In this article, Sagnik Chatterjee who is currently in 2nd Year pursuing BA.LL.B, from Symbiosis Law School, Pune, discusses about the topic Privileged Communications under the Indian Evidence Act.

Introduction

The privilege of a witness implies the privilege of a witness to retain proof to disclose certain issues. There are certain conditions in which certain people are not constrained to testify in the court of law (give evidence). The privilege depends on the convenience and public policy. Section 122 to Section 132 of the Indian Evidence Act 1872 talks about the provisions regarding Privileged Communications in India.

Definition of Privileged Communication

Privileged Communication by the term itself it is self-explanatory that it is a protected communication between two or more people which also means that under no circumstances the courts can force the individuals involved in the privileged communication to disclose the details of such and in case any lawyer of either side chooses to disclose such information that information will be regarded as inadmissible in the court of law. When two individuals enter into a legally recognized relationship, all communication that takes place between them is protected. This communication is known as privileged communication.

There are certain conditions to fulfil for information or communication to be regarded as privileged communication in the court of law and those are:

The communication has to happen only between the individuals who entered in a protected legal relationship and no third party should be involved,
The communication between the individuals has to happen in a private setting,
The information communicated between the individuals in a protected legal relationship should not be disclosed to a third party by any of them.

Privileged Communications are made in a private setting and are protected from disclosure to third parties. The rule of privileged communication exists because the privacy of confidential relationships is valued in the society. This is why they are not admissible as evidence.

Communications during marriage

Under Section 122 of the Evidence Act, the communications between a husband and a wife have been given the status of privileged communication. It states that a married person:

Shall not be compelled to disclose any communication made to them during the marriage by their spouse or ex-spouse.
They are not permitted to disclose anything without their spouse’s or ex-spouse’s consent even if they are willing to.

For the purpose of this Section, the communication between the Husband and the Wife has to be made only during their marriage for it to be considered as privileged. In case of any communication made before the marriage or after the dissolution of the same will not have this privilege.

In the case of S.J Choudhary v. The State[1], the Court held that the communications between the spouses are privileged and compelling them to disclose their such information is far worse than not getting any information at all and they are inadmissible.

In the case of Emperor v. Ramachandra[2], it was held that,

Any conversation or communication between a husband and wife is privileged no matter what the means of communicating was.

However, this rule was later overruled in the case of Bhalchandra Namdeo Shinde v. the State of Maharashtra[3], wherein the Court laid down that Section 122 must always be interpreted following the literal rule of interpretation only and thus it should not have any broad interpretations.

Professional Privileges

Section 126 of the Act says that – an advocate, lawyer, pleader or vakil is allowed to disclose any communication made to him by his client during the course and with the end goal of his employment without the assent of his customer. Communications made between a lawyer and his customer is a privileged one, and nobody can urge either the lawyer or his client to disclose anything with respect to the equivalent. In the case of Maneka Gandhi v. Rani Jethmalani[4], the Court observed that everyone has the right to a fair trial, and for obtaining such right one might need to seek help from an attorney.

The Attorney-Client privilege in India is governed by provisions under,

The Evidence Act, 1872,
Bar Council of India Rules, and
Advocates Act, 1961.

All together for a communication to be privileged under this section, the client-lawyer relationship must exist when the communication occurred. Any communication made with a lawyer before actually hiring or appointing him isn’t secured under this Section. Like Spousal Privileges, this benefit isn’t absolute either. The Act itself expresses that this privilege doesn’t make a difference under certain conditions. Communication in the facilitation of an illicit reason could be one case of the equivalent. Section 126 states that no lawyer or a legal counsellor can be allowed to reveal the classified information that,

The client disclosed to him, or
Any advice that the lawyer gave to his client

This section also states that the lawyer cannot disclose any contents of the documents that he became familiar with during the course of his employment and even after the termination of employment to ensure no harm caused to the Individual.

Religious and Spiritual Advisers

It is otherwise called priest-penitent privilege. This privilege doesn’t permit the conversations or information or confessions made to a minister priest or a religious advisor to be acquired court. The privilege is allowed so that an individual can take his religious guide in certainty and talk straightforwardly with him. It is pervasive among individuals of Catholic Religion. Catholics are required to admit their sins to priests, who are limited by Church Canon Law from making any divulgence.

Doctors and Psychologist

Doctor-patient confidentiality is the term used for the protected relation between a doctor and his patient. This protected relation makes all information exchanged between them privileged. The Medical Council of India can revoke the license of the doctor who breaches the confidentiality.

In India, various provisions deal with doctor-patient confidentiality;

Under Article 21 of the Constitution of India, any personal information of the patient is part of the right to privacy and hence the information doctors keep related to their patients is strictly confidential.
This right of the patient is also protected under the Indian Medical Council (Professional Conduct, Etiquettes and Ethics) Regulations, 2002.

Rule 7.14 of the regulations state that no registered medical professional is allowed to disclose the information about a patient, which he learnt during the exercise of his profession.

Exceptions

As well as the other privileges this one is also not absolute, a medical professional is only allowed to disclose information about a patient,

If the presiding judge in the court, orders to do the same;
If the circumstances are such that there’s a risk to the patient or the community at large;
If it is a notifiable disease.

State Privileges

Section 123 of The Indian Evidence Act expresses that no individual is permitted to give any proof that might be gotten from any unpublished records of any state affairs. Unless with the consent of the officer-in-charge or the head officer at the concerned office. Such an official can give or retain permissions regarding the same as he deems fit.

In the case of Duncan v. Cammell Laird and Co. Ltd[5], it was held that in the event that such a circumstance emerges, the Court will undoubtedly acknowledge the choice of the public officer with no inquiries. Further, the decision ruling out of such documents is completely at the discretion of the Judge.

Thus, the Court must determine whether any documents fall under this category, depending upon the facts and circumstances of every case. However, it is clear that only the Court has the power to decide whether any document can be classified as an ‘unpublished document of state affairs’.

Official Communications

Section 124 of the Evidence Act discusses official communications. It expresses that a public officer cannot be constrained to reveal any communication made to him in official confidence on the off chance that he accepts that such exposure could hurt the public interests.

While Section 123 discussions about unpublished archives or documents related to affairs of the state, section 124 limits the revelation of all communication made in an official capacity, be it recorded as a hard copy or not and it is insignificant whether they are in relation to state affairs or not.

On account of in re. Mantubhai Mehta, it was held that it is upon the Court to decide if a report is a communication made to a public officer l in legitimate certainty and if the record doesn’t manage any issues of the State, it might be taken up as proof.

While deciding if the communication was made in official confidence or not, just primary evidence must be utilized and the equivalent can’t be dictated by secondary proof, as laid down by the High Court of Madras in Sivasankaram Pillai v. Agali Narayana Rao[6].

Secret Informants

Section 125 of the Evidence Act states that a Magistrate or a Police Officer cannot be compelled to reveal as to how they got any information regarding the commission of a crime.

The section further states that a Revenue Officer cannot be compelled to reveal as to how he got any information regarding the commission of any offence against the public revenue.

Journalists

The privileged communication which secures journalists is called Reporter’s Privilege or Press-Source Protection Privilege. This benefit shields journalists from uncovering their sources. All though in India, the situation of the courts on this issue isn’t clear.

In India, the source protection privilege is allowed under The Press Council of India Act, 1978.

Section 15(1) of the Act expresses the general powers of the Press Council of India and Section 15(2) states that, despite the fact that the Press Council of India has been granted certain powers, it can’t constrain any paper, news organization, manager or writer to disclose the source of any news or data distributed by that paper or got or announced by the news office, editor or journalist.

Conclusion

There are a few relationships which are regarded as privileged. They are secured in light of the fact that an individual need to put his full certainty on the other and disclose some data which might be harming to him and his notoriety. This is the reason the law of privileged communication is fundamental as without this law, a client would consistently be stressed over his legal counsellor or lawyer unveiling data against him, or a patient would be stressed over his Doctor revealing his sensitive medical records and many more which is quite opposite of what we actually want in the society.

[1] 1984 AIR 618

[2] (1933) 35 BOMLR 174

[3] 2003 (2) ALD Cri 84

[4] 1979 AIR 468

[5] 1942 AC 624

[6] (1937) 2 MLJ 381

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This article is written by Mohit Bhardwaj, a BBA-LL.B student of Unitedworld School of Law, Karnavati University. In this article, I’ll he describes the meaning of tort and its various basic elements.

INTRODUCTION TO TORTS

The word tort is derived from the Latin term tortum which means twisted, crooked or unlawful i.e. the act which is not legal or which is not clear or which is twisted is known as a tort.

The person who commits a tort is known as a tortfeasor or the wrongdoer

Some definitions of torts given by learned scholars -:

Salmond – It is civil wrong for which the remedy is common law action for unliquidated damages which is not exclusively breach of trust or other merely equitable obligation.

Winfield- Tortious liability arise from the breach of duty primarily fixed by law,this duty is towards persons generally and its breach is redressable by an action of unliquidated damages.

An analysis of the several definitions of ‘Tort’ reveals several elements which can be laid down as,

1. A wrongful act or omission

2. Legal Damage and

3. Legal Remedy

The detailed discussion is as follows-:

1. A wrongful act or omission

The first essential ingredient in constituting a tort is that an individual must have committed a wrongful act or omission that means he must have done some act which he wasn’t expected to do or he must have omitted to do something which he was assumed to do. There must be a breach of duty which must be recognized by law, itself.

If an individual doesn’t follow that duty sort of a reasonable and prudent person or breaks it intentionally, he’s deemed to commit a wrongful act. To make an individual responsible for a tort he must have done some legal wrong that violates the legal right of another person, as an example, violation of the right to property, right of bodily safety, right of excellent reputation.

A wrongful act also refers to an overt act or an omission that may be committed by an individual either negligently or intentionally or perhaps by committing a breach of duty, for example, driving a vehicle at an excessive speed.

A wrongful act may be civil or criminal. Tort belongs to the category of civil wrongs, the injured (plaintiff) party initiates civil proceedings against the wrongdoer (defendant). The casualty is compensated by the defendant for the injury caused to him by another party. It is to be noted that the wrongful act or omission must be recognized as unlawful. Therefore a mere social wrong or moral wrong is not enforceable in the court of law, e.g. if somebody fails to assist a starving man or save a drowning child is simply an ethical wrong hence not liable.

Some examples of wrongful acts are-:

Erection of wall– If a person erects a wall into the premises of another person.

The escape of dog– If an individual owns a dog and if he keeps the dog escape which dog injures a person then the owner of the dog is going to be held responsible.

Trespass- If somebody enters the premises of others without permission.

Case-1 Glasgow Corporation v Taylor [1922] 1 AC 44

In this case, the corporation fails to place proper fencing to stay the youngsters faraway from a toxic tree and a toddler plucks and eats the fruits orchestra the poisonous tree and dies and the corporation did nothing to stop the damage, so they will be responsible for such omission.

Case-2 General cleaning corporation Ltd V. Christmas 1953 AC 180

In this case, the employer didn’t provide a secure system of labour for his or her employee, Mr. Christmas belt for a secure system of work responsible for the consequence of such omission. The employer contains a duty to produce safety instructions. Thus, an employer should take guardianship to produce a secure system of labour for his or her employees, whether they have years of experience or not.

A tort is other than the breach of contract or breach of trust, to come to a decision whether the incorrect maybe a tort or not, the subsequent steps are to be followed,

(a) Whether the wrongful act which is committed is civil or criminal.

(b) If it’s a wrongdoing, it’s to be further seen that whether it belongs to a different recognized category of the civil wrongs, like a breach of contract or breach of trust.

(c) it’s only the wrongful act doesn’t belong to the other category of the wrong that’s, breach of contract or trust, it’s a tort and if the act may be a breach of contract or trust, it’s not a tort. However, if the act involves two or more civil wrongs, one among which can be a tort, in such a case casualty one can either claim damages under the law of torts or under another breach of wrongdoing, as an example, breach of contract, but cannot claim damages twice.

Legal Damage and Legal Remedy

To constitute liability in tort there must be legal damage or there must exist injuria which implies infringement or violation of legal rights. The significance of legal damages is expressed by two maxims, “Injuria sine damnum ‘Injuria’ refers to infringement of a right, and also the term ‘damnum’ means substantial harm, loss, or damage. The term ‘sine’ means without. However, if there’s no violation of a right, no action can be taken against the defendant despite any loss or damage caused by his action. This can be expressed by the maxim ‘Damnum sine injuria.

Award of damages is an ordinary and essential remedy in torts. Legal Damage is the prime remedy available in torts. The law of tort is claimed to be a development of the maxim ‘Ubi jus ibi remedium’ which implies wherever there’s right there’s a remedy. So right must be followed by remedy.

So these are the essential elements of the law of torts which might be inferred from the assorted definitions of torts.

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This article has been written by Tanya Gupta, pursuing BA- LLB from Ideal Institute of Management and Technology and School of Law, affiliated to Guru Gobind Singh Indraprastha University, Delhi. This article focuses on the position of minor under Indian Contract Act, 1872 and the effects of minor’s agreement.

Introduction

A contract is a legally binding agreement that recognises rights and duties of the parties to the agreement. Section 10, Indian Contract Act, 1872 discuss what all conditions must be fulfilled in an agreement in order to constitute a contract.

Can anyone form a contract under the Indian Contract Act, 1872? No, there are certain people who are competent to form a contract. It is Section 11, Indian Contract Act, 1872 which discuss about that who are competent to contract:

Firstly, it states that every person is competent to contract who is of the age of majority, which means an individual who has attained the age of majority i.e. eighteen years may form a contract. Secondly, it states that every person who is of sound mind is competent to contract. Thirdly, it states that every person who is not disqualified from contract is competent to form a contract.

The Indian Majority Act, 1875 provides a clear picture as Section-3 of the Indian Majority Act, 1875 states that any person domiciled in India shall be deemed to attain majority only when the person has completed eighteen years and not before it.

Nature: Minor’s Agreement

1. Void – ab -initio

Void-ab- Initio means void from the very beginning. So, the contracts made by a minor are considered to be as void-ab-initio. These contracts are not valid. An agreement with a minor does not create any legal rights and obligations between the concerned parties.

Position of minor before Mohori Bibee v. Dharmodas Ghose, 1903:

Before passing the judgement of this landmark case, it was felt that the phrase in Sec 11, Indian Contract Act,1860 “no person is competent to contract who is not of the age of majority…” has two interpretations:

A minor is absolutely incompetent to contract; the agreement with minor considered as void -ab-initio,
An agreement with the minor considered as voidable, the minor is not liable but the other party is liable.

It created a lot of confusion that whether minor’s agreement considered as void or voidable.

A landmark case: Mohori Bibee v. Dharmodas Ghose, ILR (1903) 30 Cal. 539 (PC)

This case brings forth a landmark judgement regarding the effect of minor’s agreement and solved the issue of whether a minor’s agreement is void or voidable. In this case, the plaintiff (Dharmodas Ghose), when he was a minor, mortgaged his property to a money-lender, the defendant (Brahmo Dutt) to secure a loan of Rs. 10,500. At that time though, the attorney of money-lender knew about the fact of his minority. Money-lender was then, sued by the minor for asking for repayment of the loan. Brahmo Dutt had died by the time of Appeal and it was hence prosecuted by his executors. The defendant contended that:

Law of estoppels should be applied against a minor, since he fraudulently represented his age and that he cannot refuse his previous representation by taking a dual stance.
If the mortgage is cancelled, the loan amount should be paid back to him by the minor, under Sections 64 and 65 of the Indian Contract Act, 1872.

The Privy Council rejected the defendant’s contention and held that:

Minor’s agreement was held to be void ab initio and that plaintiff cannot be made to repay the amount back to the defendant. Minor was allowed to plead his minority and hence, the agreement was made void.
Law of estoppels, as stated in Section 115, Indian Evidence Act, was not applicable in this case, as the attorney had the knowledge of the true facts and was not misleading.
Section-64 says that if a contract is voidable at the option of a party, rescinds it, the other party need not perform the promise and the party rescinding it, must restore the benefits accrued by him under the contract to another party. The Privy Council held that this Section would not be applicable in the case because it relates to voidable contract and not void contracts. Moreover, the section pertains to competent parties, and not incompetent parties making a contract as in the present case.
Section 65, which says that benefits, if any, accrued through a void agreement, must be restored to the other party. The Council rejected the applicability of this section too in the present case and held that minor cannot be asked to repay back the loan amount.
The defendant claimed refund of loan money even under Section 41, Specific Relief Act, 1877, which requires the party to whom relief is granted to make any compensation to other on the adjudication of cancellation of an instrument. The Privy held that since knowledge of infancy was known to attorney, the return of the money advanced to the minor was not required.

Hence, an agreement made with a minor is void ab initio.

Effect: Minor’s Agreement

The main reason behind the effects of the minor’s agreement is the nature of an agreement with the minor. The nature of the agreement with the minor is void-ab-initio, that is why the minor cannot liable for his actions. There are also some conditions for his act by which he enjoys some benefits or otherwise not. When he is minor means doli incapax not able to understand the nature and consequence of his act. But as soon as he attained the age of majority, he becomes doli capax means reasonable knowledge to understand the nature of his actions as well as a consequence.

Now, let’s discuss the effect of minor’s agreement. Following are the effects:

1. No estoppel against a minor:

The word estoppel means prevention of claim. In other words, it means someone makes another person to believe that particular thing or fact. If minor fraudulently enter into a contract by believing that he is major, but in reality, he is not, then, later on, he can plead his minority as a defence and cannot be prevented from doing so.

Section 115 of the Indian Evidence Act, 1872, lay down the law of estoppel but the Indian Contract Act makes it clear that a minor is incompetent to contract thus a minor cannot incur liability under any contract and the rule of evidence cannot be invoked to defeat this section.

2. Minor as an agent:

Agent acts as a connector between the principal and third party. Minor can be appointed as an agent but he is not personally liable for his actions. He is personally not liable for his actions as he has not sufficient knowledge for his acts. He is doli incapax that is not able to understand whatever he is doing. He is also will no be responsible to his principal. Different types of agent like brokers, auctioneers etc. There is a creation of the agency, either by express or implied contract it means the principal may appoint an agent through writing or an orally.

3. Minor as an insolvent:

Firstly, understand the meaning of term insolvent means when the liabilities of a person are more than the assets. A minor cannot be declared as an insolvent. This so because all agreements with minor is absolutely void.

4. Minor as a partner:

A partnership is defined as the relation between persons who have agreed to share the profits of a business carried by an all or any of them acting for all. Sec 30, Partnership Act, provides that though a minor cannot be a partner in a firm, but with the consent of all the partners, for the time being, he may be admitted to the benefits of partnership by an agreement executed through his guardian with the other partner.

So, minor cannot become a partner in the firm but he enjoys all the benefits of a firm with the consent of all other partners. If the majority of the partners agrees or give consent that minor enjoys the benefits of the firm then he can enjoy or otherwise not. The minor has the right to inspecting the taking copies of the books of account of the firm. On attaining the majority or on knowing that he had been admitted to the benefits of partnership, whichever is later, the minor must decide within six months whether he would like to become a partner in the firm and give public notice of his decision. If he fails or remains silent to give such a notice, it will be presumed that he has elected to be a partner in the firm. As after attaining the age of majority, it is presumed that he becomes doli capax means able to understand the nature and consequence of his act.

5. Restoration of Money or Property:

Sometimes, a minor receives some money or property by falsely representing their age. In such cases, the minor can be asked to restore such money or property so long as traceable in his possession.

6. Ratification of minor’s agreement:

As we all know that the nature of an agreement with minor is void. An agreement with the minor cannot be ratified even on the minor attains the age of majority according to the Indian Majority Act. But, when he attains the age of majority, if he makes a new promise for fresh consideration, and this new promise will be binding on all because the reason behind it the agreement with the major is valid as according to the requirements or an essentials for making valid contract stated under section 11 of the Indian Contract Act, 1872.

7. Necessities supplied to a minor (Section-68, Indian Contract Act,1872):

The general rule is that if a person is incapable of entering into a contract is supplied by another person with necessities of life, the person who has supplied is entitled to get reimbursement from the property of such incompetent person, including a child as well.

Conclusion

Section 11 of the Contract Act, 1872 explains the requirements of competency for entering into contracts. Individuals or entities can create contracts only if they meet these requirements. The very first such requirement is that of majority age according to Indian Majority Act. If he makes a contract if he is minor then it will result into void-ab-initio means void from the very beginning. With an essential specified under section 11, Indian Contract Act,1872 we must also have to fulfil the conditions enshrined under section 10 of the Indian Contract Act. The general rule of contracts is that every person, whether natural or artificial, can enter into contractual obligations. Section 11, however, lays down certain exceptions. For example, minors, persons of unsound mind and those whom the law specifically disqualifies are the exceptions.

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This article has been written by Anurag Maharaj, a student of law at Lloyd Law College, Greater Noida. In this article, he has tried to define crime and Constituents of crime.

Introduction

A Crime is an action or omission that is punishable by law and constitutes an offence. It is an act that harms not only the individual but also the community, society or state. The main reason for committing a crime is greed, rage, jealousy, revenge or pride.

There are various stages of Crime:-

The motive is the first stage of a criminal offence.
The second level of the crime is preparation.
The third stage is an attempt.
The fourth stage is the achievement.

Elements of a crime

There are four elements of a crime:-

Human being (Accused person)
Mens rea (guilty mind)
Actus reus (wrongful act)
Injury (harm caused to someone)

Accused Person

Human beings must perform unlawful acts to satisfy the first aspect of a crime. The term accused “person” does not imply that crimes can be committed only by a human being. The word “individual” also includes a corporation and an association or body of persons according to Section 11 of the IPC. Thus even a trust, an NGO, and a public corporation can commit crimes. Any non-living object or animal shall not be included in an individual or a human category. The person accused must be a human. If animals cause injury to someone, we do not make animals liable, but the human being is liable for such injury caused to someone, so human beings are the very first element of the crime. Some offences can involve more than one person for the same crime. In such cases, all persons will face trial and may face joint punishment.

Mens Rea (Guilty Mind)

Without an intention, a crime cannot be committed. “Mens rea” means “guilty mind”. It has been derived from the famous maxim “Actus Non-Facit Reum Nisi Mens Sit Rea”. This maxim has two parts namely mens rea and actus reus which means guilty mind and guilty act respectively. So, to constitute a crime both are necessary. With a guilty act, there must be a guilty intention and the intention must be to cause harm to the other person. But, there may be certain crimes without mens rea. For example, IPC section 304-A renders death a criminal offence by negligence. In such cases, the intention to cause death would not be included in a “negligent act.” Negligence or mistake itself is enough to constitute a crime.

Actus Reus (Guilty Act)

Actus reus applies generally to a wrongful act that leads to the execution of an offence. Both mens rea and actus reus are relevant together for creating an offence. It’s not enough to hold a culpable mind and dream about committing a crime. The accused must also act in accordance with that intention and do a wrongful act.

There are two types of Actus reus, the first one is commission and the second one is an omission. The commission is the result of voluntary body movement as a criminal activity. This describes a physical activity that is harmful to a person or property. It includes acts which are against the human body and nature such as physical assault, murder, hurt, grievance, theft etc. Another form of Actus Reus is an omission. An omission could be failing to warn others of the dangerous situation that you created. Actus reus can be a successful act if the act has been completed. It can also be an omission to do an action (failure).

Injury

It is the last requirement of a crime to be said to be committed. As if the person has not been suffering any injury or harm, then it will not be a crime. So, there must be some injury caused. “Injury” means any harm caused to a person illegally, either in mind, body, reputation or property, as stated under section 44 of the Indian penal code. There are certain acts which do not involve harm to anyone but it constitutes a crime such as For driving a vehicle without a driving license is a crime, even though it may not harm anyone.

Case Laws

Om Prakash vs. Punjab

In this case, a person caused death to his wife by doing a wrongful act. He hasn’t given his wife the food for several weeks, which is the basic requirement for survival. This act is inhuman and against the nature and body of human being. So, he had been charged with murder as this act was done with proper intention and knowledge, that food scarcity will cause death to his wife

R. vs Smith

In this case, the defendant, a soldier got into a fight in an army and stabbed another soldier. The wounded soldier was taken to a hospital but dropped twice on the way. Hospital failed to diagnose that his lung was punctured and the soldier was dead. The defendant was convicted of murder, and the appellant contended that he would not have died if the victim had received proper medical treatment. The stab wound was held to be enough to cause death and therefore he was convicted of murder.

R vs PRINCE

Prince took a girl below the age of 16 from her father’s position and against her father’s will. Prince claimed that the girl had told him she was 18 years old, and that the intention was bonafide as she looked like 18 years or older. In this case, the court held that he could not be given the benefit of Mens Rea doctrine because this is the case of mistake of law, it is unlawful to take away a girl below 16 yrs and therefore he was held guilty.

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This article is written by Yash Soni, a Second Semester student pursuing LL.B. from Shaheed Bhagat Singh Law College affiliated to CSJM University. This article deals with the meaning, explanation between Criminal force and assault.

INTRODUCTION

In a nation like India. We can generally find in the reports ranging from wrongdoing to Physical violence such violations are normal in our nation and happen pretty much every day, individuals were confronting many issues, the legislature needed to step in thus they made certain laws that guaranteed severe discipline to each individual who carried out such wrongdoing and in this manner, it reduced to the number of such wrongdoings in our nation.

Force

Prior to Discuss Criminal Force, We have to comprehend what Force is? Force has been defined under section 349 of Indian legal code

“A person is claimed to use force to a different if he causes motion, change of motion, or cessation of motion thereto other, or if he causes to any substance such motion, or change of motion, or cessation of motion as brings that substance into contact with a part of other’s body, or with anything which that other is wearing or carrying, or with anything so situated that such contact effects that other’s sense of feeling: as long as the person causing the motion, or change of motion, or cessation of motion, causes that motion, change of motion, or cessation of motion in one among the 3 ways hereinafter described.

By his bodily power.
By removal of any substance in such a way that the motion or change or cessation of motion takes place with no further action on his part or the part of any other person.
By inducing any animal to proceed, to vary its motion, or to cease to proceed.”

The section contemplates as defined in clause (1) of the section that both the person. One using the force and the other to whom force is directed must be present to make the offence complete.

This Section contemplates as defined in clause (1) of the section that both the persons, one using force and other to whom force is directed, must be present to make the offence complete. This Section defines, ‘force’ which is not an offence by itself. The term, ‘force’ denotes exertion of energy or strength producing a movement or change. A motion or change of motion or cessation of motion caused to an inanimate object such as property, without affecting human being is not the use of force to another’ within the meaning to this section.

In the case of Chandrika Sao v. State of Bihar A.I.R 1967, Assistant Superintendent of Commercial Taxes paid a surprise visit to the shop of the accused for inspecting the records, and books of accounts. He found two sets of account books being maintained in the shop. When he started turning the pages and looking into them, the accused suddenly snatched away both books from him. The accused was charged under Section 353 of IPC. It was contended on behalf of the accused that mere snatching of the book did not amount to ‘use of force’ as contemplated by Section 349. Rejecting the plea of the Supreme Court held that snatching away books from the Tax Superintendent amount to use to force as it caused jerk to his hand and its sensation could be felt by the hands and therefore, the accused was held guilty of the offence.

Criminal Force

Criminal Force is when a person intentionally uses force to any person, without that person’s consent to the committing of any offence, or intention by the use of such force to cause injury, fear or annoyance to the person to whom the force is said to use criminal force to that order.

The force is defined in the preceding section becomes a criminal force when:

It is used in the order to commit an offence and is used without the consent
When it is intentionally used to cause injury, fear, or annoyance to some other person.

Ingredients

Intentional use of force to any person.
Such force should have been used without the consent of the victim.
The force must have used to commit an offence or without the intention to cause injury, fear, or annoyance to the person to whom it is used.

Mr A is a house owner tortured one of his tenants to compel him to pay his rent and realised his dues. Here A will be liable for using criminal force under section 350 of IPC and in case some hurt is also caused he may also be liable for causing simple or grievous hurt as the case is.

Assault

Causing some hurt is not necessary for constituting assault. The mere threat may constitute assault. The essence. The essence of the offence lies in the effect which creates a threat in the mind of the victim. In the view of the explanation mere words do not constitute assault. But the use of words if accompanied by such gesture that may cause another to apprehend that criminal force is about to be used against him amounts to assault. Thus there must be some threatening physical act done by the accused by which he caused another to apprehend that criminal force is about to be used against him. The person threatening must be in a position to hold his threat into effect.

Ingredients–

Making of any gesture or preparation by a person in the presence of another.
Intention or knowledge of the likelihood that such gesture or preparation will cause the person making it is about to use criminal force to him.

In the case of N.Arumagam v.A.V.M. Vilachanny 1994, the accused pointed a loaded revolver at the complainant threatening to shoot him but before he could shoot, the complainant managed to escape. Held, it would not be an offence of attempt to commit murder, but it would be an offence of assault under section 351 of IPC.

Assault or Criminal Force to deter Public Servant

Section 353 of the Indian legal code covers the cases of an employee who is assaulted while performing his official duty imposed by the law. The duty which is alleged to be done, through during straightness but under the colour of the offence won’t be covered. An assault on an employee who isn’t discharging a requirement imposed by law when he’s assaulted falls under the preview of section 352. If the hurt is caused under the circumstances mentioned during this section 332 or section 333 will apply.

In the case of Durgacharan Nayak v. the State of Orissa, The Supreme Court brought out the excellence between Section 186 and 353 it had been held that the 2 sections are different from one another and offences under Sec 186 and Sec 353 are two distinct offences. The offences under Section 353 may be a cognizable offence whereas the offences under Section 186 may be a non-cognizable offence. Section 186 applies where the accused voluntarily obstructs an employee within the discharge of his public function is performing his duties.

Assault or Criminal Force to a woman with intent to outrage her modesty

Modesty in Section 354 IPC is an attribute related to female person beings as a category. it’s a virtue which attaches to a female due to her sex. The act of pulling a lady, removing her saree, including an invitation for sexual activity, is like would be an outrage to the modesty of a lady and knowledge that modesty is probably going to be outrage is sufficient to constitute the offence with none deliberate intention of getting such outrage alone for its object.

Ingredients:

1- That the assault be on a lady
2- That the accused must have used criminal force on her
3- That the criminal force must have been used on the women intending thereby to outrage her modesty.

It was held in Ram Kripal S/o Shyam Lal Charmakar v. The State of Madhya Pradesh AIR 2004 SC 1677 that the test to see the weather the modesty of a lady has been outrage is whether or not the action of the offender is like maybe perceived collectively which is capable of a shocking sense of decency of a lady.

Sexual Harassment and Punishment for Sexual Harassment

A man committing any of the subsequent acts:

Physical contact and advances involving unwelcome and specific sexual overtures.
A requirement or request for sexual favours.
Showing porno against the will of a lady.
Making sexually coloured remarks shall be guilty of the offence of harassment.
Any man that commits the offence laid get into clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be penalised with rigorous imprisonment for a term which maybe 3 years, or with fine, or with both of those.
Any man that commits the offence laid get into clause (iv) of sub-section (1) shall be penalised with imprisonment of either description for a term which may be one year or with fine, or with both. This comes under Section 354A of the Indian penal code

Assault or use of Criminal Force to women with intent to Disrobe

Any man who assaults or uses criminal force on another woman abets such act to disrobe or compel her to be naked, shall be punished with the sentence of the term of three years minimum with the sentence also extending to seven years and also shall be susceptible to a fine. This comes under Section 354B of the Indian constitution.

Voyeurism

Section 354-C deals with voyeurism which mean to bring happy or deriving pleasure by simply seeing a scene. The section provides that any man who watches or captures the image of a woman engaging in a private act commits an offence. It provides that any man who watches or captures an image od a woman engaging in a private act in such circumstances where a woman usually expects that she is not being observed either by the perpetrator or by any other person at the behest of the perpetrator. Even dissemination of such image is made an offence and as imprisonment of either description for a term which shall not be less than one year but which may extend to three years and shall also be liable to fine.

Stalking

Section 354-D provides two kinds of acts that are made punishable under this section.

It Provides that –

Any man who follows a woman and contracts or attempts to contact such a woman is treated as an offence. The above acts must be for the purpose to foster personal interaction repeatedly despite a clear indication of disinterest by such woman, or
Any man who monitors the use by a woman of the internet, e-mail or any other form of electronic communication is also made an offence.

The above two categories of acts are known as the offence of stalking. Therefore it is also provided in Section 354 D that the conduct shall not amount to the stalking of a man pursued if it is proved that:

It was pursued to prevent or to detect crime and the man accused of stalking has been entrusted with the responsibility of preventing and detecting of crime by the state, or
It was pursued under any law or to adjust to any condition or requirement imposed by a person under any law
In particular circumstances, such conduct was reasonable and justified.

Assault in Attempting Wrongful Confinement

Any person who assaults or uses criminal force on another person to wrongfully confine another person shall be imprisoned for one year or be fined Rs. 1000 or both. This comes under section 375 of the Indian Penal Code.

Assault with Intent to Dishonour a person

Whoever assaults or uses criminal force thereon person, hereby aiming to dishonour that person, otherwise on a grave and sudden provocation given by that person, shall be imprisoned for 2 years or be fined, or both. This comes under Section 355 under the Indian penal code.

Assault in Attempting Theft

Whoever assaults or uses criminal force to a different person to plan to attempt theft on someone that he’s wearing or he owns, shall be punished for a term which can be 2 years, or a fine, or both. This comes under Section 356 of the Indian penal code.

Assault in Attempting Wrongful Confinement

Any person who assaults or uses criminal force on another person to wrongfully confine another person shall be imprisoned for 1 year or be fined Rs. 1000 or both. This comes under Section 357 of the Indian penal code.

References

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The author, Nadeem Siddiqui, is a 2^nd year student of B.L.S. L.L.B. at Government Law College, Mumbai, Maharashtra. He is currently interning with Lexpeeps.in. The below article tries to analyse the adoption laws in India.

INTRODUCTION

Children are like a blank slate, they are bound to follow whatever they observe from their surroundings, which often leads to undesirable outcomes. Children also have needs, crucial for their survival which they cannot provide for themselves and need assistance from parents. It is seen that more often than not orphaned or abandoned children tend to fall prey to the wolves of the society, they become victims of exploitation and abuse. Therefore, it is necessary to take care of them and adoption does that, it provides them with a second chance.

Laws are generally based on customs prevalent in a country. India has a huge diversity which means that every community has its own customs. These customs were incorporated in the Indian constitution as personal laws i.e. laws which apply to a particular person or class of persons only. Adoption law is no exception, it is based on personal laws of the communities in India. Unlike guardianship or other systems designed to cater to the needs of the young temporarily, adoption is intended to effect a permanent change in the status and relation which requires societal recognition, which is brought about either through legal or religious sanctions. In other words, adoption is a legal procedure which permanently terminates the legal relationship between the child and his or her biological parents and initiates a new parent-child relationship. In simplest terms, adoption is the act by which a person takes the child of another into his family, and treats him as his own.

Origin of Adoption Laws

In India adoption has been practised for thousands of years. Ramayana and Mahabharat are the two great epics of Hinduism which bear references to adoption. According to Sastry Sarkar, adoption is the survival of archaic institution which owed its origin to the principle of slavery, whereby a person might like the lower animals be subject of dominion or proprietary right: might; in fact; be bought and sold, given and accepted or relinquished in the same way as a cow or a horse. Men like the animal could be bought and sold, given and accepted. Father had absolute right over his children. His powers were unlimited which extended even to the taking of their lives. Although, a father could sell his child as a salve, yet most of the slaves were captured in war or criminal condemned to slavery. A salve is generally not interested in the promotion of the welfare of the purchaser and his family as they are not related by blood relationship. As the importance of having a son grew, people started to resort to other means to fulfil their desire to have a natural-born son. This seems to have been the origin of adoption which was nothing but a fictitious creation of blood relationship. If we go through ancient literature, we find that Dattaka son i.e. to take voluntarily a child of other parents as one’s own child was known even in Vedic times. So the desire for sonship always remained. When it could not be fulfilled within the notions of Hindu Dharma there emerged the institution of adoption. In 1941 Sir B.N. Rao committee was constituted by the government on the desirability of codifying Hindu law. However, it was decided by the parliament to split the Hindu Code Bill and passed in a piece meal. One part of this bill was The Hindu Adoption and Maintenance Act 1956.

Adoption Laws in India

In India, there are well defined and codified adoption laws which provide legitimate rights to the parents as well as children. The aim of these laws is to protect the rights of an adopted child and transfer all the legal rights and obligations from the biological parents to the adoptive parents. There are four major pieces of legislation which govern the adoption laws in India. They are as follows:

The Hindu Adoption and Maintenance Act (HAMA) 1956
Guardian and Wards Act of 1890
The Juvenile Justice Act of 2000

The Hindu Adoption and Maintenance Act 1956

This act applies to any person who is Hindu, Buddhist, Jain or Sikh by religion. The people who can adopt according to this act are:

Married couples can adopt
Single adults can adopt
A married man can adopt but with the consent of his wife
Children under the age of 15 years can be adopted
Children adopted under this act get the same legal rights and obligations as a biological child
If a biological child already exists in the family, then a child of opposite sex has to be adopted
A single man adopting a girl child should be atleast 21 years older than the child
A single woman adopting a boy child should be atleast 21 years older than the child
Adoption under this act is irrevocable

Persons who may be adopted under this act are

he or she is a Hindu
he or she has not already been adopted
he or she has not been married, unless there is a custom or usage applicable to the parties which permit persons who are married being taken in adoption;
he or she has completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits the persons who have completed the age of fifteen years to be taken in adoption.

Other conditions for a valid adoption are:

if any adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son’s son or son’s son’s son (whether by legitimate blood relationship or by adoption) living at the time of adoption;
if the adoption is of a daughter, the adoptive father or mother by whom the adoption is must not have a Hindu daughter or son’s daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption;
the same child may not be adopted simultaneously by two or more persons;
the child to be adopted must actually be given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth or in the case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up to the family of its adoption

The Guardians and Wards Act, 1890

Before the Juvenile Justice Act, 2000 this was the only law which enabled adoption for non-Hindus. The personal laws of Muslims, Christians, Parsis and Jews do not recognise complete adoption. Non-Hindus did not have an enabling law to adopt a child legally, those who wanted to adopt a child could only take the child in ‘guardianship’ under the provisions of The Guardians and Wards Act, 1890. This, however, did not provide to the child the same status as a child born biologically to the family and unlike a child adopted under the HAMA, the child could not become their own, take their name, or inherit their property by right. The act conferred only a guardian-ward relationship which existed until the child completed the age of 21 years. Foreigners can also adopt under this act by assuming legal guardianship of the child, after giving an assurance to the court, that they would legally adopt the child as per the laws of their country, within two years after the arrival of the child in their country. Some important points of the act are as follows:

anyone under the age of 18 years can be a ward;
a will is required to transfer any property/goods to be bequeathed to the child;
the will can be legally contested by blood relatives;
the guardianship can be revoked by the court or by the guardian;
single people can adopt without any age difference restrictions;
both spouses can legally be guardians

THE JUVENILE JUSTICE (CARE AND PROTECTION) ACT 2000, amended in 2006 and 2015

The JJ act was introduced mainly with the aim to protect children who are in conflict with the law by providing them with rehabilitation and care. There was felt a need to provide adopted children with the same rights as the biological children and also to delink adoption from the religion of the adoptive parent(s). The JJ act tried to fill that void and a small section was introduced which was expanded by the amendment of 2006. Some salient features of this act are as follows:

Any Indian citizen can adopt;
A single or divorced person can also adopt;
A single male is not eligible to adopt a girl child;
In the case of a couple, the consent of both the spouses shall be required;
The adopted child has the same rights as that of a biological child;
The religion of the adoptive parent(s) is not relevant;
The adoption is irrevocable;
Emphasis is on welfare of the adopted child.

ADOPTION RULES OF DIFFERENT COMMUNITIES

1. Hindu Law

The Hindu law is the only personal law which is well codified and it is also the only law which treats the adoptive child the same way as a biological child. This directly stems from the spiritual aspect of Hinduism. Through the centuries, Brahminical influence spread and a peculiar religious belief was attached to the institution of sonship. Son was considered essential for the spiritual welfare of the souls of his immediate ancestors. Atri and Manu declare that a son should be adopted by a sonless man for the purposes of the pinda, the water, and other ceremonies and for the celebration of the name. By performing the ceremonies of the adoptive father’s ancestors, he celebrates their name and continues their lineage. A female child could not be adopted under the old Hindu law. But such restrictions have been changed during the course of time. Most of these laws, rules and regulations have been transformed and have been enumerated in the Hindu Adoption and Maintenance Act of 1956.

2. Muslim Law

Islamic views on adoption are distinct from practices and customs of adoption in other non-Muslim parts of the world. Raising a child who is not one’s biological child is allowed but unlike the Hindu law, the adopted child is named after the biological and not the adoptive father. Islam has specifically outlawed adoption and instead introduced a system called “Kafala”, which means “to feed”. It is more of a foster-parent relationship. The sponsor provides for the sponsored child’s maintenance and living expenses and the sponsored children do not inherit any money or possession from their sponsoring parents, compared to biological children who do inherit. Some of the rules are as follows:

An adopted child retains his/her biological name (Last name) and does not change his/her name to match that of the adoptive family
An adopted child inherits from his/her biological parents, and not automatically from the adoptive parents
When the child is grown, members of the adoptive family are not considered blood relatives and are therefore not “muhrim” to him/her. “Muhrim” refers to a specific relationship that regulates marriage and other aspects. Essentially members of the adoptive family would be permissible as possible marriage partners.
If a child is provided with property/goods from the biological family, adoptive parents serve as trustees for the property given to the child by his/her biological family.

In Islam, the extended family network is vast and very strong. It is rare for a child to be completely orphaned without a single biological family member to take care of him/her. Islam places a great emphasis on the ties of kinship – a completely abandoned child is very rare in Islamic culture. Islamic law places emphasis on locating a relative to care for the child and only when this proves impossible does it allow someone outside of the family – and especially outside the community or country – to adopt and remove the child from his/her familial, cultural and religious roots. This is especially important during times of war, famine, or economic crisis – times when families may be temporarily uprooted or divided.

Christian and Parsi Law

The personal laws of these communities also do not recognise adoption and here adoption can take place from an orphanage by obtaining permission from the court under the Guardians and wards act. A Christian has no adoption law. Adoption forms the subject matter of personal law as adoption is a legal affiliation of a child. And since Christians have no adoption laws, they have to approach the court under the guardians and wards act 1890. Christians can take a child under the said act only under foster care. Once the child reaches the age of majority, he can break away all the ties and connections with the family. Such a child does not have the legal right of inheritance from the adoptive/foster family.

The general law relating to guardians is contained in the Guardians and wards act, 1890. It clearly lays down that father’s right is primary and no other person can be appointed unless the father is found unfit. This act also provides that the court must take into consideration the welfare of the child while appointing a guardian under the act.

IMPORTANT CASE LAWS

Shabnam Hashmi v. Union of Indian and Others, (2014) 4 SCC 1

In this case, the supreme court held that “Persons of any faith can adopt a child under the juvenile justice (care and protection) Act. The act will prevail till uniform civil code is achieved, and the Muslim personal law will not stand in the way of such adoption”. This essentially means that religion is no bar when is comes to adoption under the JJ Act.

Sawan Ram v. Kalawanti, (1967) 3 SCR 687

In this case, the supreme court held that a child adopted by a widow will be deemed to be the adopted son of her deceased husband.

M. Gurudas v. Rasaranjan, (2006) 8 SCC 367

In this case, the supreme court held that adoption is made when actual giving and taking had taken place and not when the religious ceremony is performed like Datta Homam. For a valid adoption, it would be necessary to bring on records that there has been an actual giving and taking ceremony.

Laxmi Kant Pandey v. Union of India (1984) 2 SCC 244

In this case, the supreme court laid guidelines framed guidelines governing inter-country adoptions.

Philips Alfred Malvin v. Y.J. Gonsalvis, 2011SCC Online Ker 3932

In India, the Christian community believed that there was no adoption in Christianity. However, in this case, the Hight Court of Kerala referred to the canon laws and held that adoption is allowed in Christianity.

CONCLUSION

The above analysis points out that laws provide rights and obligations to the adopted child as well as the adoptive family. Though communities other than Hindu do not have proper reliable mechanisms, there has been some progress which makes one optimistic. There are no prohibitions on adoption in the religious laws of Christians, Parsis, and Muslims though they don’t have statutory laws to that effect. They thus continue to be governed by their customs.

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This article is written by SHARAT GOPAL, studying BALLB at Delhi Metropolitan Education College. In this article, he discusses the rash and negligent act and death caused by it, under section 304-A of IPC.

INTRODUCTION

Homicide means killing of a human being by another human being. It is unlawful but in situations, like, death caused by a person, who is below the age of 7 yrs, or a person of unsound mind, or death caused in private defence, it is not punishable. Homicide is of its three types – Excusable, justifiable and unlawful or criminal homicide.

The Indian Penal Code, 1860 Chapter XVI, deals with offences affecting life. They are, culpable homicide not amounting to murder, culpable homicide amounting to murder, death by rash or negligent act and Dowry death. To understand death caused by rash and negligent act, it is important to know what negligence is.

In law, negligence is defined as an act which is caused by a person due to carelessness, where he had a duty to take care. Negligent act is not followed with an intention but is in itself a type of Mens Rea. Basically there are 4 elements which need to be fulfilled for an act to be a negligent act.

Duty – For a causing a negligent act, there must always be some duty on the defendant towards the plaintiff. As a question of negligence cannot arise in a situation, where there was no duty fixed on the person in the first place.
Breach of duty- when a person had a duty fixed towards another and he breaches that duty, it is said to be being negligent or careless act. The court here focuses on the fact, did the defendant acted as a reasonable prudent man or not. This means if he didn’t have any knowledge for the outcome of his act then he can’t be held liable for being negligent but if he had an idea of the outcome of him not performing his duty and still he breaches that duty, then he will be held liable.
Injury caused- Now in order to prove negligence, it is important for the plaintiff to prove that defendant by the breach of his duty, has caused injury to the plaintiff or his property.
Damages– If there is an injury caused to the plaintiff then, the defendant is liable to compensate the plaintiff.

SECTION 304-A UNDER IPC

When the Indian Penal Code, 1860 was enacted, it had no provision providing punishment on cases of death by rash and negligent acts. And it also fell outside the purview of section 299 and 300, as they dealt with offences of high intensity. Due to this problem, the Indian penal code was amended in, 1870 and section 304A was added to deal and punish the offences of rash and negligent act separately. This section introduced a new variant, which punished homicide, but the one which is caused without intention or knowledge.

Section 304A states that – “whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years or with fine, or with both.”

Essentials of section 304A

Causes death to any person
Death caused by defendant
By doing rash or negligent act
Not amounting to culpable homicide

These are the 4 main essentials of section 304A.

The first essential is the death of a person must have been caused. It is not applicable if, the death of a person hasn’t caused death and there is just injury.
The second essential is that death has been caused by the act of the defendant, i.e., the act of the defendant has a proximate nexus to the death of the defendant.
The third essential is Rash or Negligent act, which means that the person who has performed this act should have no intention or knowledge about the result that will be caused due to the performance of such act and he was negligent or rash while doing that act.
The last and foremost important essential is Not Amounting to culpable homicide. This means that the act performed by the person should not be amounting to culpable homicide. The essentials of section 299 should not be present in the act performed by the person. And if all these essentials are fulfilled, then the person shall be liable under section 304A of IPC.

The term “not amounting to culpable homicide” has been emphasized and given a clear meaning in the case of Mahadev Prasad Kaushik v. State of UP, (AIR 2009 SC125), which stated that the term “Not amounting to homicide” means to the situation where there is neither intention nor knowledge that such act is likely to cause death or cause bodily injury that may cause death, and only then the case will be studied under section 304-A. This case also gave the interpretation of the term “negligence” as the omission of an act that a reasonable man would do in ordinary circumstances or perform any act which a prudent man in ordinary circumstances would not do.

Negligent act can also be understood from the case of Cadenza vs. Smith 565 U.S. 1 (2011), the case concerned with the death of a 7-week old boy. The facts of the case are that the mother of the child was a working woman, who stayed with her mother and one maid. Mother of the child had to go to work for some urgent work and maid took the half-day leave, because of which child was left with his grandmother alone. She (the grandmother) put the baby to sleep, on the sofa before herself sleeping in another room. Several hours later, when the mother came back she saw that child was not moving. She took the child and went to her mother crying to see what has happened to the boy. Later it was discovered by the doctor that child died due to SIDS (sudden infant death syndrome) as he must have turned while sleeping and nose face to the sofa, got suffocated and died in sleep. Court held that there was no culpable homicide but death due to the negligent act of the grandmother as she had a fiduciary relationship to take care of the child.

To understand the concept of ‘Rash Act”, the case of Cherubin Gregory vs. State of Bihar plays an important role. As in this case, a neighbour started using the washroom of the accused even after many objections made by the accused, the neighbour didn’t stop. One day after getting frustrated with this act of the neighbour, accused placed naked wire of electricity at the entrance of the washroom to scare the neighbour. The lady came and touched the wire and died immediately. Court held accused liable for his rash act.

Now the difference between negligent act and rash act can be understood from the case of Bhalachndra Wamam Pathe V. State of Maharashtra, where the accused was driving a car in a normal speed and accidentally hit two sisters on the pedestrian crossing of which one of them died. Now, in this case, the court held that the accused was guilty of being negligent as he was driving in normal allowed speed but was negligent to take care of pedestrian to whom he owed a duty to take care while driving. Now, if in the same case he was driving in high speed which was above the speed limit prescribed and hit the pedestrian or if he might have been driving drunk, then he would be held liable for being rash.

Applicability

This section will have no applicability in the matters where the act did was criminal in nature. If an act did was criminal in nature and has caused death to a person, then it will be dealt under section 299 and 300 of IPC. This section will also have no applicability in the matters where the consequences of the act could have been anticipated before the performance of the act. This section will also have no applicability in the cases when death has been caused voluntarily. This implies that the person cannot take benefit of section 304A for escaping section 299 and 300 liability, which have greater punishments and are crimes with more gravity. Hence, in the matter where there was the intention or a little knowledge of the consequences of the act, it won’t be covered under section 304A.

Idea of Negligence in Tort and Criminal LawDEA OF NE

In the case of Suresh Gupta v. NCT Delhi, the court differentiated between criminal negligence and tort negligence. It stated that criminal negligence is not any ordinary negligence but has to be understood as gross negligence. Mere failure to perform the technical operation or assignment work shall not lead to grossly negligent behaviour.

As the facts of the case of Suresh Gupta Vs. NCT Delhi, is that the compounder in the hospital was assigned work to give the appointment to a lady at 10’O clock, which he negligently heard as 1’O clock. Because of which the lady kept waiting in the reception for the correct appointment time and died due to her serious state. Here the court held that the act of compounder was negligent but not grossly negligent. This was not directly certain. When doctor do something negligently while performing the operation or any treatment where they need to take due care and fails to do that can be held liable for gross negligent.

Hence, negligence to be a criminal in nature needs to have grossness in its action. Minor negligent acts may constitute a tort but not a crime.

Court also held that for filing criminal liability on a doctor or any medical practitioner, the standard of negligence required has to be extremely high. Mere lack of necessary care, attention and skill cannot be considered as criminal negligence.

As in the case Jacob Mathew v. State of Punjab, the court held that for imposing criminal liability to doctors or any medical practitioner, degree of care expected from them must be high and also issued guidelines for imposing criminal liability on them. That is that there must have been an absence of proper skill and care which that medical practitioner claimed to possess and second that that skill and care by him was not exercised with proficiency.

CONCLUSION

Negligence has its various types, it can be contributory negligence, medical negligence or legal negligence. It needs to be dealt with based on its gravity which differs from facts of one case to the other. Negligence had always been easily dealt under the law of tort but based on its gravity or grossness, amendment act of IPC, 1870 added section 304A, which has its own perks but had also been criticized by many professionals by saying that this section provides the license to kill to the people and it has lesser punishment.

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This is article has been written by Pranit Bhagat, pursuing BA-LLB at ILS Law College, Pune. In this article, we intended to provide rule of law practitioners with a review of the historical developments that have shaped the concept of the rule of law and summarize competing contemporary theories. It should also be useful for democracy and governance officers working with development organizations.

Origin and Meaning

The Rule of Law is a concept that describes the supreme authority of the law over governmental action and individual behaviour. It corresponds to a situation where both the government and individuals are bound by the law and comply with it. It is the antithesis of tyrannical or arbitrary rule. The rule of law is the product of historical developments over centuries and is linked to the rise of the liberal democratic form of government in the West. Under this concept of the rule of law, the state must act following the laws it has promulgated and these laws must meet a certain number of minimum characteristics. This concept has a wider, more substantive, meaning that incorporates ideas of justice and fairness. Although it is generally accepted that the extent to which a government adheres to the rule of law is indicative of the degree of legitimacy of its actions, the divergent use of the term illustrates that the concept is far from having achieved a universally accepted meaning. Indeed, while some declare the concept to have attained the status of a new universally-accepted political ideal following the end of the Cold War, others have on the contrary gone as far as to assert that the term has been misused and abused to such an extent that it has become a meaningless phrase, devoid of any true meaning.

Supremacy of Law

The supremacy of law has always been a basic understanding of the rule of law that states that the law rules over all the people including those administering the law. The lawmakers have to give reasons that are justified under the law while exercising their powers to make and administer the law.

Equality before the Law

The principles of supremacy of law have the duty of cheques and balances over the government on making and administering the law. Also, the principle of equality before the law has to make sure that the law is administered and enforced in the right manner. It is not enough to have a fair law but the law should be applied in the right manner as well. It should not discriminate between people through religion, sex, race, etc. This idea of the rule of law has been codified under the Constitution of India under Article-14 and the Universal Declaration of Human Rights under Article-7.

Pre-dominance of the legal spirit

In including this as a requirement for the rule of law, Dicey has believed that it was not sufficient to simply include the above two principles in the constitution of a country. There must be an enforcing authority called the courts or judiciary. The courts should be the enforcers of the rule of law and must be impartial and free from all other external influences. Thus the freedom of the judicial system is an important pillar to this rule of law. Rule of Law has is said to be a system that has safeguards against official arbitrariness prevents anarchy, and also allows people to plan the legal consequences of their actions in modern parlance.

Rule of Law in Modern times

The rule of law is a phrase that we hear with increasing regularity from diverse quarters. We hear it in the pronouncements of world leaders, such as President Barack Obama recalling that adherence to “the rule of law serves as the foundation for a safe, free, and just society”. We hear it in the statements of diplomats commenting on key international events, such as the United Nations Secretary-General Ban Ki-Moon emphasizing the central role which the rule of law should play in Libya following the overthrow of Muammar Gaddafi. We hear it from dissidents who denounce their repressive government’s abuses, such as pro-democracy activist Aung San Suu Kyi commenting on the importance of upholding the rule of law and calling on the authorities in Myanmar to release political prisoners. We may even hear it from unlikely quarters, such as Chinese President Hu Jintao who declared following his appointment that The people’s Republic of China “must build a system based on the rule of law and should not pin our hopes on any particular leader”. Perhaps most surprisingly, we even hear it from the likes of Robert Mugabe, Zimbabwe’s autocratic President, who has asserted that “only a government that subjects itself to the rule of law has any moral right to demand of its citizens’ obedience to the rule of law”. It is clear from these examples that the concept can be the subject of disparate even contradictory usage. One of the reasons is that the rule of law today remains the subject of competing theories. Moreover, these do not always coincide with popular perceptions of what the rule of law consists in.

The Rule of Law and International Development

Following the end of the Cold War, many countries abandoned their former communist forms of government and embraced liberal democracy and capitalism. In the transitional period, many of those countries sought to reform their legal systems and international development agencies began funding projects to build “the rule of law” in those countries. The 1990s also saw the imposition of the rule of law benchmarks by development banks as a condition to the provision of financial assistance. The establishment of the rule of law is considered by donors as necessary to ensure sustainable economic development, encourage investment and trade, and ensure that countries emerging from conflict can transition to democracy. As a result, the rule of law has become a significant component of international development with billions of dollars spent in the last twenty years or so on reforming legal systems. Donor agencies, including the European Commission, the United States Agency for International Development, Japan International Cooperation Agency, as well as the World Bank, all fund rule of law projects in diverse locations around the globe, whether it be China, Ecuador, Liberia, or Papua New Guinea. Technical assistance is often provided to donor recipients by specialized non-government organizations including Avocats sans Frontières, the American Bar Association Rule of Law Initiative, and the International Legal Assistance Consortium, but private companies are also used on larger projects. Such initiatives are not without criticism. In line with other international development activities, many commentators denounce the lack of empirical evidence as to the effects and impact of such programs, a lack of proper coordination between donors, as well as the unsustainable nature of many programs. More damning is the charge that rule of law assistance programs have led to very limited long-term improvements on the ground, that programs are too narrow in focus because they only address judicial or legal institutions without at the same time addressing the police or prisons, that they lack clearly articulated objectives that are directly linked to improving the various constitutive elements of the rule of law and that, in some instances, such efforts have been counterproductive. Aspects of these criticisms can be attributed to the absence of a universally accepted definition of what amounts to the rule of law. In any event, most observers agree that much more needs to be done to develop a more consistent approach to rule of law assistance and take meaningful steps to measure the impact of the rule of law programs.

Criticisms of the Rule of Law

It is undeniable that the rule of law forms an integral part of the liberal form of democratic government worldwide. It goes without saying that “freedom under the rule of law” is an oft-repeated mantra of Western liberal democracies. In this sense, adherence for the rule of law, therefore, appears to carry with it a number of connotations of a social and political nature. Seen in this light, the rule of law is not necessarily a politically neutral concept. For instance, some argue that a model of government based on the welfare state is incompatible with the rule of law. In a later edition of Introduction to Study of the Laws of the Constitution, Dicey had deplored what he saw as the decline in the rule of law owing in part to the emergence of the welfare state and the adoption of legislation that gave regulatory and adjudicatory powers to administrative entities without recourse to judicial review by the courts. This concern has been shared by liberal commentators over time. Like Dicey, Hayek argued that the welfare state was incompatible with the rule of law. Nonetheless, it could be argued that these concerns have been tempered by the rise of administrative law as a distinct area of law in common law countries, where the ordinary courts have developed an elaborate body of case law that has placed limits on administrative discretion, some of which has been codified into legislation. Dicey criticized as being incompatible with the rule of law the existence in France of separate administrative laws that deal with relations between government and the governed and which did not fall within the jurisdiction of the ordinary courts. However, it is now recognized that the establishment of administrative courts that are distinct from the civil and criminal courts in countries following the civil code tradition has ensured to a large extent that discretionary actions taken by the government do not go unchecked. Moreover, it is undeniable that certain countries that follow the civil law tradition – for example Belgium and Sweden – which pride themselves on having a political system that embraces social welfare, are also widely accepted as adhering to the rule of law.

Conclusion and Future Prospects

In its present-day meaning, the rule of law is often used as a shorthand for the existence of good governance in a particular country. In the West and other countries that have adopted a liberal democratic model of governance, the rule of law is seen as essential for economic and

social development and as a necessary prerequisite for the existence of a democratic model of government. In his work, On the Rule of Law, History, Politics, Theory (2004), Brian Tamanaha has asserted that the rule of law “stands in the peculiar state of being the pre-eminent legitimating political ideal in the world today, without particular agreement upon precisely what it means”. He draws the analogy that the rule of law is like the concept of the good: “everyone is for it”, but no-one knows precisely knows what it is. While the concept of the rule of law is the subject of competing theories, the existence of a divergence of views as to its precise meaning does not invalidate the rule of law as a concept in law. Most theorists tend to agree that, at the very minimum it does include a requirement that the government observes a country’s laws and the existence of institutions and mechanisms which allow individuals to enforce the laws against officials. In the time it is hoped that the rule of law will gain not just universal acceptance as to its desirability, but also further agreement as to its precise meaning.

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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 the types of writs in the Indian Constitution.

Introduction

Fundamental Rights are ensured to the citizens under Part-III of the Indian Constitution which includes numerous rights such as the right to life, right to privacy, right to equality, etc. But merely providing fundamental rights is not sufficient and hence these rights are needed to be protected and enforced as well. So, to protect these Fundamental Rights the Indian Constitution provides the right to approach the Supreme Court under Article 32 and High Court under Article 226, to any person whose fundamental rights have been infringed. The two articles give the rights to the highest court to issue writs in order to safeguard the Fundamental Rights of the person and enforce them in the manner in which they should be enforced.

A writ, fundamentally, is a formal written order issued by either Supreme Court or High Court and it can be in the form of orders, warrant, directions, etc. One can file a writ petition in the competent court if there is an infringement of their Fundamental Rights and can request to issue a specific writ.

Types of Writs

The Indian Constitution provides five different types of writs which are issued in different circumstances and have different implications. They are as follows:

Habeas Corpus

Habeas Corpus is a Latin term which literally means “You should have the body”. The writ is issued to give remedy to a person who has been detained, whether in prison or in private custody, before a court and to release him if such detention is found illegal. In other words, the court gives an order to the person by whom another person has been detained and tells the court the reason for the detention and if the reason seems illegal then the court will order to release the person. Thus, this writ gives a quick remedy to the person who has been wrongfully detained.

When will it lie – The writ will lie if the detention was exercised with bad faith or intentions and is made for unapparent purposes by the authority holding the detention. But what if the detention is reasonable? Then the High Court does not grant the writ of habeas corpus. The detention becomes unlawful if the following conditions are satisfied:

The detention is not according to the law and the procedure established by the law is not followed strictly or the invalid law is followed.
The court will check the detention with the help of these articles if the detention violates then it is unlawful or illegal detention.

The detention becomes unlawful if the person who is arrested is not produced before the judge within the 24 hours of the detention and there would be an order of his release by issuing the writ of habeas corpus. This would help the person retain his right of Protection of Life and Personal Liberty under Article 21 and right of Protection against arrest and detention under Article 22 of the Indian Constitution.

In the case of AK Gopalan v. State of Madras ^[1], the petitioner was detained unlawfully and his rights to life and liberty were violated. And he filed the writ petition of habeas corpus and wanted the remedy. Although the Court found the detention lawful.

Who can apply for the writ – The general rule says that an application can be made or writ petition can be filed by the person who is unlawfully detained. But an application can also be made by any other person on behalf of the petitioner, maybe a friend or relative.

In the case of Sunil Batra v. Delhi Administration ^[2], a letter was written by the petitioner to one of the judges of the Supreme Court, and that was treated as a writ petition. The court exercise this writ for the neglect of State penal facilities. The writ was also issued when a ban was pressed on the law students to conduct interviews with prison mates to provide them legal relief.

Mandamus

The word “mandamus” is a Latin word whose literal meaning is “We command”. This writ is an order given by the courts commanding a person or a public authority to do something in the nature of public duty or a statutory duty in some cases. Basically, this petition reminds the person or authority, who have a duty that needs to be fulfilled for the public, to do their job properly. For instance, A has a legal right which cast a legal obligation on B. A can seek a writ of mandamus and can remind B to perform his legal duty if there was a breach of obligation from B’s side.

When will it lie – The writ would be identified as mandamus if there is a failure in performing any obligatory duty. But in such cases, the party should show that the demand to perform the specific duty was made but no action was taken on or the demand was refused.

The Supreme Court might issue a mandamus to there if a violation of the fundamental right of a person by some governmental order or act is alleged. The High courts might issue this writ to direct an officer to exercise his constitutional and legal powers or to compel any person to discharge duties he holds which were given by the constitution or the statue or to compel a judicial authority to exercise its jurisdiction and to order the government not to enforce an unconstitutional law.

In Mrs Santosh Singh v. Union of India ^[3], the Supreme Court held that the writ of mandamus cannot be issued for the introduction of moral science as a compulsory subject in the school curriculum. There is no dispute about the value-based education. The jurisdiction of the Supreme Court is not a panacea for all ills but a remedy for the violation of Fundamental Rights.

In Unni Krishnan vs Union of India ^[4], held that a private medical/ engineering college comes within the writ jurisdiction of the court irrespective of the question of aid and affiliation.

Certiorari

Certiorari is a Latin word meaning ‘to be certified’. The writ of certiorari is often issued by the Supreme Court or any High Court for quashing the order already passed by a lower court, tribunal or quasi-judicial authority.

When will it lie – The writ can lie only on judicial bodies. This means that the issuing of the writ of certiorari can only be availed of only to remove or to adjudicate upon the validity of judicial acts.

In the case Syed Yakoob v. Radhakrishnan ^[5], it was held that the jurisdiction of the high court to issue a writ of certiorari is a supervisory jurisdiction and the court exercise it is not entitled to act as an appellate court. An error of law that is clear on the face of the record is corrected by a writ, but not a mistake of fact. However, if a finding of fact is based on ‘no evidence’ that would be regarded as an error of law which can be corrected by certiorari.

As stated in the law lied down in the case above Certiorari can be issued in the following grounds:

when the body concerned to proceed to act without or excess of jurisdiction, or
fails to exercise its jurisdiction properly, or
there is an error of law apparent on the face of the record in the validity of the decision of the body, or
the findings of fact reached by the inferior tribunal are based on no evidence, or
it proceeds to act in violation of the principles of natural justice, or
it proceeds to act under a law which itself invalid, ultra vires or unconstitutional, or
it proceeds to act in contravention of fundamental rights

Prohibition

The Writ of prohibition means to forbid or to prevent and is popularly referred to as ‘Stay Order’. This writ is issued to prevent an inferior court or tribunal from exceeding its jurisdiction or acting contrary to the rule of natural justice. The writ of prohibition is issued by the High Court of any state or the Supreme Court to any lower court, or quasi-judicial body prohibiting the latter from continuing the proceedings in a particular case, where it has no jurisdiction to undertake.

Thus, the writ is issued in both cases where there is an excess of jurisdiction and where there is an absence of jurisdiction.^[6]

The fundamental distinction between Certiorari & Prohibition is that while the writ of prohibition is available during the pendency of proceedings, the writ of certiorari can be resorted to only after the order or decision has been announced. The difference between the writs was explained by the Supreme Court within the following words:

“When an inferior court takes up for hearing a matter over which it has no jurisdiction, the person against whom the proceedings are taken can move the Supreme Court for a writ of prohibition and on that, an order will issue forbidding the inferior court from continuing the proceedings. On the other hand, if the court hears the cause or matter and gives a decision, the party aggrieved would have to move the Supreme Court for a writ of certiorari on that an order will be made quashing the decision on the ground of jurisdiction.”

Quo-Warranto

The word Quo-Warranto literally means “by what warrants” or “what is your authority” By this writ, a holder of an office is called upon to show to the court under what authority he is holding the office. The main objective of the writ is to prevent a person to hold an office that he is not legally entitled to hold. If the person is found out to still hold on the office, then Court may direct him not to carry out any activities in the office or may announce the office to be vacant. Thus, the Court may issue a writ of quo-warranto if a person holds an office beyond his retirement age.

Conditions for issue of Quo-Warranto: –

The office should be public and it must be created by a statute or by the constitution itself.
The office must be a substantive one i.e. a major one and not merely for the function or employment of a servant at the will and during the pleasure of another.
There must have been a breach of the constitution or a statute or statutory instrument, in appointing such person to that office.

A writ of Quo-Warranto can be claimed by a person if he satisfies the Court that the office in question is a public office and it is held by a person without legal authority.

In the case of Jamalpur Arya Samaj vs. Dr D. Ram ^[7], Patna High Court held that writ of Quo Warranto cannot be issued against private association only public offices will be lying under this writ scope.

Who can file a writ petition?

A writ petition can be filed by any person whose Fundamental Rights have been violated by the State. Under a Public Interest Litigation, any person may file a writ petition in the interest of the general public even if his own Fundamental Right has not been infringed.

Where can a writ petition be filed?

Under Article 32, a writ petition is filed within the Supreme Court. The Supreme Court can issue a writ as long as the petitioner can prove that his Fundamental Right has been infringed. This approach to the Supreme Court if there is a violation of writ in itself is a right for the citizens under the Indian Constitution.

Under Article 226, a writ petition is filed before the High Court of any state within whose jurisdiction is the cause of action arises, either wholly or partially. The person against whom the writ petition is filed doesn’t need to be in the territory or not. It is immaterial for the court.

Where a fundamental right has been infringed, either the Supreme Court or the High Court can be reached. It is not necessary to approach the High Court first and only thereafter approach the Supreme Court. But if a writ petition is filed directly in the Supreme Court then the petitioner has to give a reason for why the High Court was not approached first.

Conclusion

Thus, it is clear that our Indian Constitution along with providing the Fundamental Rights also safeguards it with the help of different types of writs under Article 32 and 226. The enforceability of these Fundamental Rights is taken care of too. These writs give the citizens the liberty to enjoy and look after their fundamental rights which is a fundamental duty of all the citizens.

Citations

^[1]AIR 1950 SC 27
^[2] AIR 1980 SC 1579
^[3] AIR 2016 SC 3456
^[4]1993 AIR 217, 1993 SCR (1) 594, 1993 SCC (1) 645, JT 1993 (1) 474, 1993 SCALE (1)290
^[5] AIR 1964 SC 477
^[6] S Govinda Menon v. Union of India, AIR 1967 SC 1274
^[7]1954