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

Introduction

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

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

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

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

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

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

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

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

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

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

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

Social Media Evidence: Boon or Bane?

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

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

INTRODUCTION TO TEST IDENTIFICATION PARADE

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

PROVISIONS AND ADMISSIBILITY

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

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

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

PROCEDURE AND PRECAUTIONS

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

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

WHETHER TEST IDENTIFICATION PARADE IS NECESSARY OR NOT:

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

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

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

CRITICAL ANALYSIS

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

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

CASE REFERENCE

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

IDENTIFICATION BY PHOTOGRAPH?

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

IDENTIFICATION BY VOICE?

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

CONCLUSION

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

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

INTRODUCTION

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

USE OF THE DISASTER MANAGEMENT ACT (DMA), 2005

The DMA 2005 defines a disaster as:

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

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

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

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

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

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

EPIDEMIC DISEASES ACT, 1897

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

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

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

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

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

CONSTITUTIONAL PERSPECTIVE

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

PROBLEMS WITH LAW REVOLVING AROUND EPIDEMICS AND DISEASES

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

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

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

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

INTRODUCTION

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

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

STRICT LIABILITY

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

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

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

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

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

ABSOLUTE LIABILITY

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

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

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

THE DIFFERENCE

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

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

REFERENCES

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

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

INTRODUCTION

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

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

Meaning of Judicial Separation

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

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

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

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

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

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

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

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

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

Divorce

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

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

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

Grounds for Divorce

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

Difference between Divorce and Judicial separation

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

Conclusion

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

^[1] AIR 1984 P H 332

^[2] AIR 1992 All 260

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This article is written by Anurag Maharaj, student of law at Lloyd Law School, Greater Noida. He has tried to define the sources and framing of the Indian Constitution in this article.

INTRODUCTION

Constitution is the system of basic principles which governs a country, state, company, or the like. It is the backbone of our country’s democracy. Indian Constitution is the longest written constitution in the world containing 395 Articles, 22 Parts and 12 Schedules. India’s constitution was drawn up by a Representative Assembly. The Assembly, under the chairmanship of Dr. B.R.Ambedkar, formed a drafting committee to create a constitution for India. The first meeting of the Assembly was on 9 December 1946. On 26 November 1949, the Indian Constitution was adopted and came into force on 26 January 1950.

After ransacking all the world’s major constitutions, the Indian Constitution was formed. The sources of the Indian Constitution are:-

1. United States of America

● Impeachment of president:- Article 61 of the Constitution calls for the President of India to be impeached. The President may be disqualified from office for breach of the Constitution by impeachment. Impeachment proceedings may be levied at any Parliament house.

● Removal of judges:- Article 124(4) of the Constitution allows the President to remove a judge for proven misconduct or incapacity if the parliament approves a majority of the total membership of each house for impeachment and not less than two-thirds of the members of each house present.

● Fundamental Rights: Articles 12 to 32 of the Constitution of India include all the fundamental rights:- Basic rights are the fundamental human rights given to the country’s people in order to ensure them of an equal place in society.

● Judicial independence:- The idea of judicial independence is that the judiciary should be separate from other government branches.

● Preamble:– The Preamble is an introduction to the Constitution. It guarantees justice, freedom, equality for all Indian citizens, and fosters fraternity among the people.

● Judicial Review: The Judicial Review provision gives the judiciary an upper hand in interpreting the Constitution. Therefore, the judiciary can annul any order by the legislature or executive if that order conflicts with the country’s constitution

● Functions of president and Vice president:- The President of India, is the head of state of and the commander-in-chief of the Indian Armed Forces.

● Article 63 of the Indian Constitution states that “There shall be a Vice President of India.” The Vice President shall serve as President in the absence of a President by reason of death, resignation, impeachment or other circumstances. India’s vice president is now ex officio secretary of Rajya Sabha.

2. The United Kingdom

● Single citizenship:- India’s constitution grants the country’s residents single citizenship. The residents of the country are all citizens regardless of the states or territories in which they live.

● Legislative procedure:– Legislative proposals shall be brought in the form of a bill before either Parliament House of India. A bill is the draft legislative legislation that, when passed by both parliamentary houses and approved by the President, becomes a parliamentary act.

● Rule of Law: This essentially states that a State is governed by the laws of that country, not by the representatives or the citizens and it states that everybody is equal before the law; including the ones who make it. Article 14 of the Constitution of India codifies the rule of law

● Cabinet system:- A group of persons appointed by a head of state or a prime minister to head the government’s executive departments and serve as official advisers.

● Parliamentary form of government:- The President is the head of state, and the head of government is the Prime Minister. In such a form of government, a cabinet of ministers, headed by the Prime Minister, governs the country. The Parliament consists of two houses – Lok Sabha and Rajya Sabha.

3. IRAN

● Directive Principle of State Policy:- The Directive Principle of State Policy is stated in Part IV of the Indian Constitution, and it explicitly states that it is the State’s responsibility to follow certain principles in the law-making process. There are three major types of these concepts – Democratic Guidelines, Gandhian Guidelines and Liberal Intellectual Guidelines. Ireland is also borrowing the process for appointing members to the Rajya Sabha

● The method of the election of the head of the state i.e the President

4. Australia

● Article 108:- The joint sitting of both the houses in some cases.

● Concurrent list:- It includes the power to be considered by both the union and state government.

● Freedom of trade and commerce:– Trade and commerce freedom within the nation and between States. Sections 301 to 307 of the Indian Constitution set down the same provisions

5. France:- The Indian preamble borrowed from the French Constitution its principles of liberty, equality and fraternity. In the tradition of France’s Constitution, the Indian state came to be known as the ‘Republic of India.’

6. Canada

● Federal system with a strong central government.

● Power-sharing between the central government and state governments

● The advisory jurisdiction of the Supreme Court

● Appointment of State governors by the Centre

7. Soviet Union (USSR)

● A Constitutionally appointed Planning Commission to supervise the economic growth.

● The Fundamental Duty, given in Article 51 A(g):- Mentions the duty of the citizen to protect the environment.

8. South Africa :- Gave us the provisions of the amendment process and the election of Members of Rajya Sabha

9. Germany:- Gave us an immediate clause for the suspension of the fundamental rights.

10. Russia:- Idea of Social, Economic, and Political Justice in Preamble.

11.Government of India Act 1935

● Federal Legislature: The act stated that there should be two houses of the legislature, i.e. the Council of States and a Federal Assembly

● Provincial Autonomy:- Federal Legislature: The act stated that there should be two houses of the legislature, i.e. the Council of States and a Federal Assembly

Framing of the Constitution

India’s Constitution was adopted by a Constituent Assembly formed under the 1946 Cabinet Mission Plan. The Constituent Assembly formed 13 commissions to frame the Constitution. A draft Constitution was drafted by a seven-member drafting committee under the chairmanship of Dr B R Ambedkar on the basis of the reports from these committees. In January 1948, the drafting Constitution was released and citizens were given eight months. After the citizens, the press, the provincial assemblies and the Constituent Assembly had debated the draft in the light of the suggestions received, the same was finally adopted on November 26, 1949, and signed by the President of the Assembly. Thus it took 2 years, 11 months and 18 days for the Constituent Assembly to complete the task. And as I have discussed above the Indian Constitution is borrowed Constitution. The legislative system, common citizenship, rule of law, Directive state policy etc. all are borrowed features of the Indian Constitution. The Constitution of India incorporated the best features of a number of existing constitutions.

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This article is written by Sharat Gopal, pursuing BA.LL.B from GGSIPU. This article discusses about “Burden Of Proof” and its application in the Indian Judicial system with case laws.

Let us understand this with an illustration as B is booked for theft for stealing A’s gold chain. B denies this accusation and claims that he was attending his friend’s wedding, but for proving this in court, B must provide sufficient evidence to the court which proves that he was at the wedding. If B won’t provide sufficient evidence in court, B will be convicted for theft. This legal burden placed on B’s shoulder is known as “burden of proof”. Burden of proof is more of the time on the person who brings the claim in the dispute. “ necessitas probandi incumbit ei qui agit” is a legal maximum which states that the necessity of proof always lies with the person who lays charges.

EVIDENCE

Evidences are the major factor that decides the faith of a case. Cases are won and lost on the bases of evidences provided. Law of Evidence is an important piece in the court proceedings, as on the basis of evidences, cases are decided. Judgments of cases are totally depended on the evidence provided in court.

The term “Evidence” is defined in section 3 of the Indian Evidence Act 1872. It states that “Evidence” means and includes:

All the statements that are permitted in court or statements which are required to be made by the witnesses, in relation to the matter of fact which is under enquiry. These statements are called oral evidences.
All documents including electronic records produced for the inspection of the court. These are called documentary evidences.

This is the definition of evidence explained under section 3 of the Act. It states that there are 2 types of evidence, oral and documentary evidences. These 2 types of evidence must be produced before the court for proving or disproving their arguments. The court analysis these evidences for giving a fair and just judgement.

BURDEN OF PROOF

“Burden of proof”, in simple terms means the duty places on one to prove or disprove a fact which is in question. As it is explained in the above example, where B had the burden to prove that he was at his friend’s wedding when the theft happened. In criminal cases, it is normally the prosecution who has the burden of proof, but in some cases it is shifted to the defendant as in the explained example, to prove his innocence. In civil cases, the burden is usually on the plaintiff to prove the claim, but in some, in some cases, it shifts to the defendant.

Burden of proof works on 2 principles, “Onus Probandi” and “Factum Probans”. “Onus Probandi”, in simple terms means the obligation of a party to provide sufficient proof for their position in a dispute. “Factum Probans”, means a fact or a statement of facts which are offered in as evidence as proof of another fact.

“Onus” is the liability and burden which can shift between parties in different circumstances.

Sections in the Indian Evidence Act covering the concept of Burden of proof-

Section 101- it states that any person who wants the judgement to be given in his favour for any legal right or liability, on basis of the facts he provides, he must prove that those facts exist. When the person is bound to prove the facts that he provided in court, it is known as the burden of proof.

In the case of Jarnail Singh Vs State of Punjab [AIR 1996 SC 755], it was held that in all criminal cases, the prosecution has the responsibility to prove the crime committed by the accused beyond all reasonable doubts. It can’t depend on the evidence brought by the accused for defence. The prosecution cannot rely on the evidence brought by the accused, and it must have its own evidences.

Section 102- This section talks about the person on whom the burden of proof will lay.

It states that the burden of proof will lay on the person who will lose if no proof or evidence is provided in the dispute. Eg, A and B were in contract with each other. B goes to court demanding that, A had obtained B’s consent by fraud. Here B will have the burden to prove the fact that, A fraudulently took B’s consent. If B will not prove this fact, the B will lose the case.

In the case of Dinabandhu Mondal v. Laxmi Rani Mondal [AIR 2019 Cal 232], the high court held that the plaintiff failed to provide any evidence to support their charge and the burden of proof was on the side which will fail in evidence is not provided. The court also said that the respondents had imposed the allegations of fraud against the appellants, hence the burden of proof was on them to prove them negative.

Section 103- this section on Burden as to a fact. It states that the burden of proof of any particular fact lies on the person who wishes the court to believe in its existence until it is provided by any law that proof of fact shall only lie on any particular person.

In the case of Kovvuri Venkata Rama Reddy Vs Mandru Ganga Raju [Criminal Revision Case No.704 of 2018], the Andhra High Court held that the plea of alibi is concerned; the burden heavily rests on the accused to prove it.

Section 104- This section talks about the burden of proving a fact so that the evidence provided can be admissible in court. Eg, A wishes to prove the dying declaration of his father. In order to prove this, first A must prove the death of his father.

Section 105-this section talks about the burden of proof in cases where accused comes with exceptions. According to this section, a person is accused of any offence and there are general exceptions in the case, then it is the burden of the accused to prove those exceptions. The court shall presume that there are no such exceptions present until the accused proves that there are exceptions. Eg, A did a murder, but he was unsound minded at the time for the crime. The burden of proof here lies on A.

Section 106-this section talks about the burden of proving facts which are especially within knowledge. If any fact is especially within the knowledge of the person, the burden of proving that fact is on that person.

In the case of Eshwaraiah And Anr. vs State Of Karnataka (1994), a man and a women were found hiding under the bedroom of a person who died with grievous injuries. Here the burden of proof was on the woman and man that why were hiding there.

There are other sections too which talk about the burden of proof in specific cases like that in section 107 which talks about the burden of proving the death of a person who was alive within 30 years, section 108 talks about the burden of proving person alive who has not been heard for 7 years, section 114 A which states that if women assert that it was non-consensual sex, then the court will honour the claims of the women, etc.

CONCLUSION

The burden of proof simply states that whoever has to make a claim before the court must have sufficient proof to prove it for having the judgement in their favour. For making claims, a person must have sufficient evidence to prove the facts in his favour. And this duty is passed to both the parties as the circumstances are. It strengths the judicial system of our country as it lay down general rules that must be followed by all while bringing a matter to court. This helps to provide justice and equality while giving judgements on the cases.

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Mansi Tyagi, is a student of Symbiosis Law School, Pune. In this article, she has discussed the rules and principles concerning the Delegated Legislation in India. Also, she has tried explaining the major issues with the same that needs to be tackled. And in conclusion, she has tried putting forth the contemporary situation regarding a valid delegated legislation.

What is Delegated Legislation?

Legislation, the law-making process, can be either supreme or subordinate. While supreme legislation is the one that flows directly through the sovereign; subordinate legislation includes every other organ as its maker other than the sovereign power. On one hand, as the name suggests, supreme legislation cannot be annulled or controlled by any other lawmaking authority, which is not the case with the subordinate legislation.

To get a simpler idea, the parliament in India is a supreme legislative body, while any other authority making law will be considered a subordinate source of legislation. Delegated legislation is one such important and emerging example of subordinate legislation.

What exactly means by the term ‘Delegated Legislation’?

Black’s Law Dictionary defines ‘Delegation’ as “the act of entrusting another with authority or empowering another to act as an agent or representative”.

Thus, Delegated Legislation comes down to how the Legislative authority entrust other departments of the government itself to make law instead. Also known as Executive Legislation, Delegated legislation refers to where, unlike its usual function of executing’ the law, the executive branch makes laws. A law made by a delegated authority is the same as an act passed by the parliament. Since time immemorial, there have been several reasons for the evolution of such a kind of legislation.

The concept of a Welfare state has multiplied the functions of a government, including those of lawmaking. The surging need for law has made the process way too lengthy for the lawmakers to do alone. And that’s where Delegated legislation came into existence. Not just it shared the burden of law-making subject matters, but also gave the legislative to elaborate and discuss on more delicate and critical issues.

Is it prospective or Retrospective?

One of the earlier issues regarding Delegated Legislation that was posed before the judicial authorities was whether it stood a prospective or a retrospective effect. However, instead of handling situations factually, the Hon’ble Supreme Court of India went ahead to lay down principles regarding the effects of such delegated legislation in the case of Federation of Indian Mineral Industries and Ors. v. Union of India and Ors. It laid down three basic principles concerning the subject:

(i) In the case of Hukum Chand v. Union of India, the first principle was laid down which stated that only if there was any express or implied authority from the parent statute, the delegating authority, i.e. Central Government or the State Government can make such delegated legislation into retrospective nature.
(ii) The 2nd principle was laid down in case of Panchi Devi v. State of Rajasthan where it was stated that originally a delegated legislation is always prospective in nature and thus no right or liability emerging out of it can have a retrospective effect.
(iii) Finally, in case of State of Rajasthan v. Basant Agrotech Ltd, It was held as the third principle that as far as the delegated law was regarded as a fiscal statute, a tax or fee could not be levied unto people in absence of an express provision. Only on the pretext that a delegated authority made the law, the imposition of fiscal duty cannot be made ipso facto.

What controls it?

The main purpose of a delegated legislation is to supplement and not to supplant the law. However, such legislation has its own inevitable evils. To safeguard such laws, there are certain ways through which delegated legislation can be controlled. These ways of control are divided into two, direct and indirect. While direct controlling includes control and supervision of Parliament; the indirect control includes the judicial control and review process. One hand the parliament always has the general control to alter any bill before its made into law. Also, after such laws are made by some other authority, the parliament always has the power to amend or repeal such law if it does not serve the purpose why the delegation was made in the first place.

On the other hand, the judiciary has the power to declare any law void that goes against the law of natural justice and good conscience. Also, the delegated law which is ultra vires in nature can be held repugnant by the judiciary without being able to annul or amend it. There are other indirect controls over a delegated legislation as well. This includes giving the delegation to a trustworthy authority to avoid any defect; publicize the law effectively to get a vigilant public opinion to avoid any arbitrariness, and; taking experts’ opinions on such laws to avoid any ‘blanket’ or vague legislation.

Benefits

After understanding the controls over delegated legislation, now we move on to another important question. ‘Why Delegated Legislation?‘

The contemporary societal needs have made the law-making procedure too complicated for any ordinary person. While it is a delicate issue at hand, there are certain benefits that make delegation the best possible way of making supplementary laws. Here are the reasons why delegated legislation works in India more efficiently:

Time-Saving – In a large democracy like India, the legislature is always burdened at the first instance. By enabling delegation to the executive to make subordinate law saves time for the parliament to instead work on more complicated issues.
Access to special expertise – In most of the cases, the members of parliament are unconnected to the fields they are making laws in, and it is possible for them to make bills defective at their outset. Delegation to departments having an expertise in the required field thus not only saves time on unnecessary defects but also makes the process faster since the time given for drafting bills is anyways inadequate.
Flexibility to law – In no case can the lawmakers anticipate the future contingencies that may arise and challenge the law which is in making. Delegating the law-making power to the department concerned can help to add details that might help in avoiding such unforeseen contingencies. Thus, such delegations allow ample scope to amend through swift actions in cases of emergency owing to its gap-filling details to the changing needs of the society.

Disadvantages

Despite the benefits like reducing workload and adding expert details, delegated legislation poses certain threats to the supreme authority of legislation that even the controls are inadequate to handle. Some of them include:

Legality – The most basic criticism that this legislative kind receives is its lack of legality. Firstly, the laws are supposed to be made by the people democratically elected. However, in such legislations, the laws are instead made by people not directly elected to the House of Commons, thereby contrasting the democratic setup of the state. Secondly, this, in turn, allows for expropriation of the legislative by the execution, thereby challenging the doctrine of separation of powers.

Accountability – In normal circumstances, the legislative is answerable for the defects and lacunas in the laws made. However, when laws are made by unelected delegators, the accountability drops down to a specific ministry, thereby eroding the constitutional role of the parliament. Also, in the process, it unveils the inability of the parliament to check upon the law owing to its lack of expertise on the concerned law.

Inadequate Publicity – A lawmaker is required to publicize the law to the general public in order to fulfil the principles of natural justice and good conscience. However, the problem with delegated legislation is that there is no mandate to make enough arrangements for its publicity for the general public. Also, even if the arrangements are made, the words used by the concerned authorities are too complex to be deciphered by the common public. This, in turn, is a major drawback for states where ignorance of the law is not an excuse.

Inadequate Control – Despite such delegation being authorized by the legislation itself, the control over it is lacking the expected vigilance. Neither the legislative have the time nor the expertise to keep a check on such laws. In the first place, such delegated legislations have to be laid down before the parliament for an informed approval. However, one of the major limitations to such delegation is there is no adequate control to ensure that the delegated legislation is closely surveilled upon, thereby checking upon the administrative authority making it. In other words, there is a lack of parliamentary check and control over the delegated legislation which in turn makes the executive wing creating it go uncontrolled.

To curb these demerits, prima facie the authority should be given to a trustworthy subordinate department and nothing less than that. At the time of sanctioning of such law, the delegating authority shall be consulted. Also, the publicity of such law should be unprecedentedly made on a more alarming scale allowing the public to give their feedback which can further be used to amend or revoke such law. Prior to its coming into force, all such laws should be completely checked and discussed upon by the legislative. In case, the law avoids such deliberate discussion, the judicial review and supervision control will thereby minimize any chance of them being defective.

What cannot be delegated?

While many rules, regulations or by-laws in India are a product of delegated legislation, there is still a circumference of scope within which only such delegation can be made. Not everything and anything can be delegated to the executive.

In the case of Delhi Laws Act, 1912, In re v. Part ‘C’ States Act, 1950, It was held that the parliament cannot delegate what construes ‘essential legislative features’ which basically means deciding upon the legislative policy and then converting it into binding regulations. Therefore, what can be delegated is only what comprises the ‘non-essential’ functions of the legislative. Also, it held that since India followed the English model of parliament, which thus made the executive accountable to the legislative, and thus the separation of powers didn’t exist in India. This in turn validated the principle of delegated legislation.

In the case of Ajoy Kumar Banerjee v. Union of India, The principle of Delegated legislation was laid down as, “This principle which has been well-established is that the legislature must lay down the guidelines, the principles of policy for the authority to whom power to make subordinate legislation is entrusted.” The most enchanting problem that the delegation of legislative powers faces is its validity. In the most controversial and infamous case of Delhi Laws Act, 1912, In re v. Part ‘C’ States Act, 1950, the three tests for a valid delegated legislation were laid down:

It must be a delegation in respect of a subject or matter which is within the scope of the legislative power of the body making the delegation.
Such power of delegation is not negated by the instrument by which the legislative body is created or established.
It does not create another legislative body having the same powers and to discharge the same functions which it itself has, if the creation of such a body is prohibited by the instrument which establishes the legislative body itself.

Only if these tests are passed by the delegation, will the delegation be valid.

It was in this case that the ‘Doctrine of Abdication’ was propounded by the judiciary.
It held that the parliament cannot completely abdicate itself by creating a parallel authority and can only delegate ancillary functions. Instead, it has to make sure that the executive only works as a subordinate authority and does not become a parallel to the legislative. Thus, when the delegated law is ultra vires, it ipso facto means that the legislature has abdicated its ‘essential’ functions.
The Court was also of the view that being a subordinate, its existence was subject to the legislature’s authority conferred upon it, and thus the legislative can dysfunction the same whenever it desires. Also, no delegated legislation can be held unconstitutional or repugnant only on the pretext that it was not made by the legislative but other authority authorized by it. Thus, even though politically it seems to elude the electorates’ trust, the delegated legislation does not become constitutionally invalid.

Conclusion

Sir Cecil Carr remarks, “The legislature provides the gun and prescribes the target, but leaves to the executive the take of pressing the trigger”. Delegated Legislation permits the executive to pass the law rather than the parliament. It is often argued that India follows the principle of ‘delegatus non-potest delegare’ meaning that there is a prohibition on delegation of power by the parliament since it is the one who itself has the delegation work from the supreme law to make laws for the state.

However, in the In re Delhi Laws Act case, the court took the view that delegation was a part of legislative functions, and since India doesn’t follow the stricter form of Separation of powers, this principle of ‘delegatus non-potest delegare’ does not apply in India. Thus, delegated legislation is a valid legislation unless limited by the guidelines lay down by the Hon’ble Supreme Court of India in the form of the three tests. As for the demerits such legislation poses, Dr. C.T. Carr has already suggested that the safeguards have to be exercised against the otherwise inevitable evils of the delegated legislation.

Delegated Legislation, if handled carefully, is a boon for any welfare state. Its features of being made by an expert ministry and having detailed technicalities, makes it a better version for having timely speedy laws as per the changing needs of the society.

References

Black’s Law Dictionary
Manupatrafast.com

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This article is written by Hitesh Vachhani, 4th year Law Student at GLS Law College Ahmedabad. This article focuses on the advancement of technology that has raised a question regarding the online contracts and how the Judiciary and the Legislature has responded to the same.

INTRODUCTION

The advancement of technology has changed the lifestyle of the people. Technology has no geographical limitations and thus there’s quick and wide dissemination of information than before. It has also changed the manner which the businesses are conducted. Internet is being used for electronic commerce, social networking, dispute resolution, sending emails and writing blogs. Today, electronic commerce is the most significant features of the Internet.

Electronic commerce includes all the type of activities by a person or a firm such as buying and selling of products and services like using computers or any electronic platform via the use of internet. And online contracts form a part of electronic commerce. Thus conducting business over the internet demands agreement between the parties. Online Contracts or Cyber Contracts or E-Contracts or Digital Contracts is a shift from the traditional mode of face to face contract and the parties can contract without meeting each other.

Traditionally, in a contract, one of the parties to the contract makes an offer and the other accepts the offer and thus there is a meeting of two minds and the contract is said to have been entered into between the parties. In online contracts, the parties can agree to the terms of the contract via the internet i.e., via exchange of emails or other possible suited mediums. But in both, traditionally or in online contracts, the essential requirements of the contracts have to be fulfilled for the contract to be valid and made enforceable in the courts of law.

ESSENTIAL REQUIREMENTS FOR ONLINE CONTRACTS

The following requirements have to be fulfilled for the contracts to be held valid under the Indian Contract Act, 1872:

Offer
Acceptance
Intention to create legal relationship
Lawful Object
Lawful Consideration
Parties must be capable to enter into contracts
Free Consent
Possibility of Performance

DEVELOPMENT OF THE CONCEPT OF ONLINE CONTRACTS

The Indian Contract Act, 1872 which is a colonial-era law defines a contract as an agreement enforceable by law. Traditionally the Indian Contract Act would only apply to the agreements entered into between the parties face to face. But as early as in 1996, the Hon’ble Supreme Court in Bhagwandas Goverdhandas Khedia v. Girdharilal Parshottamdas & Co.¹ was posed with a question that whether the contract entered into between the parties orally over a telephonic conversation was a valid contract capable of being enforced in a court of law. The SC by a majority of 2:1 (the majority being J. Shah and J. Wanchoo) held that the draftsmen of the Indian Contract Act, 1872 could not have envisaged the use of the telephone because it was not invented and therefore the words of the provision should be confined to communication by post. Thus, the contract was not a valid contract and could not be enforced. But the minority opinion of Hidayatullah J. is what opened the doors for online contracts.

According to J. Hidayatullah, the law should have been interpreted in the present-day context. He observed:
“The law under consideration was framed at a time when telephone, wireless, Telstar, Early bird were not contemplated. If the time has marched and the inventions have made it easy to communicate instantaneously over long distance and language of our law does not fit the new condition it can be modified to reject the old principles”.

It is true that the draftsman of the contract law could not have contemplated scientific inventions. Further, it is also important that the provisions of the law are interpreted in a progressive manner. The statues must be construed to continuously update the wordings in accordance with the changes in the social condition, science and technology.

LAWS THAT GOVERN THE ONLINE CONTRACTS

There are various laws that govern the online contracts such as the Indian Contract Act, 1872, the Indian Evidence Act, 1872, the Information Technology Act, 2000 and the Indian Stamps Act, 1899.

It is important to note that the requirements of the online contracts are similar to that of physical contracts under the Indian Contract Act, 1872 i.e., there should be a lawful object, lawful consideration, the parties must be competent enough to contract, there must be free consent and there must be an intention to create a legal relationship. Thus, even for the online contracts the provisions of the Indian Contract Act, 1872 have to fulfilled for it to be made enforceable in the courts of law.

However, the doubts as to the evidentiary value of the online contracts may arise. To settle the doubts raised qua the evidentiary value of the online contracts there are certain provisions in the Indian Evidence Act, 1872 which govern the same. They are as follows:

Section 85 A: This section presumes the existence of the electronic agreement after the agreement is concluded by affixing the electronic signature of the parties.
Section 85 B: This section allows the court to presume that the record in question is not put to any kind alteration. It also allows the court to presume that the electronic signature has been affixed with the intention of signing and approving the electronic record. This section also provides that the section should not be misread so as to create any presumption relating to the integrity or authenticity of the electronic record or digital signature in question.
Section 88 A: This section allows the court to presume the existence of the electronic messages and also specifies that the court shall not make any presumptions as to the person by whom that message was sent. The Court may presume that an electronic message, forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission.
Section 90 A: According to this section where the electronic documents are proved to be five years old are and are produced from the proper custody, the court may presume that the electronic signature so affixed on the document was affixed by him or any other person authorized by him so as to validate the existence of the contract.
Section 65 B: According to this section any information contained in an electronic record which is printed on a paper or stored/recorded/copied on optical/magnetic media produced by a computer shall be deemed to be a document and is admissible as evidence in any proceeding without further proof of the original, provided certain conditions mentioned in sub-section 2 of section 65 B are fulfilled.

The Information Technology Act, 2000 recognizes the basic features of the contract such as communication, acceptance and revocations which may be expressed in electronic form or by means of an electronic record. Signature of the parties to the contract is essential but is not required under the Indian Contract Act as it recognizes the existence of the oral contracts as well. The principal function of signing a document is to confirm the identity of the contracting parties and to give consents to the contractual terms and to refuse repudiation, i.e. when a person appends his signature, he cannot subsequently refuse that he was not a contracting party. Therefore, the IT Act makes provision to authenticate the electronic records. Section 3 of the Information Technology Act, 2000 provides that any subscriber can authenticate the electronic record by affixing the electronic signature. Section 3 A of the Information Technology Act, 2000 defines electronic signatures and makes this electronic authentication technique reliable.

In particular, the IT Act 2000 excludes the following documents from electronic transactions:

Negotiable Instruments
Power of Attorney
Trust Deed
Will
Sale Deed or Conveyance deed with respect to the immovable property of any documents relating to any interest in an immovable property.

Section 10A of the Information Technology Act, 2000 hints at the validity of e-mail contracts. It reads as follows: “Where in a contract formation, the communication of proposals, the acceptance of proposals, the revocation of proposals and acceptances, as the case may be, are expressed in electronic form or by means of an electronic record, such contract shall not be deemed to be unenforceable solely on the ground that such electronic form or means was used for that purpose.”

In the present era the formation of contracts via emails are increasing and to ensure that the online contracts are not faced to with any legal implications this provision was inserted into the Information Technology Act, 2000.

JUDICIAL RECOGNITION OF ONLINE CONTRACTS

In Trimex International Fze Limited v. Vendata Aluminium Limited², The petitioner had applied to the Hon’ble Supreme Court under section 11(6) of the Arbitration and Conciliation Act, 1996 for the constitution of the arbitral tribunal. The respondents objected to the same on the grounds that there was no contract between the parties and therefore there could not be any arbitration agreement between the parties. It was the contention of the respondent that the acceptance over the e-mails could not give rise to the contract and there was always an intention that a formal contract would be signed in future.

In Rickmers Verwaltung GNBH v. Indian Oil Corporation Limited³, The Supreme Court clearly contemplated that possibility of exchange of correspondence between the parties would amount to contract between parties. Thus relying on the above decision of the three-judge bench the court held that “Unconditional acceptance of contract concluded orally or in writing [or by e-mail].. mere absence of a signed formal contract, would not affect either unconditional acceptance of contract or implementation thereof.” Thus, the e-mails which convey the clear intention of the contracting parties can be treated as a binding contract.

In Ambalal Sarabhai Enterprise Limited v. KS Infraspace LLP Limited, The Hon’ble Supreme Court had decided the validity of agreements entered into by the parties using a combination of communications over WhatsApp and emails. The court stated that: “The e-mails and WhatsApp messages will have to be read and understood cumulatively to decipher whether there was a concluded contract or not. The use of the word ‘final draft’ in the e-mail… cannot be determinative (of offer or acceptance) by itself”. Therefore the courts have accepted and provided that the agreements can be executed electronically, so long as they meet the minimum requirements of the Contract Act and the IT Act.

The foreign courts have also given a more liberal construction. There are judgments which read that unless an inference can be drawn from the facts that the parties intended to be bound only when a formal agreement had been executed, the validity of the agreement would not be affected by its lack of formality.

CONCLUSION

The advancement of technology will bring more and more challenges and thus it is important that the laws are updated and upgraded from time to time to keep up with the evolving technology. The judiciary is still administering the online contracts and it still remains a developing subject as there are not many judicial decisions on this point.

However, the fact, that many Indian courts recognize the extensive inclination to e-commerce and reliance on the internet cannot be denied. The prevailing legal judicial and legislative intent appears to be that any legally valid acts would maintain their validity even if performed online or electronically provided that such contract satisfies all the essentials of a valid contract.

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“Wars are not won in a day”

This Article is written by Shantam Patil pursuing BA.LL.B from HNLU, Raipur. In this article, he has discussed the legality of lockdown amid Coronavirus with the reference of Draconian Law, an Athenian law scribe under which small offences had heavy punishments.

Introduction

On 11th March 2020, a 123-year-old law (so-called draconian law) was implemented and came into force by the authority of the President and Government of India.

Karnataka was the 1st Indian State to implement this law. Then after many States like Maharashtra, Delhi and others also joined the league and were followed by many others. A series of drastic and rapid events then took place in our country. People ran to the shopping malls and grocery markets, causing a tremendous situation. A heavy police force was then deployed to control the situation. Resulting in many arrests and quarrels between the public and the authorities.

Finally, Prime Minister Narendra Modi came out and announced the total lockdown in India for 21 days on 24th March 2020 at 8 pm and it started functioning from the next day onwards i.e. 25th March 2020. All Economical and other beneficial activities stopped and there was no exchange. India shut its $2.9 trillion (£2.3tn) economy, closing its businesses and issuing strict stay-at-home orders to more than a billion people. Air, road, and rail transport systems were suspended.
Then the second lockdown was announced on until May 3rd and lastly the on 01st May the GOI extends nationwide lockdown further by two weeks until 17 May.

History

Historically it weighs very much important because it is the first-ever all-over nationwide lockdown after Independence of India. Many situations like this occurred in India and also people of India fought with that and survived. The first-ever known situation like this happened during the British regime over India in the year 1897. There was bubonic plague spread all over the city of Bombay (now Mumbai) and the British came up with the Epidemic Diseases Act, 1897.

It is a Pre-independence era, A 123-year-old law that was enacted on the 4th of February 1897. It was evolved by the British Council to tackle dangerous epidemic diseases and was used to prevent the spread of the outbreak of the bubonic plague in India, particularly in Bombay in 1897. This act gave draconian powers to the colonial government which allows British authorities to detain any person and at any time, also it allows for medical examination of the detainee.

While introducing the Epidemic Diseases Bill in the Council of the Governor-General of India in Calcutta for ‘better prevention of the spread of dangerous epidemic diseases’ John Woodburn, the council member who introduced it, himself considered the powers mentioned in it as ‘extraordinary’ but ‘necessary’. Woodburn emphasized that people must ‘trust the discretion of the executive in the grave and critical circumstances.’

This law proved to be very stringent for Indian freedom fighters and resulted in the arrest of many freedom fighters, one of them was Bal Ganga Dhar Tilak. He opposed this act and he used the term “Military Terrorism” in his newspaper Kesari for this pre-independence draconian law.
The Act has, since then, been invoked to fight dengue and malaria in cities like Chandigarh in 2015, cholera in Vadodara in 2018.

Current Scenario

Indeed, there is no doubt that this lockdown is completely legal and the Constitution of India provides for this. The Disaster Management Act provides for a National Disaster Management Act,2005. This is also the first time a nation was shut under the provisions of the Disaster Management Act,2005. This is also the first time a central government has issued directions of this magnitude to the states. The Disaster Management Act provides for a National Disaster Management Authority and section 6 of the legislation deals with powers of the authority from which the authority has issued the directions to the state and central governments.

Section 6(2)(i) of the Act authorizes the National Disaster Management Authority, headed by the prime minister, to take measures for “the prevention of disaster, or the mitigation, or preparedness and capacity building for dealing with the threatening disaster situation or disaster as it may consider necessary”. The Act also provisions for a national executive authority, which exercises powers to issue guidelines that will be in effect during the lockdown. The Disaster Management Act also casts a duty on the states to follow the directions of the NDMA as mandated under Section 38 of the Disaster Management Act.

There are other acts also which the government can exercise in situations like – war, state emergency, and financial emergency. And these are: –
Article 352 of the Indian Constitution which provides that the President of India can declare emergency in situations like war, external aggression, or armed rebellion.

Article 356 of the Indian Constitution provides that the President of India can declare state emergency when he is satisfied that the state cannot further be carried out according to the procedure established by the law.
Article 360 of the Indian Constitution provides for the declaration of financial emergency by the President of India when he felts that there is financial instability.

Cause and Effects

For a country whose population is 1.35 billion and also stands 2nd in terms of population.

Certainly, the nation-wide lockdown has proven to be more useful for our country and has helped to tackle the Novel Coronavirus. The reason why we are doing a far better play in the case of positive coronavirus patients than other powerful nations is because of the lockdown imposed all over India by the Government of India.

Also, it has attacked the economy of India very badly and some sources confirmed that it may be possible that a situation like in 1929 happened to cause a major outbreak to the economy that can happen due to this crisis.
Many of the contracts made between two parties to a contract that requires physical attention and supervision shall become void because of the nationwide lockdown and curfew-like situation. This has been provided in Section 56 of the Indian Contract Act, 1872 the doctrine of frustration. It says that “An agreement to do an act impossible in itself is void. And the same has happened. People cannot leave their house and so they are unable to carry out the performance of the contract they may have made.

All the upcoming examinations which were going to be held are cancelled and the board results of Students are delayed due to coronavirus. This would cause a severe drawback in the academic performance of fellow students of the country. Many universities and schools have started online classes for their students. And the government is launching many e-platforms for education. But only the students living in the urban area would be getting benefits from this and people living in the rural area could not because of the poor internet connectivity issues.

Many NGOs, Communities, and Social institutions are coming forward to help and giving large amounts of donations to the people in need. The Government has also exempted common people from various taxes which they pay in a normal situation.

Conclusion

The Government of India is doing its best to stop the spread of Coronavirus in India by taking harsh measures like lockdown, the imposition of the Disaster management act, and Epidemic diseases act. Also, the Central government is cooperating with all the state governments to provide relief and provide assistance to the needy people. India has entered into the third phase of lockdown. This is the situation in which a country requires contribution from every citizen. This is the time that people have to unite and fight against this deadly virus. Now, the time has come that every individual unites together and contribute to fighting against coronavirus.

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