaves scars on the dignity, honour and reputation of a woman. So, leniency in punishment of the sexual offences is against the public interest and such animals should be punished to commit such heinous crime.

Section 376A

It covers those cases of rape which cause such injuries to the woman, that may lead to her death or persistent vegetative stage (PVS). The punishment for this is imprisonment of not less than 20 years and which may extend to imprisonment for life.

Section 376B

When a husband, after separation with his wife, commits rape on her, shall be punished with imprisonment of either description of term of not less than two years and which may extend to seven years with liability to pay fine.

Section 376C

This section creates a new category of sexual offences that does not amount to rape because the consent of victim is given, by compelling. These offences are committed by persons who hold a supervisory power and position in the institution under their control. They take advantage of their power and authority and forcefully have sexual intercourse. These offences have been known as ‘custodial rape’. Punishment for such offence is imprisonment of not less than five years but may extend to ten years with fine.

Section 376D

This is a new section that talks about gang rape and describe its punishment. By applying the joint liability principle, when one or more person commits rape on women together, then they are liable under this section. Punishment is not less than imprisonment of 20 years but may extend to imprisonment for life and fine for the medical expenses of the woman.

Section 376E

When a person who was already accused earlier under section 376, 376A or 376D if convicted again for the offence of rape under the said sections, will be punished with imprisonment for life or death.

Laws on Unnatural Offence

Section 377 of the IPC describes the act of unnatural offence. Any person who commits unnatural carnal intercourse with a man, woman or animal must be punished under this section. The penetration in this section must be done into the anus. Consent in this section is immaterial. The punishment for this offence is imprisonment of life or imprisonment that may extend to 10 years with fine. The ingredients of this section are:

The act should be against the order of the nature.
The accused must have carnal intercourse with man, woman or animal.
The act was done voluntarily by the accused.
Proof of penetration.

Two types of unnatural offences are discussed under this section:

Sodomy: It describes the intercourse per anus by a man with a man or with a woman or with an animal. It may either be homo or heterosexual.
Bestiality: It means that the sexual intercourse is done either by a man or by a woman in any way, with an animal or bird.

Conclusion

Despite being such laws and punishments, rapists don’t shy to commit such crimes with women. They don’t care whether the girl is 5 years old, 25 years old or 70 years old, they just commit the offence and completely destroy the life of women. More severe punishments should be made for such offences and the rape cases should be taken very seriously. Also, women need to be strong as well to fight such animals. And the laws should focus more on the roots of this crime rather than just punishing the rapists.

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This article has been written by Shashvat Pant, pursuing BBA-LLB at Centre for legal studies, Gitarattan International Business School, GGSIPU. In this article, he has discussed the concept of talaq under Muslim Marriage and Dissolution Act,1939.

Introduction

In order to understand the concept of divorce under the Muslim Laws, we must first familiarize ourselves with How is a Marriage instituted under Muslim Laws. The term ‘Nikkah’ is used for marriage under Muslim Laws. A Nikkah is a Contract and not a Sacrament. The essentials of a Valid Marriage are same as the essentials of a Valid Contract which are:

Consideration
Free-Consent
Age of Majority

The terms of nikkah are within legal limits and can be altered as to suit individual cases.

Nikkah is a contract for the legalisation of intercourse and procreation of children. The ceremony of nikkah is simple; no ceremony, rites, formality has been specified. Essential Requirements of nikkah are Ijab(offer) and Qubul (acceptance). These both have to be done in the same meeting. These essentials can be performed by agents i.e. parents or grandparents. Secondly, Dower(Mahr) is to be paid by the Groom’s family to Bride and in case of non-payment, is entitled to take legal actions.

The Nikkah confirming all the aspects is termed as Sahih. Nikkah in which there is some prohibition such marriage becomes Batil. If there’s a prohibition, temporary in nature, the marriage becomes Fasid.

Divorce is Permanent severe of married status. The provision for divorce has been for a long time. In India, the Dissolution of Muslim Marriage Act was passed due to the efforts of Kazi Muhammed Ahmed Kazmi.

Talaq under Muslim Laws

Divorce is termed as talaq under Muslim Laws. Talaq is permanent severe of married status. Talaq is either Revocable or Irrevocable in nature. Prophet said, “With Allah, the most detestable of all things permitted is divorce.” Prophet’s son-in-law, Ali was given the choice of 5^th marriage, by divorcing any of the 4 wives. But Ali being a believer of Prophet, denied to do so. Ali even announced publicly that no one shall marry his son Imam Hasan as Hasan was habitual of divorcing frequently.

Under Sunni law, no special form is necessary and witnesses are required,
Under Shia law, a Strict formula needs to be applied and 2 witnesses are mandatory.

Which male may give divorce?

Husband of sound mind may give divorce to his wife without telling her the reason.
Presence of the wife is not a compulsion.
There is no need for him to give notice to his wife.

Different ways in which Talaq can be affected

Talaq can be affected in the following ways:

Talaq by Husband (Talaq, Ila, Zihar)
Talaq by Wife (Talaq-e-tafwid or Talaq-e-tafwiz)
Talaq by Mutual Agreement (Khula, Muba’rat)
Talaq by Judicial means (Lian, Faskh)

1.Talaq by Husband

A. Talaq

Talaq is either revocable(approved) or irrevocable(unapproved).
Revocable form of talaq is Talaq-al-Sunna which further consists of Ahsan and Hasan
Irrevocable form of talaq is Talaq-ul-Biddat, also known as Triple talaq

A.1 Talaq-al-Sunna

It consists of Ahsan and Hasan.
Both the forms are revocable in nature which means the marriage can be restored at any point of time before the end of the Iddat period.

A.1.(a)Ahsan

Under this form, the husband makes a single pronouncement of talaq during the Tuhr of the wife. Tuhr is the period of wife’s parity i.e. a period between two menstruations. After this single pronouncement, the wife is to observe an Iddat of three months. If she is pregnant at the time of pronouncement the Iddat is, till the delivery of the child.
Before the end of Iddat, a husband may revoke at any point of time
Revocation may be express or implied
This is a more accepted form of divorce

A.1.(b)Hasan

Under this form, the husband makes three pronouncements of talaq during three consecutive Tuhrs.’
This is a less acceptable form of talaq

A.2 Talaq-ul-Biddat

It is disapproved form of divorce.
Under this form, a triple declaration of talaq is made in a single Tuhr.
This form is also called Talaq-ul-Bam.

ILA & ZIHAR

Ila and Zihar type of talaq is mentioned in the Shariat Act, 1937.
These types of talaq are very rare in India

B. Ila

Under this type of divorce, the husband swears not to cohabit with his wife for 4 months or more.
This can be revoked by conduct.

After the expiration of 4 months:

Sunni Law: Marriage is dissolved without legal proceeding
Shia Law: Proper legal proceedings are conducted

C. Zihar

Husband states that his wife’s back is alike to his mother’s back, by which he says his wife like her mother.
In case, the husband later decides to revoke, he has to give expiation(reparation for wrongdoing, guilt) by fasting, giving money.

2. Talaq by Wife

Talaq-e-tafwid

This the power which is given to the wife to get herself divorced by her husband, which means, the husband delegates his right of pronouncing divorce to his wife under specified condition.
In order to avail this divorce, a wife must get this power mentioned within the kabinama.

Traditional Classification of talaq-e-tafwid:

Ikhtiyar (upon choice)
Amr-bi-Yad (at your hand)
Mashiyat (At your pleasure)

3. Talaq by Mutual Agreement

There are two ways in which a talaq can be made by mutual consent/ agreement: Khula and Mubar’at.

Two essential conditions to avail this talaq are:

Consent of Husband and Wife
Awiz (in exchange for)

A. Khula

If the desire for parting comes from wife, then such talaq shall be termed as Khula.
In exchange for such freedom, the husband asks his wife to transfer the Mahr
Khula literally means removing ‘parda‘
A mandatory Iddat period has to be served.

B. Mubar’at

If the desire of parting comes out of mutual agreement, then such talaq shall be termed as Mubar’at.
Mubar’at means freeing from one another mutually.
A mandatory iddat period has to be served.

4. Talaq by Judicial means

There are two ways to gain a talaq by judicial means: Lian and Faskh.

A. Lian

The concept of Lian has come from the time when Prophet was the Ruler of Arab.
If a husband falsely accuses his wife of committing Zina or unable to prove such allegation, the wife in such case is entitled to file a dissolution suit.
A Kazi must intervene at the place where laws are not formal.

In India, a regular suit has to be filed at hearing, where the husband has 2 options:

Either to formally retract, (before evidence close)
If Husband does not retract, he’s called upon to make an oath in front of 4 eyewitnesses.

Bombay High Court has laid down three conditions for valid retraction, which clearly states that Judiciary respects the personal laws and provides relief as provided by Prophet

Husband must admit that he has made a charge of adultery
The charge of adultery is false.
Retraction should be before the end of the trail

B. Faskh

It is the power given to a Kazi (3rd person) to end marriage upon the wife’s application. Faskh in terms of Muslim Marriage Act refers to the annulment of marriage on certain permissible grounds.
Before passing of Muslim Marriage and Dissolution Act, a Muslim lady could apply for dissolution under the doctrine of Faskh.
The grounds available to women for annulment of marriage are as follows:

Husband has been missing for 4 years or more.
Husband’s failure to maintain his wife for 2 years or more. In Noor Bibi vs. Pir Bux, the husband failed to maintain wife for more than 2 years.
Husband is sentenced for 7 years or more.
Husband fails to perform marital obligation for 3 years or more.
Husband being impotent before the marriage and continues to be so.
Husband suffers an incurable Insanity or venereal disease.
Option of Puberty (Khayal-ul-Bulug)
Cruelty against wife

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The following article has been submitted by Aaditya Kapoor, a law student of Vivekananda Institute of Professional Studies. Through his research, Aaditya analyzed the prevalence of the construct of parliamentary sovereignty in India.

Introduction

As jurists began to clutch a definition of law and ways to apply structure to its implementation within society, the concept of “Sovereignty” was fabricated and identified to be the central element of law as a governing instrument. Over decades and decades of evolution, the implementation of law itself has undergone a plethora of alterations, but a sovereign ideology has always revolved around bodies that ensue and profess what their arrangement of law entails.

What is Parliamentary Sovereignty?

The sovereignty explained in parliamentary terms is called Parliamentary Sovereignty. This dominance may be viewed in two ways –one may offer absolute hegemony, retaining the parliamentary opinion or judgment to the final say in matters of eliminating dark clouds emerging from problems in constitutional definition, and another opinion of preserving or upholding parliamentary sovereignty in one area, whereas in other areas Parliament ‘s position may be restricted or reduced.

Parliamentary sovereignty or supremacy ensures that parliament is equal to government branches of the executive and judiciary, and can thus pass or amend whatever legislation it wishes. A V Dicey, a 19th-century constitutional scholar, aptly sums up the principle of parliamentary sovereignty as a construct that entails the parliament to possess the right to make or unmake any law, as per and under the English constitution. Most of today’s existing monarchies are bound by some kind of constitution that does not place lawmaking and governing powers in the hands of kings and queens but a legislative body called a Parliament. Today, parliament is a major part of many governments around the world, and in order to prevent monarchs from ensuing political supremacy, a nation needs parliamentary sovereignty.

Origin of Parliamentary Sovereignty

The construct of Parliamentary Sovereignty first came into being in the United Kingdom. The basic principle was, that there are limitless and unregulated lawmaking rights in the UK Parliament, and the king cannot arbitrarily make rules, nor can the courts circumvent the rules. Only Parliament can make, change, and delete legislation. It is possible to define parliamentary sovereignty as implemented by the UK government by four principles:

Parliament has absolute power to lay down laws and statutes.
The tribunals have no power to declare any statute invalid.
No present Parliament is bound by previous parliamentary laws or precedents.
Parliament will never be able to pass any legislation which a future Parliament cannot undo.

However, the concept applies differently to India with a sense of restriction being placed, so as to promote the ideals of democracy wherein the citizens of a country hold the most power.

Parliamentary Sovereignty in India

In India, parliamentary powers derive their mandate from the Constitution, and parliament does not have unfettered or arbitrary jurisdiction to override the Constitution. It is not a question of parliamentary supremacy or judicial supremacy; rather it is a question of striking the balance between the two in order to have a democratic establishment where public interests are not violated. Parliament’s supremacy in India, therefore, must be assessed in relation to its relationship to The Executive, The Judiciary and The Legislature itself. The Parliament of India is not a sovereign legislature in the same manner as the Parliament of Britain. It operates within the limits of a written constitution defining a federal framework, and a Supreme Court entrusted with judicial review powers. Parliament’s legislative competence is limited, in normal times, to the subjects listed in the Union List and the Concurrent List in the Constitution’s Seventh Schedule. Moreover, in Part III of the Constitution, its supremacy within its own sphere of jurisdiction is limited by the fundamental rights guaranteed to citizens. Article 13 Clause (2) forbids the State from creating any legislation that would take away or abridge any of the Fundamental Rights, subject to defined restrictions. Where the State creates a law in violation of constitutional rights, the law shall be null and void to the point of contravention.
In Keshavananda Bharati v. the State of Kerala, the Supreme Court held that Article 368 did not allow the Parliament to alter the ‘basic structure’ or the constitutional framework. The term basic structure is a vague and general term, and a commonly agreed meaning did not come from the Judges themselves. Unless this judgment is reversed by the Court on the Union Government’s review application or a new amendment to the Constitution is enacted and the Supreme Court upholds that amendment, Parliament’s power can not extend beyond the limitations placed by the Constitution and the Supreme Court.

Despite these limitations on Parliament’s authority, it is the pivot on which the entire Government’s machinery revolves. Its regulatory competence covers a wide area and it has wide financial resources. It also requires its permission to wage war and to make peace. Parliament and the State legislatures have equal freedom to legislate on subjects in the Concurrent List, but if the law enacted by the State Assembly does not comply with the law passed by the Parliament, the law enacted by the Parliament shall prevail. Parliament can also legislate on any matter in the State List if, by a resolution, the Council of States decides that it is appropriate to do so in the national interest. All restrictions on Parliament’s legislative and financial jurisdiction disappear during an emergency. It is important to note that these immense powers conferred on Parliament are, to a large extent, the powers of the Executive. Even Britain’s implementation of Parliamentary Sovereignty was subject to certain practical and political restrictions, such as public opinion, international law, and international agreements.

However, as mentioned above, parliamentary supremacy in India is best relayed through each wing of the nation’s political configuration. Therefore, it is important to relate Judicial Review as a part of the aforementioned ambit.

India has resorted to the parliamentary form of government as opposed to the presidential form of government under which each head of government is accountable. In the initial years, under the rule of the British Government, the judiciary followed a pre-legislative stance in its various rulings, but more than 100 laws were passed by the state that the Parliament considered unconstitutional.
The Judicial Review in the Keshvananda Bharati Case was eventually considered to be the basic structure of the Indian Constitution. Similar view has been echoed in S.P. Sampath Kumar v. India. Justice PN Bhagwati, relying on Minerva Mills Ltd (1980) 3 SCC 625 claimed that Judicial Review is the fundamental framework of our Indian Constitution.

Judicial review includes the authority of the courts to review legislative and judicial decisions, thereby enshrining the rule of law principle and upholding, at grassroots level, the separation of power concept. Thus, the key structure through which the judicial limits are circumscribed is the judicial review of administrative and legislative acts and the examination of many constitutional changes in the light of constitutional requirements, thereby preserving the constitution’s sanctity and preserving the citizens’ fundamental rights. Judicial review is a powerful tool for holding public bodies under control and making them accountable if their decisions or policies go beyond the powers laid down in the Constitution. By regulating unconstitutional or unjust actions taken on behalf of the Executive and the Legislature, it ensures effective checks and balances. The Supreme Court held in L.Chandra Kumar v UOI (1997) 3 SCC 261, that the power of judicial review under Articles 32 and 226 is an integral and essential feature of the basic structure of our Constitution. Consequently, judicial review formed a specific and special tool in the hands of the judges whereby unlawful legislative and executive actions could be quashed.

Limitations of Power on The Indian Parliament

The Indian Parliament is not supreme as the British Parliament, as the Indian Parliament operates within the boundaries or peripherals that were laid down by the Constitution, and there is s strong policy of judicial review in India. In the United Kingdom, Parliament has enormous power to modify, revoke or change the Constitution, but there is a distinction in India between substantive law and constitutional law, and specific clauses are inserted into the Constitution to allow changes pursuant to Article 368. Therefore, the Indian Parliament’s power is not unfettered like the British Power, because it is circumscribed within the four constitutional walls. Article 13 states that State shall not make any law inconsistent with Part III of the Constitution which violates Fundamental Rights or which removes or abbreviates Fundamental Rights.
In Golaknath v State of Punjab (1967) 2SCR 762 it was provided that Parliament’s amending power does not include the power to amend Fundamental Rights and, as a consequence of this decision, 24th amendment was introduced that the amendment of the Constitution made pursuant to Article 368 applies to the addition of clause 4 to Article 13 which does not provide for anything in this Article. The expenses and salaries of the Comptroller and Auditor General, Judges of the Supreme Court, members of UPSC etc. are charged from India’s consolidated fund and Parliament has no power to diminish such allowances except during a financial emergency.

The Indian Parliament has no hegemony over the Indian Constitution and India strikes a balance of judicial scrutiny of the legislative acts; but the three pillars: the executive, the judiciary and the legislature will function hand in hand and not infringe the rights of another person.

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Abstract

This article is written by Pooja Lakshmi, studying BBA-LLB at Bennett University, Greater Noida. The article aims to give the research findings regarding the pigeonhole theory. If you put three pigeons in two pigeonholes, at slightest two of the pigeons put a stop to up in the constant puncture; is a noticeable so far underlying attitude of life as it captures the self-same essence of counting. It also discusses the evolution of pigeonhole theory in law with different examples. The information used in this article is from various e-resources, journals, and case laws. This article is explorative in nature.

Introduction

Law of tort or law of torts is a question faced by every law student in their first semester of law school. According to Salmond- “It is the law of torts that exists and there is no law of tort as it was all specific well-defined wrongs”. A person is liable for a tort committed by him, but in some specific situation when one person is made liable for a tort which was committed by another, a fall-back theory of recovery is used, and the liability is fixed. Strict liability and absolute liability are well recognised in tort.

Any harm causing injurious act is said to be a tort. A person can only escape from being guilty if he or she can prove a legal justification for not committing an offence, or an excuse to it. Pigeon-hole theory was proposed by Salmond which justify tort as any harm constituted as legal injury, must fit into pigeon-holes i.e. specific tort because there is no space for another tort.

The above is contra to the Winfields Utility theory which says, “civil wrongs are actionable per se”. Tort law is a substantial machinery and it gives compensation to all the victims of tortious injury bringing out a mysterious quality. It provides deterrents, kind of a relief for diverse forms of harms like mental distress, economic injuries, and impairment of reputation. This highlights the chief rules and policy of liability relating to the scope of tort, such as trespass to property, wrongful birth and unjust life, legitimacy of the go through of abortion. These are some subjects of petite consensus meeting minds.

The nature, scope and significance of tort law have seen sweeping transformation and radical changes over the past 200 years. With the passage of time, several neutrons have emerged like workplace environment, modern machinery, technology anomalies, and have led to the development of tort law, nowadays called as Modern tort law. A lot of the resulting tort victims’ problems were not solved and might not be adjusted by the rule independently. In such cases, resources are made to the other deterrence rules of public and private law. Comparing to any other century, the 21^st century has bought a great expansion of tort law. From product liability to medical malpractices claims, extended liability of corporations, and expansion of information technology, tort law has a wide scope.

Our exploration with the common law principle has entered to bring a great impact. The potential victims have a fundamental interest in Liberty, Privacy and, Security of the fellow members of the society, and have to maintain equality and fairness in our social affairs. As potential injurers, we may not have a fundamental interest in Liberty of others because there are many of us who’s interest may conflict in helping others. The purpose of the tort law is to reconcile, competing with fundamental interests of the family. Favourably, the most injuries that find their own way into the power system are not intentional wrongdoing as happens due to the negligence.

False imprisonment is considered to be one of the oldest violation of rights. It has been described variously as a tort of trespass, assault, wrongful damage and injury resulting in suits aiming for a remedy.

The real guideposts for assessment against a defendant in an action of tort in future is that, under any condition which cannot be distinguished (except by the conclusion of the defendant), are done at the parallel of wrongdoer that if he escapes the liability just because my good fortune; no injury comes of his action in the instance.

Evolution

This theory is showcased in case Allen v. Flood[1]. In this case, there would be no fairness to the plaintiff only on the ground that there is no similar case in the past which is acknowledged as a tort. Court also observed that torts are infinitely a choice and not partial or confined.

In Ananta Goswami vs Green Valley Travels (Pvt.) Ltd[2], it is stated that assembling of law into pigeon-holes does not mean that these pigeon-holes may not be spacious.

Here are some case laws mentioning clearly that the law of tort is an emergent subject and we should negate Salmond’s pigeon-hole theory

For example: –

i. The tort of encouragement to a wife to leave her husband evolved in Winsmore v. Greenbank[3]

ii. The tort of deceit in its current form had its origin in Pasley v. Freeman[4]

iii. The tort of inducement of breach of contract had its origin in Lumley v. Gye.[5]

iv. The tort of strict liability progressed in Rylands v. Fletcher. [6]

There is no general principle of liability and if the petitioner is able to put his mistake in any of the pigeon-holes, each with a labelled tort, he/she will succeed. If there is no pigeon-hole in which the plaintiffs’ lawsuit may tally as well, the defendant has committed no tort.

Further, if there is no pigeon-hole in which the plaintiff’s case could fill in; the defendant has carried out no tort. The aforesaid pigeon-hole can be anything like the invasion of privacy, defamation, negligence (duty, breach, causation, proximate cause, damages), strict liability, conversion, assault, trespass, battery, fraud conversion, etc.

Salmond’s Theory and Winfield’s Theory in more Depth

According to Salmond’s, its a specific well-defined wrongs and there is only a law of torts and no law of tort. A person is entitled to file a suit against only that harm which comes within one of the categories of this law.

Specific verse like forgery, murder, etc. has certain specific torts and all other wrongs fall outside of this preview. Law of torts is always considered to be a set of need pigeon-holes which contains specific labelled torts. If the defendant’s wrong does not fit in any of these holes, he said to have committed no tort even though it is possible that he has committed a wrong in the eyes of the society. This is the nature of pigeon-hole theory and many people had supported this theory including Sir. Frederick Pollock.

On the other hand, Winfields failed to distinguish between crime, tort, breach of contract, and the breach of trust. According to him, any breach of duty always amounts to tort and he considers it to be the law of tort. Winfield’s also supported Salmond’s first alternative. Moreover, he stated that all injuries done due to another person are torts unless there is some justification recognised by the law to exclude. Therefore, this theory states that tort consists of nearly those wrongs which have acquired specific names and include the wider principle which says, “all unjustified harms are tortious”.

Supporting the Winfield’s view and keeping in mind the general meaning of tort- as a wrong, some specific kind of wrongs evolved through a process of exclusion of other kinds of wrongs like criminal and unjust life. Thus, the periphery of tort could be a civil wrong. All the civil wrongs are taught, but it is so only after the exclusion of breach of trust, breach of contract, and other obligations that are equal in nature. We have to ascertain the general principles of liabilities in tort to support Winfield’s view of certain tort. Essentials of a tort are an act or an omission and legal damage or injuria. Similarly, liability is also based on two premises that are negligence in case of ordinary torts, and intention oral motive in case of intentional tort such as an assault, malicious prosecution, battery, etc. The Doctrine of Prima Facie tort developed in America could be used as a good support to the Winfield’s view as the theory gives some general principles of liability for tort.

The lowest point of any sufficient legal official system of tort law is to guarantee a selection of scale of decent stability in the society.

Decent stability of society may possibly not be achieved if the associates feel free to assault or beat each other or incorrectly and wrongly imprison and confine each other without a justifiable cause or steal their chattels and infringe to their land, fume/burn the household, defaming in front of the third part is not acceptable. This kind of behaviour from the public and officials are unacceptable. Whether specific tort fit into Salman’s pigeon-hole theory or is left out to Winfield’s criterion of tort theory. This is called 2 in 1 tort.

CONCLUSION

Courts have widened the scope and Ambit of tortious liability exponentially after recognising these. “If men multiply, injuries, actions must be multiplied too, for every man who is injured ought to have recompense”. This quotation seems to be more accurate and therefore, whether specific torts fits into pigeon-hole theory or not, should not be material.

However, the faint excellence between the two theories is not immaterial. The Chronological view of the tort reveals it as its individual flexibility and its corrective nature. This illustrates the utility of remedy for conversion, that is the measure of damages in a claim for allowing the recovery of the full value of property and goods converted.

A flexible and remedial nature is giving vital importance to the nature of tort and it is mandatory to have a discussion on the same. Being a pot-lid theory, there should be a number of lids as to the number of pots, to cover the pots in order to show the consistency of a particular tort system requiring a particular result, but it is not all.

In conclusion, though the pigeon-hole theory seems to be simple, this subject matter is dreadfully expedient in ration a celebrity to devise and silky the growth of control and proving steps for many central exact problems. This belief is incredibly handy in our vivacity though it appears therefore simple. This principle furthermore can also be functional in our everyday life, whether we realize it or not.

Bibliography

[1] Allen v Flood [1898] AC 1
[2] Ananta Goswami vs Green Valley Travels (Pvt.) Ltd. AIR 1999 Gau 158
[3] Winsmore v. Greenbank (1745) Willes 577 (581)
[4] Pasley V. Freeman ((1789), 3 T. R. 51)
[5] Lumley v. Gye [1853] EWHC QB J73, (1853) 118 ER 749
[6] Rylands v. Fletcher [1868] UKHL 1
www.geeksforgeeks.org
Towseef Ahmad /International Journal of Advances in Psychology Research 2015; 3(03): 14-16.
Trebilcock, M & Veel, E., P. A Tamer Tort Law: The Canada-U.S. Divide.
http://buckleysmix.com/wp- content/uploads/2010/10/Trebilcock1.pdf/.
Introductory Combinatorics
www.legalservicesindia.com
www.legalservices.in
Law of Torts by B.M Gandhi

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This article has been written by Nimisha Mishra, a second-year student of NALSAR University of Law. In this article, the author has explained the various ways through which international disputes can be settled keeping in mind the advancing society. Keeping the rising disputes among states in mind the number of dispute resolution tribunals are also increasing.

INTRODUCTION

With the advancing society, there are agreements between the states and sometimes there are disagreements. Mostly the direct cause of war is a dispute between the states and it should be settled in the interest of security and peace. Some of the international states are mingling in disputes. With the growing demands in the state, there are growing disputes, not only between state and state but also between state and international organizations.

Most international disputes aggravate because of the fact that both the parties to the dispute are unwilling to agree on a point. This unwillingness of the parties disturbs the peace of the people belonging to the concerned state.

Role of International Court of Justice

International Court of Justice plays an important role in settling disputes because of its prestige and jurisdiction and also because it is a principle judicial organ of the United Nations.

United Nations plays an important role in settling disputes among states and organisations. Article 2(3) of the UN charter has codified that all the Member States of the UN have to settle their disputes in a manner which does not endanger peace, security and justice of any state. However, the UN charter does not define the way in which the disputes should be settled therefore the countries are free to decide in whichever way they want to settle their dispute. But still, they are refraining from aggravating the dispute. Dispute settlement charter plays an important role in determining the existence of international law obligation.

Various factors such as globalisation have a reallocated and redistributed the sovereign and economic power at the institutional level which is continuously emerging in developing countries. Sometimes this distribution of power creates false belief in the pretence of sovereignty, which creates hindrance in the proper enforcement of international dispute settlement. This creates primacy of sovereignty of the state over international law. To tackle such problems there are research guidelines available at International (Commercial) Arbitration, Permanent Court of Arbitration and the International Court of Justice. In recent time there is a trend of greater use of international dispute settlement because of the increased diversity and options of alternative dispute settlement. Although this leads to competition among the various alternative disputes settlement mechanism but it ensures that major issues such as global climate challenge is addressed at the international level.

The main purpose of the international dispute settlement is to maintain security and peace at the international level. For the implementation of the desired peace, the methods and procedures are already available in the International Law. There are various alternatives available to settle disputes. These include mediation, arbitration, conciliation, negotiation, judicial settlement and enquiry.

There are two types of International Dispute settlement mechanism based on their binding force, they are:

Diplomat Method of International Dispute Settlement
Adjudicative Method of International Dispute Settlement.

Diplomatic method of international dispute settlement

Diplomatic method of international dispute settlement includes negotiation, mediation and enquiry. This method generally does not have binding force on the parties to dispute. The suggestions provided by these are merely recommendations and it is up to the parties whether they want to follow it or not.

Negotiation

Negotiation is one of the simplest forms of settling disputes. Under negotiation concerned parties are required to put forward their point and understand the opinions of the opposition party. By following the procedure generally, parties are able to reconcile the difference. It also considered as a very satisfactory method to resolve depute since this method is voluntarily adopted by both the parties. However, it sometimes happens that both parties do not reach a consensus. It is then parties seek other diplomatic methods to settle the dispute.

Enquiry

In this method of dispute settlement, the facts of the dispute are jotted down through an impartial finding. The facts of the dispute are arranged in such a way as to come up with a solution which is peaceful. The result of the enquiry is not binding on the parties but in most of the cases, they do accept them.

In some cases, parties by themselves could not come to solution so in such cases it becomes essential that they should get assistance from the third party. There are various dispute resolving mechanisms where the party could get assistance from the third party, mediation is one of them. The third member who is assisting to resolve the dispute is a completely disinterested party. This third party could be a state, commission or an organization.

Mediation

In mediation, a neutral third party provide his assistance to the parties in dispute. Generally, the consent of the disputants is not required but without their consent, the mediation process could not be commenced. The mediator has an active role to play in the settlement. His engagement is not only limited till making negotiation possible, but he is also expected to provide a concrete solution in order to settle the dispute. Although his suggested solution is only a recommendation for the parties, it does not have a binding force. Parties are not under the obligation to follow the suggestion.

Adjudicative Method of International Dispute Settlement

Adjudicative Method of International Dispute Settlement has a binding force on the parties. The suggestions provided by these are not merely recommendations; they oblige parties to obey the suggestions. Because of its binding force, it is considered as a very effective and equitable way to settle the dispute. It is more flexible as compared to judicial settlement in terms of letting the parties decide the arbiters, and designate the seat of the tribunal. Generally, the proceedings of the arbitration are kept confidential.

Judicial Settlement

Judicial separation is also one of the forms of dispute settlement and it is more authoritative in terms of binding force. In this form of dispute settlement, an established court, for instance, the International Court of Justice, make a decision. The decision pronounced by the court is absolutely binding on the parties concerned. It is not merely a recommendation but an obligatory command which must be performed by the parties in good faith. It is a very rigid form to settle dispute since they are resolved by applying the rules of International Law.

CONCLUSION

With the developing states, the dispute arising are also of varying nature which cannot be settled by one or two dispute settling mechanism. Therefore there are emerging new ways to settle disputes in a peaceful manner. The above mentioned International Dispute Settlement mechanisms are just a few methods to show how disputes can be resolved. There are plenty of other peaceful ways through which disputes can be resolved non-violently. Efficient implementation of these methods can help creating peace all over the world.

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This article is written by Darshika Lodha, a BBA.LLB(Hons.) student of Unitedworld School of Law, Karnavati University. In this article, she is trying to explain the rights and duties of Indemnifier and discharge.

INTRODUCTION

An indemnity contract essentially involves one party promising to make good its losses to the other. These losses may arise either because of the conduct of the other party or because of someone else and discharge of a contract means termination of contractual obligations.

RIGHTS AND DUTIES OF INDEMNIFIER

The promisee acting within the scope of its authority shall have the right to recover from the promisee-

All damages which may be compelled to pay in any such suit in respect of any matter to which the promise to indemnify applies.
All costs which he may be compelled to pay in any such suit if, in bringing or defending it, did not contravene the orders of the promisor, and acted. It would have been wise for him to act in the absence of any indemnity deal, or if the Promisor had allowed him to bring or defend the suit.
All sums which may have paid under the terms of any compromise of any such suit, if the compromise was no contrary to the orders of the promisor; and was one which it would have been prudent for the promisee to make in the absence of any contract of indemnity, or the promisor authorized to compromise the suit.

In Bihal Chandra v. Chattur Sen (AIR 1976 ALL 506), where the seller had promised the purchaser to indemnify him against the fees, it was held, if any, that such indemnity clause would include only the existing fees and not those subsequently imposed, albeit retrospectively.

In Jaswant Singh v. Section of State 14 BOM 299, It has been decided that the rights of the indemnifier are similar to those of a security under Section 141, where it has the right to benefit from all the securities that the creditor has against the principal debtor, whether or not he has been aware of them.

Duties of Indemnity holder= Rights of Indemnifier:

In the following cases, the duties of the indemnifier arise:

Under the contract, there must be a loss to make the indemnifier liable.
There must be an event of anticipation. Without any occurrence of a prescribed event, the indemnifier shall not be compensated.
Where the right to indemnity is used prudently by the indemnity holder and the orders of the indemnifier are not infringed or where there is no breach of contract.
If the damages incurred by the indemnifier are not caused by neglect, haphazard conduct.

In Osman Jamal & sons ltd. v. Gopal Purushottam (1928 ILR 56 Cal 262), Repayment after payment is not necessarily covered by the held indemnity. Compensation requires that the party to be compensated should never be called upon to pay.

RIGHTS AND DUTIES OF DISCHARGE

A person is liable to perform the contracted duties until or unless he or she is discharged. If the individual fails to act without being discharged, responsibility for damages shall arise. The contract can be discharged by complete compliance or substantive non-performance of the contractual obligation. There is an “implicit covenant of good faith” in every contract that the parties will act fairly, keep their promises, and not frustrate the reasonable expectations of the other party as to what has been given and what has been received.

Full Performance

The full performance of the contractual duty shall be subject to the agreement.

Nonperformance, Material Breach:

Under UCC Section 2-106(4), a party that terminates a contract breached by the other party is said to have made a cancellation. The cancelling party retains the right to seek redress for breach of the entire contract or any unfulfilled obligation. The UCC distinguishes cancellation from termination, which happens when each party exercises a legal right to terminate a contract rather than for infringement. When a contract is terminated, all executory obligations shall be discharged on both sides, but the right to obtain damages shall survive if there has been a partial violation. Uniform Commercial Law, Section 2-106(3).

Substantial Performance

Logically, anything less than full performance, even a slight deviation from what is due, is sufficient to prevent the discharge of the duty and may constitute a breach of contract. In the classical common law: either you did the thing you promised completely, or you did the material breach. But, according to modern theories, an ameliorative theory has been established, called substantial performance: if one side has performed significantly, but not entirely, so that the other side has received a benefit, the non-committal party owes something for the profit it has earned.

In an important type of conflict over failure to perform, one party claims the right to pay on the ground that it has accomplished its work, while the other party refuses to pay on the ground that there is an uncured material failure to perform. In these situations, it is normal to claim that there has been significant work. The contest here is between the one who claims discharge in respect of the other’s material infringement and the one who claims that there has been substantial performance. The doctrine has no applicability if the violation party has knowingly refused to comply with the contract as if the plumber substitutes a different hawk for the one ordered; the installation of the incorrect faucet is a breach, even though it is of equal or greater value than the one ordered.

Anticipatory Breach and Demand for Reasonable Assurances:

If a promiser declares that he will not deliver until the time his performance is due, he is said to have committed an anticipatory violation (or repudiation). Of course, a person can not fail to perform a duty before the performance is due, but the law allows the promisee to treat the situation as a material breach which gives rise to a claim for damages and discharges the obligation to perform the duties required of him under the contract. Related to the concept of anticipatory infringement is the idea that the obligee has the right to seek reasonable assurances from the obligor that the contractual obligations will be fulfilled.

CONCLUSION

Thus, The indemnifier, having fulfilled his part of the promise, has no rights against the third party and may sue the third party only if the assignment is in his favour. On the other hand, infringing discharge is the most unpleasant way to free yourself from duties. Consequently, discharge by infringement also results in damages.

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This article has been written by Parul Sharma , pursuing BBA-LLB from Centre for legal studies Gitarattan International Business School GGSIPU. In this article, she has tried to explain about the Offences against the State.

Introduction

Chapter-VI of the Indian Penal Code, 1860 deals with offences against the state. It comprises of twelve sections commencing from the sections 121 to 130 and 121A and 124A which were added to the Code in 1870. The purpose of these codes is to ensure the safety of the State as a whole. The existence of the State can be safeguarded by giving severe punishments in case of offences against the State such as life imprisonment or the death penalty. Offences against the State also because the government to disturb the general public tranquillity, public order, and national integration. The offences prescribed under this chapter may broadly be classified into five categories depending on the gravity of the offences. These are:

Waging, collecting, concealing attempting, abetting, conspiring to wage, collecting arms, or ammunition to wage war against the govt. of India (IPC, sections 121, 121A, 122, 123)
Assaulting the president of India, or Governor of any State with intent to compel or restrain the exercise of any lawful authority (IPC, section 124)
Sedition IPC, Section-124A
Waging War against Asiatic Power at peace with the Government of India (IPC, section 125), or committing depredation on territories of such State (IPC, Sections-125 and 126)
Permitting or aiding the escape of a State prisoner or a prisoner or a prisoner of war (IPC, Sections-128, 129 and 130)

Waging, or Attempting to Wage War, or Abetting Waging of War, against the Government of India

Section-121 of the IPC says that whoever wages war against the Government of India, or attempts to wage such war, or abets the waging of such war, shall be punished with death, or imprisonment for a lifetime and shall also be susceptible to fine. The Code has incorporated the common law concept of preservation of State from any type of war situation and has even provided the most severe punishment of the death sentence or life imprisonment, and fine in case of offences against the state under section 121. The offence under this section is cognizable, non-bailable, non-compoundable, and prosecutable by the Court of Session.

Illustration – If a person joins an insurrection against the Government of India. Then this person has committed the offence defined in this section.
Ingredients of section 121 – To constitute the offence under section 121 of the IPC the following ingredients must exist: –

Accused must wage war, or
Attempt to wage such war, or
Abet the waging war of such war,
Against the govt. of India

Whoever – This section applies to everyone, whether it is an Indian citizen or a foreigner. Everyone who wages a war against the govt. of India is subject to prosecution and can be punished under this section. Foreigners are liable on the principle of de jure gentium which admits the rights of foreigners to enter the country only upon the tacit condition that as they depend on its protection, they’re also subject to its laws.

Waging War – In view of the gravity of the offence contemplated under this section the act of waging war, attempting to wage war and abetting the waging of war are treated on equal footing and the same punishment of death or imprisonment for life is prescribed in all the cases. In other words, the section deals with three stages of involvement in waging war against the Government of India which is abetment, attempt and actual war.

Case Law – In the case Parliament Attack ^[1], Terrorists entering Parliament House with arms and powerful explosives when Parliament was in session causing heavy casualties, shaking the entire nation, amounts to waging or attempting to wage war against the Government of India.

2. Conspiracy to commit offences punishable

Section-121A was inserted in the Indian Penal Code in 1870. Basically, this section says that the conspiracy to wage war against and overawe by criminal force the Central Government or any State Government is punishable with the imprisonment for a lifetime or imprisonment of either description which may exceed to 10 years and fine. The section punishes two kinds of conspiracy. The first is a conspiracy to wage war against the govt. of India, and the second is a conspiracy to overawe by force the Central govt. or State govt.

Ingredients of Section 121A –

To convict a person under Section-121A the following ingredients must be proved: –

That the accused had entered into a conspiracy,
The conspiracy was to commit an offence punishable under section 121A or to overawe by criminal force or to show of criminal force to the Central or State govt.

Under this section, the agreement of two or more persons to wage war against the govt. of India or any State govt. is sufficient to hold the accused liable. No act or illegal omission is necessary for such a conspiracy.

Case Law – In the case of S.H. Jhabwala v. Emperor^[2], the accused persons formed unions along the lines of Soviet Russian Unions and had an allegiance with Soviet Russia. The accused were charged and convicted by the Sessions Court under section 121A, IPC with conspiracy to wage war against the govt. of India.

3. Collecting arms, etc., with intention of waging war against the Government of India

Section-122 makes the act of preparing to wage war against the govt. of India punishment owing to the gravity and seriousness of the nature of the offence in contemplation to overawe by force the Central or State govt. established by law. Thus, the act of collecting men, ammunitions, or to make other preparation with an intention to wage war against the govt. of India or on territories of States at peace with India was punishment under sections 122. The punishment may extent up to imprisonment for life, or imprisonment of either description for a term not exceeding ten years, or fine. The offence under Section 122 of IPC is Cognizable, non-compoundable, non-bailable, and prosecutable by the Court of Session.

Illustration – A collected a group of men and told them to bring weapons which included guns intending to attack a building which was a govt. authority. Hence, he is liable under section 122 of IPC.

Ingredients of section 122 – To invoke Section 122 of IPC, the following ingredients must be satisfied: –
An individual collects men, arms or ammunition, or otherwise prepares to wage war, and
He does so with the intention of either waging war against the govt. of India or being prepared to wage war against govt. of India.

4. Concealing with intent to facilitate design to wage war

Section-123 of the Indian Penal Code states that whoever, by any act, or by any illegal omission, conceals the existence of a design to wage war against the govt. of India, intending by such concealment to facilitate, or might be knowing that such concealment will facilitate, the waging of such war, shall be punished with imprisonment of either description for a term which can exceed up to ten years, and shall also be liable to fine. The object of the section is to ensure that the information should not be withheld from the police who are to take proper steps for the suppression of such crimes. The offence under section 123 is cognizable, non-bailable non-compoundable, and prosecuted by the Court of Session.

Illustration – In the Parliament attack case, the accused had information of conspiracy along with a plan of terrorists. Thus, his illegal omission made him liable under Section 123 of the IPC.
Ingredients of section 123 – The essential ingredients to invoke this section are as follows: –
An individual commits an act or illegal or mission;
He thereby conceals the existence of a design to wage war against the govt. of India.
The person should be knowing about the concealment of the design.

Case Law – In Shaukat Hussain guru v. State National Capital territory, Delhi ^[3], the accused knew about the conspiracy and the plans to attack the Parliament House. He refrained from informing the police or Magistrate and hence made himself liable for rigorous punishment of 10 years with fine under section 123, IPC.

5. Assaulting President, Governor, etc., with intent to compel or restrain the exercise of any lawful power

Section-124 makes any assault or wrongful restrain committed on the President of India or Governor of any State, who are the highest executive officers of the Government, an offence. Basically, this section is an extension of section 121A of IPC which makes conspiracy to overawe by means of criminal force or show of criminal force govt. of India or any state govt. punishable. The section provides for deterrent punishment of imprisonment of either description extend to 7 years with fine. The provisions are based on the principle that the high officers of the State, who are required to run the administration of the govt. should be free from the fear of personal harm and injury while discharging their legal duties.

The essential ingredients to invoke this Section are as follows: –

The accused should have assaulted the President or the Governor of any State
The accused should have wrongfully restrained the President or the Governor
The accused attempted to assault or wrongfully restrain the President or the Governor
The accused attempts to instigate or influence the President or the Governor with force or show of force with an intention to compel them from exercising or refraining from exercising their powers.

6. Sedition

Section-124A deals with sedition. Sedition is nothing but defamation of the established authority of law i.e. Government. This Section states if any person who by either words no matter written or spoken or either by signs or by visible representations otherwise, brings or even attempts to bring hatred or excites disaffection (including the feeling of enmity and disloyalty) towards the govt. of India, is punishable with life imprisonment along with a fine in certain cases or imprisonment for up to 3 years along with a fine in certain cases or fine. The expression ‘brings or attempts to bring into hatred or contempt’ in the section, attempts to not interfere or interfere less with the freedom of speech that is a fundamental right given in the Indian Constitution under Article 19. The expression ‘established authority of law’ refers to the existing political system which includes the ruling authority and its representatives. In other words, it refers to the people who are authorised by law to administer the Executive govt. in any part of India. It also includes the State as well as the Central govt. The offence under section 124A of IPC is cognizable, non-bailable non-compoundable, and prosecutable by the Court of Session.

Illustration – The writers in the public press are not allowed to write or get involved in improper or dishonest motives. A writer when publishes an article with a calm, unsentimental and dispassionate view, and discusses his little views that may or may not cause an individual to think, are not considered to be seditious. However, if the article goes beyond and contains improper, corrupt, and dishonest motive, then such an article is considered to be seditious.

Explanation 1 – The expression “disaffection” includes disloyalty and all feelings of enmity – Excite Disaffection

The expression disaffection may be defined as primarily meaning the contrary to affection, and it goes very much towards expressing the same as hatred or dislike. It may cover something, perhaps a little different from the expression hatred, because it includes disloyalty. To urge people to rise against the govt. is tantamount to trying to excite feelings of disloyalty in their minds. Feelings of enmity include ill-will, hostility, feelings of dislike amounting to enmity, and anything of a similar class or character, which can be demonstrated under the expression disloyalty and feeling of enmity.

Explanations 2 and 3 – Expressing Disapprobation

The phrase ‘expressing disapprobation’ can be simply defined as expressing disapproval. Explanations 2 and 3 give a profusion of options for people to make comments expressing disapprobation of the measures of the govt. It is done in order to obtain their alteration by lawful means or other govt. actions. All this can be done without exciting hatred or exciting disapprobation of the govt.

Explanation 2 and 3 have restricted scope and are strictly defined. Thus, the objective of these explanations is to protect bonafide criticism of public measures as well as their institutions, in order to improve. It is the right of the free press in a free country to accelerate changes in policy by criticising such measures. Nowadays, the freedom given to media is much more when compared to earlier years or pre-independence.

Ingredients of section 124A – Following are the essential ingredients of this section:
Bringing to attempting to bring into hatred
Exciting or attempting to excite disaffection against the govt. of India;
Such an act or attempt might be done-
by words, either spoken or written, or
by any signs, or
visible representation
The act must be intentional
Case Law – In Tara Singh v. State of Punjab ^[4], Section 124A, IPC was struck down as unconstitutional being violative of the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution. The difficulty exposed by this case was averted by the Constitutional First (Amendment) Act, 1951 which added the words ‘in the interest of’ and ‘public order’ to Article 19(2) of the Constitution. These words imposed legislative restrictions on freedom of speech and expression.

In Kedar Nath v. State of Bihar ^[5], Section-124A, IPC was held to be constitutional and not in contravention of Article 19(1)(a) of the Constitution as it is saved by the expression ‘in the interest of public order’ in Article 19(2). ‘Government established by law’ is a visible symbol of the State. Thus, the continued existence of the Government established by law is an essential condition of the stability of the State. The very existence of the State is going to be in jeopardy if the govt. established by law is subverted.

7. Waging war against any Asiatic Power in alliance with the Govt. of India

This section is based on the principle of international peaceful co-existence and desire on the part of the govt. to remain in a friendly relationship with its neighbours. Thus, the section makes waging, abetting, or attempting to wage war against any Asiatic Power in alliance with the govt. punishable with imprisonment for life, or up to 7 years of imprisonment, to which fine may also be added. The offence section 125 of IPC is cognizable, non-bailable non-compoundable, and prosecutable by the Court of Session.

– The following are the essential ingredients of this Section: –
There must be an Asiatic State along with an international influence.
Such a State should be other than India.
Such a State should be in alliance with or at pace with the govt. of India.

8. Committing depredation on territories of Power at peace with the Government of India

Section-126 makes depredation, robbing, or plundering an offence, whereas section 125 deals with waging of war. The scope of section 126 is wider than that of section 125 as the latter deals with the waging of war against Asiatic Power in alliance with the govt. of India whereas the former section applies to the power which may or may not be Asiatic.

Depredation means to plunder, or rob. To invoke this section there must be a raid by a group of men into a foreigner territory for the purpose of robbery, plunder or laying waste. Punishment under this section may extend to 7 years of imprisonment of either description with fine and confiscation of property used or intended to be used in committing such depredation. The offence section 126 of IPC is cognizable, non-bailable non-compoundable, and prosecutable by the Court of Session.

The essential ingredients to invoke section 126 under IPC are as following:

The accused must commit or prepare to commit depredation
The act must be done on the territories of any power which is in alliance with or at peace with the govt. of India.

9. Receiving property taken by war or depredation mentioned in sections 125 and 126

Section-127 makes a person liable only if he knowingly receives property taken by war or depredation against a friendly State as defined under sections 125 and 126, IPC. The offence under this section is prescribed imprisonment which may extend to 7 years and fine and confiscation of property as well. The offence section 127 of IPC is cognizable, non-bailable non-compoundable, and prosecutable by the Court of Session.

The essential ingredients to invoke section 127 under IPC are as following:

The accused might have received any property.
The accused must have been received the property by waging war with a Power at peace with the govt. of India or by committing depredation on its territories.

10. Public servant voluntarily allowing prisoner of State or war to escape

To bring an action under Section- 128, the accused must be a public servant, he must have custody of the prisoner, the prisoner must be a state prisoner or a prisoner of war, and the public servant must voluntarily allow such prisoner to escape. The punishment prescribed under the section is to the extend of life imprisonment or imprisonment of either description for a term which may extend to 10 years and fine in case a public servant voluntarily allows a prisoner to escape from his custody. The offence section 128 of IPC is cognizable, non-bailable non-compoundable, and prosecutable by the Court of Session.

The accused should be a public servant or
The confined person should be a prisoner of State or war or
Such prisoner should be in the custody of the accused person or
The accused servant should have allowed such a prisoner to escape voluntarily

11. Public servant negligently suffering such prisoner to escape

The offence under Section-129 is similar to that of section 128, except for the fact that under section 129 the public servant is negligent in discharging his duty in keeping the prisoner in custody, whereas in section 128 the act is intentional in allowing the state prisoner or prisoner or war to escape from the custody. The section provides punishment which may extend to 3 years of imprisonment and fine. The offence the section 129 of IPC is cognizable, bailable non-compoundable, and prosecutable by Magistrate of First Class.

The accused should be a public servant, surely at the time of committing the offence.
Such a prisoner should be in the custody of the accused person.
Such a prisoner should be rescued or escaped.
Such an escape or rescue should be because of the negligence of the accused.

12. Aiding escape of, rescuing or harbouring such prisoner

Section-130 deals with aiding the escape of, or rescuing or harbouring a state prisoner or prisoner of war who has escaped from lawful custody. The punishment under this section may extend to life imprisonment or imprisonment of either description which may extend to 10 years, and fine. The offence section 130 of IPC is cognizable, non-bailable non-compoundable, and prosecutable by the Court of Session.

Ingredients of section 130 – The essential ingredients of this section are:
The accused knowingly aids or attempts to aid, rescue, harbour or conceal such prisoner.
Such a prisoner should be in lawful custody.
The act or omission should be done intentionally or knowingly.

Conclusion

Offences against the State play an important role in regulating and maintaining public order. The people of the State have a right to criticise the policies of the govt but they should not misuse their liberty to cause harm the people around them or the govt. Waging war against India and against power is a punishable offence. The law protects the high officials, such as the President, the Governor of every State etc. in case of an assault against them. And most importantly, sedition is considered to be one of the most dangerous cognizable offences against the State. Thus, it can be concluded that the State needs to restrict the freedom of the people of the country for the betterment of the State.

Citations

^[1] State (N.C.T. of Delhi) v. Navjot Sandhu @ Afsan Guru (2005)11 SCC 600, AIR 2005 SC 3820

^[2] AIR 1933 All 690, 145 Ind Cas 481

^[3]AIR 2008 SC 2419

^[4]AIR 1951 EP 27

^[5]AIR 1962 SC 955

References

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This article is written by Pranit Bhagat pursuing B.A LLB from ILS Law College, Pune. In this article, he has briefly discussed the offences against public tranquillity with case laws related to it.

Introduction

The public tranquillity is offences which are not only against the person and property of an individual but also an offence that is against the state. Tranquillity can also be stated as the quality or the state of being tranquil. These offences are group offences that are generally committed by the large number of persons resulting in disturbance of public tranquillity.

The public tranquillity is the group of persons doing an activity that causes the disturbance of peace in the society. As per this provision when a large number of persons engage in a criminal act with a common intention then each of the persons is made liable. These offences are classified into four categories as unlawful assembly, rioting, promoting enmity between different classes, and affray. For the development of society, there must be peace in society. But these offences are injurious of the public peace.

Chapter-VIII explains the provision of the offences against the public tranquillity. It is necessary to study the offences that are affecting public peace in society. To know about the offences against public tranquillity, Research has been made. The main aim of the research is to find the offences that are against the public tranquillity. From this research, we can come to know something about the public tranquillity and the offences that are against the public tranquillity. The study deals with the offences that are against the public tranquillity. Statistical data about the offences against public order in different years are discussed systematically. These offences are injurious to the public peace. So research is made to study the public tranquillity. The definition of public order is given in Section-31 of the Police Act, 1861 and requires that order will be maintained in public roads, etc. The State has a primary duty of maintaining public order. Any disturbance of the public through the use of either force or violence or in the name of the regional group may lead to the offence of public tranquillity.

For the development of society, there must be peace in society. Hence the framers of the Code incorporated these provisions stating and defining the offences which are against the public tranquillity. This paper attempts to study the offences that are relating to public tranquillity and the punishments given for the people indulging in activities that are affecting the public peace and order.

Peace and Morality

Peace and morality are the bases for the formation of society. When something happens and that affects the peace and morality in the society then it is considered to be the offence. Such offences are punishable under IPC. These offences are unlawful assembly, rioting, affray, etc. Indian constitution provides the legal framework to maintain the public order in society. Disturbed conditions spoil the progress of society. The economic progress of the country is reduced by public disorder and disturbs conditions.

Waging war against the state

IPC Section-121 talks about three aspects such as the abetment, attempt, and the actual war. All three aspects are punishable offences according to the IPC waging war in the highest offence against the state. Section-121A deals with the conspiracy to wage a war and the offence are punishable under Section-121A. To speak broadly all the offences which are against the state disturbs the public peace. Creating enmity between different groups also comes under waging war against the state as it affects the public tranquillity and national integration. Section-121, 121A, 122, 123, 124A of IPC talk about the waging war against the state.

Offence against public tranquillity

Chapter-8 of the Indian penal code contains the provisions that are relating to the offences against the public tranquillity or public order and it is not the offence against the person and property of an individual, it is the offence against the state. The offences specified, in their chapter are called group offences which are generally committed by a large number of people that result in disturbing the peace of the people. The offences may be classified as unlawful assembly, rioting, promoting enmity, and affect. Chapter X of the Code of Criminal Procedure talks about the legal provisions for maintenance of public order and tranquillity and lays down the duties, powers, and functions of the Executive Magistrate and the Police on their behalf.

Section-141 – Unlawful Assembly:

An assembly which consists of five or more person is defined as unlawful assembly. If a person commits a criminal trespass or compels any person to do what he is not legally bound to do or to omit what he is legally entitled to do.

Using or showing criminal forces against the public servant, state or central government.
To resist the execution of the law or legal process.
To commit any mischief or criminal trespass on any person.
To use the criminal force and deprive the enjoyment of the right of any person or obtain the possession of another person.
To use the criminal force and compel a person to do what he is not legally bound to do.

The sections dealing with unlawful assembly are:

Unlawful Assembly – Definition – Section 141
Being a member of an unlawful assembly – Section 142
Punishment – Section 143
Join or continue to be in an unlawful assembly armed with deadly weapons – Section 144
Join or continue to be in an unlawful assembly, knowing it has been commanded to disperse – Section 145
Liability for constructive criminality – Section 149
Render aid in various ways – Section 150, 152, 154, 157, 158

This section has also specified the various instances where an unlawful assembly can be assembled.

Overawing the central or state governments or its officers
Resistance to the execution of the legal process
Commission of mischief
Forcible possession
Illegal compulsion

Ingredients:

There must be more than 5 members and a common intention of assembling together unlawfully in an unlawful assembly. There should be some criminal trespass or other offences. There must be some criminal force against the state or central government or any public servant. There must be a commission of criminal trespass or other offences. There must be the usage of criminal force and compel a person to do an illegal act.

Being a member of unlawful assembly:

Section 142 deals with being a member of unlawful assembly. Whoever renders of the fact that it is an unlawful assembly and intentionally joins in that, or continues in it is said to be a member of unlawful assembly. The mere presence of a person in that assembly does not constitute such a person as a member of unlawful assembly. When an unlawful assembly proceeds with a common object as mention in section 141 but a person withdraws form that assembly then it clearly shows that he or she is not a member of unlawful assembly. When a member of unlawful assembly has a common object but could not proceed due to the physical weakness or any other injury then such a person is said to constitute a member of unlawful assembly.

Common intention

The mere presence of a person in a place, where the members of the unlawful assembly have assembled does not incriminate him. The members of the unlawful assembly must possess a common object and intention and do any one of the acts as mentioned in Section-141 of IPC. When an unlawful assembly exercises the right of private defence and at that time when the opposite party attacks them, the right to private defence cannot be considered as the common intention. But when five or more people kidnap a woman and keep her in wrongful confinement then such assemblies are an unlawful assembly. As per this provision, every member of the unlawful assembly is punishable.

Exceptions:

An assemble of less than five members cannot be called as the unlawful assembly.

Punishment:

Section-143 punishes the person who is a member of the unlawful assembly. This section gives punishment which may extend up to six years or fine or both.

Rioting

IPC Section 146 and 147 talk about the act of rioting where section 146 covers the act of rioting and section 147 covers the punishment of rioting. In the case of Maiku v. State of Uttar Pradesh, The sub-inspector was investigated when he was on duty, he cannot be claimed that he was pursuing an unlawful act and therefore he cannot be convicted under section 147 of IPC. The punishment for an offence under 148 is prescribed as Imprisonment for 3years, or fine or both. It is a cognizable offence and it is Triable by any Magistrate of the first class. In the case of Allauddin Mian Sharif Mian v. the State of Bihar, There is a relation between a common object and offence created, when the offence is committed with a common object then every person is liable for that. Unlawful assembly is equal to five or more Persons plus a Common object. Rioting is equal to Unlawful assembly plus Violence. Section-153B of the act is punishable with Imprisonment for 3years or fine or both.

An explanation for rioting:

A riot can be defined as a form of civil disorder carried out by disorganized groups lashing out in a sudden and intense rash of violence against authority, property, or people. Many individuals can attempt to lead or control any riot which is typically chaotic and exhibit a herd-like behaviour generated by civil unrest. They often occur as a reaction for a perceived grievance or out of dissent. Poor working or living conditions, government, oppression, taxation or conscription, conflicts between races, food are some of the reasons due to which riots occur.

Punishment:

The punishment for an offence under 148 is prescribed as imprisonment for 3 years, or fine or both. It is a cognizable offence and Triable by any Magistrate of the first class.

Affray

Section-159 and 160 of the Indian penal code talks about the offences that are against affray. Affray can be defined as an offence by which two or more persons fight in the public place so that it affects the public order and peace. Depending upon the actions done those engaged in Affray may be liable to unlawful assembly, riot, and other offences. Section 160 deals with the punishment for Affray. The punishment may extend to one month or fine which may extend to ₹100 or both. To constitute this offence there must be: The fighting must be between two or more persons, the fighting must take place in some public place, it must cause some sort of terror among the people. In the case of Sunil Kumar Mohamed Alias Mahakhuda Vs. The State of Orissa, when one person beats on another person in a public place, no offence of affray is committed, when there is fighting in the public disturbing the public peace. The Ingredients for Affray to be committed are:

There must be two or more persons.
Fighting in a public place.
By that fighting, they should disturb the public peace.

Punishment:

Section-160 talks about the punishment for affray where Imprisonment up to one month or up to Rupees 100/- or both. It is given in the police act. Section 31 of the police act of 1861 states that an order should be maintained in the public roads and public places. Section 34 which make it an offence for any person to cause obstruction, inconvenience, annoyance, risk, danger or damage and section 23, which makes it incumbent upon the police to maintain the public peace and prevent the commission of an offence and of public nuisance, it is clear that public order really means that the actions of a group of individuals should not impinge on the rights and convenience of any other group.

Case Laws

• State of U.P vs. Sughar Singh

Five accused were lying in a bush on either side of a lane, with armed guns. When the deceased came near, the accused 4 and 5 exhorted him and accuses nos 1, 2, and 3 shot the deceased with their guns respectively. Accused 1, 2, and 3 threatened the witnesses. The trial court held that all of these were sufficient to conclude that these five accused had constituted an unlawful assembly and has members had a common object to kill the deceased. They had a prearranged plan. The trial court convicted the accused. On appeal, the high court quashed the conviction. The state appealed to the Supreme Court. The Supreme Court upheld the conviction against the accused.

• Aravindan vs. State of Kerala

A sudden quarrel arose between two parties. Each party abused the other party. There was no premeditated plan. All of a sudden, each party attacked others. The court held that neither of the parties would constitute to form an unlawful assembly

Conclusion

It is the fundamental principle of the state to maintain public peace and order. The definition of public tranquillity is given in section 31 of the Police Act of 1861. This act provides to maintain peace in the roads, public places, etc. Many provisions must be bought to maintain public order and peace in society. The criminal procedure code also provides certain provisions to maintain peace in society.

The unlawful assembly is also provided legally by the government but when it is done illegally or extended to rioting or Affray then it is punished by the sections of IPC. The India penal code punishes the offences against the public tranquillity. The public tranquillity is the criminal offences and it is injurious to the public peace for the development of the society. The study has statistical data about the offences against the public order is different years and discussed systematically. These offences are injurious to public peace. Disturbing peace in society creates inconvenience in society.

Tranquillity is the group offences committed by the group of people in society. As per the provision when a large number of people are affected then destroys the public peace which may turn into the offence against the public tranquillity. These offences are punished by the IPC strictly and imprisonment is given with fine.

Thus the offences relating to public tranquillity are strictly punished by IPC. These offences affect public peace and lead to disorder in the society. Thus by the alternative hypothesis, the Indian penal code strictly punishes the offences against public tranquillity.