Tag: #caselaws

Citation

1979 AIR 621, 1979 SCR (2) 641

Date of Judgment

12/12/1978

Court

Supreme Court of India

Bench

• Justice P.N. Bhagwati
• Justice V.D. Tulzapulkar

Introduction

According to the Promissory Estoppel doctrine, the promisor will refrain from breaking the promise if it would be unfair for him to do so whenever an unambiguous promise is made with the intent to establish a legal relationship or affect one that will arise in the future, knowing or intending that it would be acted on by the other party and is in fact acted on. This is the main referred law in this present case. If parties who had already agreed to clear-cut terms involving specific legal outcomes later engage in negotiation, it may be assumed that Promissory Estoppel only applies to situations in which the parties are already bound by a legal or contractual relationship and one of them promises the other that strict legal rights under the contract won’t be enforced. However, the court found that the theory of promissory estoppel, even as it was originally stated by Lord Denning in the High Trees case, did not contain any such limitation, and thus it cannot apply in the current case, Motilal Padampat Sugar Mills.

Background of the Case

The appealing party in this instance was a limited sugar production company. His main line of work was producing and selling sugars. On October 10th, 1968, news broke that the respondent (In this case- The state of Uttar Pradesh) had decided to exempt all new modern units in the State of Uttar Pradesh from the Tax charges for a period of three years under Section 4-A of the Uttar Pradesh Sales Tax Act, 1948. On October 11th, 1968, the appealing party spoke with the Director of Industries, stating that the party sought confirmation of the exemption and wished to establish a factory to produce vanaspati in light of the business charge occasion given by the administration. The appointment was confirmed by the director of industries. The Chief Secretary of the Government of Uttar Pradesh made an affirmation with a similar effect too.

The appealing party went ahead and built up the processing plant after receiving these certifications. The Uttar Pradesh State government reexamined the issue of exclusion in May 1969 and suggested the litigant attend a gathering. The representative of the appealing party testified at the meeting that the plaintiff had continued constructing the manufacturing facility on the affirmation and assurance of the respondent (the legislature of Uttar Pradesh). He took out a sizable loan and began to pay it back under the impression that the government had exempted him from paying taxes. But after some time, the government reconsidered its tax exemption strategy. It requested the petitioner attend a meeting discussing this matter and called for one to be held. To attend the meeting, the petitioner dispatched a representative. In any case, the State Government of Uttar Pradesh made the strategic decision on January 20th, 1970, to grant a small reduction in the deals charge to new vanaspati units that began operations by September 30th, 1970. Once again, however, the State govt. went back even on this promise denying any concession to be given. Plaintiff sued the government on account of promissory estoppel.

Issues Raised

The issues raised in this case are-

1. Whether the plaintiff’s acceptance of a partial exemption rendered his entitlement to have a cause of action?
2. Whether the plaintiff has a claim based on promissory estoppel?
3. Is it possible to take such action against the government when it is functioning in such capacities as government, sovereign, or administrative?
4. Given that the plaintiff did not experience any harm, would the theory of Promissory Estoppel apply in the current situation?

Contentions of Parties

Arguments of Petitioner- The main defence put forth on behalf of the appellant was that the respondent had made a categorical assurance on behalf of the State Government that the appellant would be exempt from payment of sales tax for a period of three years from the date of commencement of production. This assurance was made knowing or intending that the appellant would act on it, and in fact, the appellant did act in reliance on it and the State Government changed its position. The appellant argued that since waiver was a factual issue that needed to be pled and since it wasn’t addressed in the affidavit submitted by the State Government in opposition to the writ petition, the State Government was ineligible to rely on the waiver argument. It was claimed by the appellant that even if the waiver defence was allowed to be raised, despite the fact that it had no mention in the pleadings, no waiver had been established because there was no evidence to support the circumstances under which it had sent the letter. It was also impossible to claim that the appellant, with full knowledge of its right to claim complete exemption from payment of sales tax, had sent the letter.

Arguments from Respondent side- On the other hand, the State Government vigorously advanced the waiver argument, arguing that by addressing the letter dated June 25, 1970, the appellant had expressly forfeited its entitlement to full exemption from payment of sales tax. The State Government further argued that, even in the event of a waiver, the appellant would not be permitted to enforce the assurance provided by the fourth respondent because the State Government was not a party to the assurance, and that, in addition, in the absence of notification under section 4A, the State Government could not be prevented from enforcing the appellant’s obligation to pay sales tax under the terms of the Act. The State Government argued that there could not be a promissory estoppel against the State Government in order to prevent it from developing and carrying out its policies in the public interest. These were essentially the opposing arguments put out on behalf of the parties, and we will now analyse them.

Judgement

Though the division bench of the High Court rejected the plea for seeking promissory Estoppel against the respondents, the honourable Supreme Court held that-

1. The decision of the High Court of not granting Promissory Estoppel on the ground that the petitioner has waived that right and so can not have his course of action was wrong.
2. The waiver is a factual issue that needs to be adequately argued and proven. No plea of waiver may be raised unless it is pleaded and the facts supporting it are set forth in the pleadings.
3. Waiver is the act of giving up a right; it can be expressed or inferred from behaviour, but it must be “an intentional act with knowledge” in order to be considered valid. There can be no waiver unless the individual who is supposed to have done so is fully aware of his rights and intentionally gives them up while doing so.
4. ‘Promissory estoppel’ is a legal theory that was developed by equity to prevent injustice when a promise is made by someone who knows that it will be carried out and who is the person to whom it is made and in fact it is so. It is unfair to permit the party making the promise to break it after it has been acted upon. Despite being known as promissory estoppel, this legal doctrine has nothing to do with contracts or estoppel. The interposition of equity, which has always acted in accordance with form to lessen the burdens of strict law, serves as the foundation of the concept.
5. The true meaning of promissory estoppel is that when one party makes a clear and unambiguous promise to another party through words or conduct that is intended to forge a future legal relationship, knowing or intending that the other party will act on the promise, and that the other party actually does act on the promise, the promise will be enforceable against the party who made it and he will be bound by it whether there is a pre-existing relationship between those parties or not. In a situation when justice and fairness call for it, equity will prevent a person from insisting on stringent legal rights even when they originate from his own title deeds or from legislation rather than under any contract.
6. The same limiting estoppel in the strict meaning of the word cannot prevent the notion of promissory estoppel. It is an equitable concept that the Courts developed for the purpose of upholding justice, thus there is no reason why it should only be applied sparingly as a form of defence or used as a shield rather than a sword to establish a claim. It might serve as the impetus for legal action.
7. The Government would be held bound by the promise and the promise would be enforceable against the Government at the request of the promisee even though there is no consideration for the promise and the promise is not recorded in the form of a formal contract as required when the Government makes a promise knowing or intending that it would be acted on by the promisee and the promisee, acting in reliance on it, changes his position.
8. The doctrine of promissory estoppel must give way when equity demands it since it is an equitable doctrine. The Court would not raise equity in favour of the promisee and enforce the promise against the Government if the Government could demonstrate that, given the facts as they have developed, it would be unfair to hold it to the promise it made.
9. The moral standards of the society must be in accordance with the law for it to be legitimate and win social approval. Closing the gap between morality and law and achieving as close to a match as feasible between the two should be the constant goal of legislatures and courts. A key judicial advancement in that direction is the promissory estopped concept.
10. The distinction between a private person and a public body cannot be made in terms of the promissory estoppel theory.  This idea also applies to a government entity like a city council. This approach, however, cannot be used to circumvent a legal responsibility or liability. It cannot be used to force the government or even a private person to carry out an unlawful act. Additionally, promissory estoppel cannot be used to prevent the exercise of legislative power. By using the promissory estoppel concept, the Legislature can never be prevented from doing its legislative duties.

Conclusion

The case turned out to be very important in other cases. The court attempted to define promissory estoppels in this instance. This case did a good job of demonstrating how promissory estoppel could be a defence. However, it must be used with the doctrine of consideration if it is to be used as a weapon. This case demonstrated how important it is for society to stop fraud and injustice. This certificate appeal brings up a significant issue in the area of public law. Although it is a relatively new doctrine, it has the potential to be so prolific and packed with development opportunities that traditional attorneys are concerned it could upend established doctrines, which are viewed almost reverently and have held the line for decades.

This article is authored by Dibyojit Mukherjee, a student at the Institute of Law, Nirma University.

RELEVANT POST:

Doctrine of Estoppel

Case Citation

1981 SCR (2) 408, 1981 SCC (1) 627

Bench

Bhagwati, P.N.

Decided on

19/12/1980

Relevant Act/Section/Article

Articles 21 & 22 of the Constitution of India, 1950, Sections 50, 56, 57,167, etc. of the Code of Criminal Procedure, 1973.

Introduction

With about 70% of the country’s population living below the poverty line and perhaps more legally illiterate, it will be difficult for the judiciary of the world’s largest democracy to bring justice to everyone. Legal aid and representation are important elements in the legal remedy of wrongdoing by the guilty, and in countries like India, poor living conditions and financial constraints make it difficult to find oneself before the country’s justice system. Lack of representation is common. The provision of free legal aid under Article 39A¹ of the Indian Constitution, introduced by the 42nd Amendment to the Indian Constitution, is encouraged. But the inclusion of such a provision came at the cost of, an insight into, despicable injustices committed in the past.

Facts of the case

Between 1979 and 1980 there were reports that police poured acid into the eyes of 33 pre-trial detainees in Bhagalpur, Bihar. It was reportedly the worst case of police torture and has come to be known as one of the darkest times in independent India’s history. Bhagalpur Blindings case is another name for this case. Prisoners on trial were blinded by the police and brought before a judge, who failed to investigate any injuries intentionally or unintentionally inflicted on the defendant, and the district and session courts judges visited the alleged Bhagalpur Jail only once a year to review prison conditions. The blind prisoners were later admitted to the Rajendra Prasad Eye Institute in New Delhi, but their eyesight was severely impaired and could not be restored by surgery or treatment. Several briefs were submitted to the Supreme Court and the Court decided to hear them all together.

Issues of the Case

• Whether the state was liable to pay compensation to blinded prisoners for violation of the fundamental right under Article 21² of the Constitution.
• Whether the state failed to provide legal representation to the accused.
• Whether the magistrate failed to discharge his duty of offering free legal aid to the
• accused.

Petitioner Arguments

Articles 21 and 22³ require the state to provide free legal aid to all those in need. It is important to ensure that those accused of crimes receive a proper, fair, and just trial. Article 22(1) expressly guarantees an individual’s fundamental right to be represented by an attorney of their choice. Detainees were blinded intentionally and it violated their constitutional right to live with dignity under Article 21. In many cases, the accused were not brought before judicial authorities at their first appearance and remained in prison without judicial authorities ordering pretrial detention of the accused.

Article 21 implies an obligation to compensate a person who has been deprived of life or personal liberty by means other than those provided for by law. As a result, the state is obliged to compensate blind prisoners. Furthermore, it may not be safe for prisoners released from the Eye Institute to return to Bhagalpur. Arrangements should be made to have them housed in New Delhi at the state’s expense.

In some cases, the accused were not handed over to judicial authorities within 24 hours of arrest, which is a violation of Article 22(2) of the Constitution and Sections 56 and 57 of the 1973 CrPC⁴. They also did not investigate prisoners for “eye injuries.” Most of the blind prisoners said in statements to the Registrar that they had never been brought before a judicial officer, implying that the judicial officers merely signed the review order. In other cases, the accused were detained without remand. District and session magistrates did not inspect Bhagalpur’s central prison at any point in 1980. This is in clear violation of Supreme Court rules regarding joint and personal routine visits to prisons by District Judges, Sessions Magistrates, and Chiefs of Police. The independent judiciary fails to protect constitutional rights.

Respondent Arguments

None of the detainees sought legal assistance. As a result, the judge did not ask if he wanted legal representation at state expense. Financial constraints make it difficult for states to provide free legal aid. The state already bears many costs. As a result, it has become financially and administratively impossible to provide free legal assistance to the accused. It is not yet clear that the prisoner was blinded by the police and the investigation is still ongoing. There is currently no evidence that the state violated the victim’s right to life and personal freedoms beyond the judicial process. The defendant’s testimony alone cannot be trusted. It’s just hearsay evidence with no legal basis. An investigation into the pre-trial detention of suspects by police officers is ongoing. Therefore, the conclusion that the state is responsible at this time is not valid. Even if the police blinded someone and there was a violation of the fundamental rights enshrined in article 21, the state could not be held responsible for compensating the victims. There is no indication of improper conduct by the judicial officer. The blind person’s testimony to the Registrar that he was not brought before judicial authorities have not been substantiated. The accused’s unilateral testimony should not be taken seriously.

Judgment

Courts are in the constitutional obligation to provide free legal assistance to the accused at all stages of a trial if the defendant suffers poverty or hardship to achieve the goals of justice., ruled that it failed to do so. The court must inform the third judge and all courts at large that the judicial officer is entitled to render legal aid free of charge to the accused, if necessary, at the cost of instructing the state to pay for it. The court barred draconian action against the accused who failed to appear before a judge within 24 hours and called on state police to step up vigilance going forward. The court also held the state responsible for its egregious encroachment on the lives and liberties of prisoners by the police and ordered the state to compensate the victims, since the police are directly employed by the state and are also the means of the state.⁵

Analysis of the Judgement

The court began its argument by expressing its disappointment that the defendants were not granted or provided legal assistance by the judge simply because they did not request it. In the case of Hussainara Khatoon v. Secretary of the Interior⁶, the court held that the right to free legal advice is a fundamental right of a person accused of a criminal offense even if the defendant can afford it. The Court’s decision, in this case, is a clear law as illustrated by binding case law under Article 14(1) of the Indian Constitution. And the Court has expressed its displeasure that most states in the country have failed to heed its decisions or make efforts in that direction. The submissions made by the state that the financial condition of the state was not good enough to provide legal assistance to the accused, cannot be used as an excuse to avoid responsibility. To back this up, the court in the case of Rhem v. Malcolm⁷ said, “No government is permitted by law to deprive its citizens of their constitutional rights based on poverty.”

It quotes Justice Black in Jackson v. Bishop, who said, “Humane considerations and constitutional requirements are not to be measured by dollar considerations in this day and age.” The court emphasizes that the constitutional obligation to provide free legal aid to an accused applies not only when the trial begins, but also when remand orders are issued and when the accused is presented before the court from time to time. It makes use of the fact that approximately 70% of people living in rural areas are illiterate, and even more are legally uneducated and unaware of their legal rights and entitlements, which compensates for the additional burden on the state and the judiciary to ensure that such people are served justice. The legal aid movement is mentioned, and it is claimed that leaving the practice of rights to the sole efforts of an uneducated populace would make a mockery of the legal system and that legal aid would end up being a mere paper promise. The court orders that prisoners be transferred to the Blind Relief Association of Delhi after they are released from the hospital, as it may not be possible to return them to jail, where their safety may be jeopardized. It also finds that some of the accused were not brought before a magistrate within 24 hours of their arrest, which is a violation of every person’s legal right under Article 228⁸ and Sections 56 and 57 of the CrPC 1973. It is also shocking that the state continues to detain the accused without remand of orders, which violates the personal liberty guaranteed by Article 21.

The court condemns the police for such fundamental violations of arrest and detention rules and warns them not to repeat the same mistakes. As to whether Bihar is responsible for blinding detainees, the court was right for making them accountable that it was because the police officers were public servants in Bihar and were working for the state. The Court was also disappointed to learn that an inspection of Bhagalpur Prison by the District Court and the present court in 1980 had not taken place in violation of Supreme Court rules, and asked the High Court to thoroughly consider the matter and ordered law enforcement to conduct a thorough investigation to ensure law enforcement. The whole judgment is quite impressive and right. The court has given due regard to the principles of natural justice and made decisions that empower the poor and marginalized while bringing the guilty to conviction.

Conclusion

It is one of the most commendable decisions that has been given by the Hon’ble Supreme Court. The decision was made by Justice P.N. Bhagwati, a pioneer in the judicial movement and one of the Supreme Court’s most prominent jurists. This is a brutal and shameful way in which the state police, paid and stationed solely to maintain peace and harmony, and public safety, exercise their power to hold the lower courts wrong. On the one hand, the decision remains as important as it is today, providing a strong precedent and hopefully serving as a strong deterrent against similar events in the future. The ruling strongly supports the provision of free legal aid and brings justice to those who cannot afford it, as the court articulated in the Hussainara Khatun case.

---

References

1. The Constitution of India,1950, Art. 39 A
2. The Constitution of India,1950, Art. 21
3. The Constitution of India,1950, Art. 22
4. The Code of Criminal Procedure,1973, Sec. 56 and 57
5. Khatri vs State Of Bihar 1981 SCR (2) 408, 1981 SCC (1) 627
6. Hussainara Khatoon vs. Home Secretary, State of Bihar 1979 AIR 1369 1979 SCR (3) 532 1980 SCC (1) 98
7. Rhem v. Malcolm, 377 F. Supp. 995 (S.D.N.Y. 1974)
8. The Constitution of India,1950, Art. 228

This case commentary is authored by Jay Kumar Gupta, a student of the School of Law, NMIMS Bangalore, currently in the second year of BBA LL.B.(Hons.).

Case Number

Special Reference No. 1 of 1964

Case Citation

AIR 1965 All 349, 1965 CriLJ 170

Bench

J Takru, G Mathur

Decided on

10 March 1965

Relevant Act/Section/Article

Art. 211, Art. 22, Art. 194, Art. 21, Art. 143

Introduction

The Kesavananda Bharti case is well-known and frequently discussed, yet few people are aware that the Kesavananda Bharti case was assigned to a bench with less than half the judges who decided the Keshav Singh case. It required the combined efforts of numerous justices of the Supreme Court, High Court judges, MPs and MLAs, and ultimately the Prime Minister and the Chief Justice of India to take on this case. One of the most remarkable examples from Nehru’s presidency is this one. This case is of utmost significance to the Indian judicial system, but it has never been talked about.¹

Facts: Who was Keshav Singh?

In the Uttar Pradesh city of Gorakhpur, Keshav Singh was born. He belonged to the socialist party or served in municipal politics. The Congress Party was in power during the time. When a leaflet titled “exposing the shortcomings of Narsingh Narain Pandey” was published, it implied that Pandey, a legislator for the Congress Party, was dishonest. Narsingh Pandey started working on a case against Keshav Singh as soon as he learned about the booklet or leaflet. Pandey and other MLAs from the Congress party disagreed with the leaflet. They claimed that the leaflet violated their right to privacy. When Singh was asked to confirm his name on this issue by the district of the legislative assembly in Lucknow, he remained silent regarding the accusations made against him. When queries were directed at him, he stood with his back to the speaker and stayed silent. On February 19, 1964, Keshav Singh was supposed to go before the assembly and accept a reprimand, but he didn’t because he didn’t have the money to go (according to his excuse). The assembly decided that whatever that couldn’t be achieved amicably would have to be taken by force after Keshav Singh’s defense. On March 14, Singh was apprehended and brought before the assembly. If it weren’t for the decision dismissing Keshav Singh and his attorney’s appeal, the litigation and the issue might have been over at that point.

When the speaker of the legislature keeps asking questions, Singh chooses the challenging course. After then, things started to get worse, and the speaker called Congress MLAs to the assembly. Singh had written to the speaker to protest his conviction, attest to the veracity of the charges made in the leaflet, and denounce the authoritarian nature of the arrest warrant. By entering the home, Chief Minister Sucheta Kripalani imposed seven-day house detention on Singh after the MLAs had enough consensus on the same. The legislature approved a resolution in the format suggested by the chief minister, and Singh was then taken to prison for his one-week sentence. One day before Singh was scheduled to be released after serving his sentence, a lawyer on his behalf submitted a petition to the Allahabad High Court asking for his immediate release. The petition claimed that Singh’s imprisonment was unlawful because the assembly lacked the right to imprison him and because he was not allowed to defend himself after being brought before the court.

Issues

1. Whether or not the Legislative Assembly has no criminal jurisdiction and no authority to punish anyone for its contempt;
2. Whether or not the Legislative Assembly has such authority, the petitioner’s detention is illegal and violates Article 22(2) of the Constitution.
3. Whether or not the Legislative Assembly’s action in punishing the petitioner was malicious.

Observations and Decisions of the Court

The Supreme Court concurred, pointing out that the resolution of the assembly violated the independence of the judiciary. Article 211 was an essential component of the system that allowed courts to make difficult decisions, even if they were wrong, without worrying about political retaliation, therefore it could not be reduced to a meaningless assertion. The Supreme Court ruled that Keshav Singh can be granted bail while awaiting a decision and that the high court has the authority to consider his appeal. The parliament lacked the legal right to order Solomon’s arrest or to ask Justices Beg and Sehgal for an explanation. If the consent of the justice addresses the audience, the drama may compromise the independence of the judiciary. On the other hand, if they show up and make a strong defense, the assembly might be forced to stop acting to avoid being accused of harassing well-meaning judges. The judges have the option of filing a petition with the supreme court, but there was no guarantee that the judges would share the same outcome as the justices who heard the plea. They petitioned the Allahabad High Court, arguing that the assembly’s actions were against Article 211 of the Constitution, which forbids state legislatures from discussing the conduct of any high court or Supreme Court judge. While the case was still pending in court, Justices Beg and Sehgal requested a hold on the resolution against them.²

The court referred to English law, which states that any detention is prima facie unlawful, and the act is justified by the person who ordered the detention. Further, the court held that the appeal was flawed and could only succeed if the petitioner established his or her claims. Prima facie, the detention cannot be considered illegal, and the petitioner must prove that the duty was illegal, the court must decide whether the obligation is lawful. The court does not understand why the defendant should not be allowed to argue that the bond, warrant, and commitments used to detain the petitioner were valid. In any event, the court is entitled to the assistance of the defendant’s attorneys in resolving the issues raised in the case.

Legislature has not yet passed legislation regulating the powers, privileges, and immunities of the House, but the power to do so is granted by Entry 39 of List II of Schedule VII of the Constitution. The powers and privileges of the Legislative Assembly must therefore be determined according to Article 194(3). There is no express or implied prohibition in the Constitution against the Legislative Assembly exercising the privilege enjoyed by the House of Commons to commit for its contempt. The possession of power or privilege The argument is that the House of Commons had a similar penal power and that the inclusion of a separate provision in Article 193 regarding the penal power indicates that the Constitution’s authors did not intend to include any penal power under Article 194 (3). In other words, the argument is that Article 193 encompasses all penal powers conferred on the Legislative Assembly and that no penal power can be assumed as a result of the provisions of Article 194(3). The court didn’t agree with this assertion. Article 193 merely limits the power and privilege of state legislatures to punish people who sit or vote in the legislature without authority, in our opinion. This Article cannot be read as exhaustive of all the penal powers of the State Legislatures to commit for contempt is a judicial power is, in our opinion, not a compelling reason for denying the power to the Legislative Assembly because our Constitution does not provide for a rigid separation of powers. Since, even according to the petitioner’s learned counsel, Article 193 gives the Legislative Assembly the power to punish a person who sits or votes as a member of the Assembly in certain circumstances, which is also like judicial power, it cannot be said that the idea of the Assembly exercising judicial power was abhorrent to the Constitution-makers.

The HC rejected Keshav Singh’s argument that the facts discovered against the petitioner by Parliament did not constitute contempt of Parliament. The HC also ruled that the defendants did not violate Article 21 or natural rights because the Legislatures had established procedures for investigating allegations of violation of privilege. The HC also said the county jail warden is within the jurisdiction to execute the chairman’s warrant. Noting that the provisions of Part III of the Constitution do not apply where Article 194(3) of the Constitution applies, the HC notes that the fundamental rights of Part III are governed by Article 194(3) of the Constitution. The HC also ruled that the applicant was deprived of his liberties following the legal procedure set out in the last part of Article 194(3). Petitioners also argued that Congress’ decision to arrest him was motivated by political animosity and hatred. The Court couldn’t prove it for that reason alone. The Supreme Court dismissed the Keshab Singh case and refused to infer parliamentary malice. In dismissing Keshav Singh’s motion, the High Court said only the House could decide whether there was contempt of the House of Commons in a particular circumstance and that the court had not addressed the question of legality.

While the case is about violations of fundamental rights and constitutional crises, the focus is on symbolic gestures of solidarity by judicial authorities and how they collectively resolve disputes while they exist. It is about upholding the dignity and basic rights of citizens. enshrined in the Indian Constitution. This case highlights the importance of the separation of powers as one of the key building blocks of the constitution and how each can control excesses and respond appropriately. This decision ensured a proper balance of power between the two peers.

The Supreme Court also ruled that Articles 105(3) and 194 should not be used to limit the rights of citizens and lawyers to bring cases before the court. The Supreme Court has ruled that the House of Commons, as the highest court of record in the country, not Congress, can only try someone for contempt with an unwarranted general arrest warrant. The principles of Fundamental Rights and Judicial Review, especially Articles 32 and 226, not only empower but also impose obligations on the Supreme Court and the Supreme Court to exercise fundamental rights. The Indian Parliament and the State Legislatures are entitled to such privileges. As a result, courts may view the House’s implied warrant as a statutory order to punish someone for contempt. The SC not only wanted to recognize that the House has the power to punish insults and violations of privilege. The independence of the judiciary is seriously undermined if the House asserts the right to question the actions of judges. Not only that, the house has the power to punish disrespect and violation of privilege. Before a decision is made, the Privileges Committee will conduct an investigation and allow the complainant to comment.

Conclusion

If it weren’t for several defects and errors in judgment, the conflicts between the high court and the Uttar Pradesh assembly would never have escalated to the extent that they did. It was unusual for Singh’s attorney to enter a plea with only one day left in Singh’s sentence. The judge would have promptly revoked Singh’s bail if the government’s attorney had arrived at the high court at 3 p.m. with a report on the case. The fact that this case shows how readily constitutional institutions can turn against one another and how tough situations are best resolved by statesmanship rather than brinksmanship makes it noteworthy in and of itself.

References

1. Keshav Singh vs Speaker, Legislative Assembly AIR 1965 All 349, 1965 CriLJ 170
2. Atharva Kulshrestha, Keshav Singh – Case commentary,aishwaryasandeep.com(Last Accessed: 09 July, 2022) https://aishwaryasandeep.com/2021/06/07/keshav-singh-case-commentary/

This blog is written by Jay Kumar Gupta, a student of the School of Law, NMIMS Bangalore, currently in the second-year of BBA LL.B.(Hons.).

CITATIONS

1950 AIR 124, 1950 SCR 594.

BENCH

• Justice Fazal Ali, Saiyid
• (CJ) Kania, Harilal
• Sastri, M. Patanjali
• Mahajan, Mehr Chand
• Das, Sudhi Ranjan
• Mukherjea, B.K.

JUDGEMENT GIVEN ON

26 May 1950

FACTS AND BACKGROUND OF THE CASE

Romesh Thappar was a publisher of a weekly magazine called Crossroads; certain articles were published in his magazine regarding the doubtful nature of public policies especially foreign policy. These articles created suspicion among the public about governmental policies leading to a communist movement rising in some regions of Madras forcing the state government to impose a ban on circulation of the magazine in areas where the communist movement was going on with enthusiasm.

LAWS INVOLVED

1. Madras Maintenance of Public Order Act, 1949 Section 9 (1-A): It allows the government to stop the circulation, selling, and distribution of any journal in any part of Madras to ensure ‘Public Safety’ or preserving ‘Public Order’.
2. Constitution of India Article 19 (1) (a): Provides freedom of speech and expression to citizens of India. Freedom of speech and expression gives one a right to speak and express their opinions and ideas about something through traditional media or social media.
3. Constitution of India Article 19 (2): Provides for the reasonable restrictions to freedom of speech and expression granted under Article 19 (1) (a). These restrictions include the sovereignty and integrity and security of the state and friendly relations with foreign states.
4. Constitution of India Article 13: Provides for the laws that may or may not be passed before the commencement of the Constitution of India if violates fundamental rights mentioned in Part 3 of the Indian Constitution must be declared null and void.
5. Constitution of India Article 32: Provides an Indian citizen right to approach Supreme Court if their fundamental right has been violated by any government authority. The article goes as ‘Heart & Soul of Indian Constitution’ due to its protective nature towards other fundamental rights specified in Part 3.  
6. Constitution of India Article 226: Provides High Courts the power to issue writs for enforcement of fundamental rights.

ISSUES

1. Whether the violation of the fundamental right can be dealt with by Supreme Court before State High Court?
2. Whether the order passed by the government under Madras Maintenance of Public Order Act, 1949 Section 9 (1-A) violate the freedom of Speech and Expression?
3. Whether the existence of Madras Maintenance of Public Order Act, 1949 Section 9 (1-A) was itself unconstitutional for it violates fundamental rights mentioned in Part 3 of the Indian Constitution?  

DECISION OF COURT

On the issue of whether the Supreme Court can be approached before the State High Court, the court believed that Article 32 gives power to Supreme Court to issue writs if any government authority violates fundamental rights provided in part 3 of the Indian Constitution, which in itself as a fundamental right that cannot be denied. Hence, the Supreme Court as the guardian of fundamental rights cannot refuse to entertain any petition for seeking against infringements of fundamental rights.

The order passed by the Madras government was declared unconstitutional as it violates the Freedom of Speech and Expression mentioned under Article 19 (1) (a) of the Indian Constitution. The ban imposed by the state government on the circulation of magazines prevents the freedom to propagate ideas, opinions, and viewpoints regarding any issue that concerns the general public.

The Madras Maintenance of Public Order Act, 1949 Section 9 (1-A) was made with the interest of issues like ‘Public Safety’ and ‘Public Order’. Here, ‘Public Safety’ means the security of health of the general public from dangers that vary according to the situation. ‘Public Order’ means to deal with events that may lead to disruption of peace and tranquility of the province. Regarding the question of the unconstitutionality of the law, the Supreme Court invokes the ‘Doctrine of Severability’ to ensure if severing any law defeats the entire purpose of legislation or not. Thereby, declared that the said order contradicts the fundamental right given under Article 19 (1) (a) hence ultra vires. However, Court is of the view that entire legislation cannot be considered void as Article 13 of the Indian Constitution states that the law can be declared null and void only to the extent of its inconsistency with fundamental rights.

This article is written by Simran Gulia, pursuing BA LLB from Maharaja Agrasen Institute of Management Studies.

INTRODUCTION

India is one of the largest democracies in the world and in this country we follow the concept of the universal adult franchise which means a person above 18 years of age has a right to vote irrespective of their caste, colour, creed, religion, or gender. We elect our representative by giving a vote but what if we have to choose our representative among the persons with severe criminal records. In India, nowadays criminalization of politics becomes very common which means a person participating in an election is having a criminal record. This is the biggest irony out here where the ‘lawbreakers become the lawmakers’. This disrupts the roots of democracy where it is difficult to become even a peon with criminal records. On the other hand, people become ministers and represent the country with criminal records.

The number of politicians with criminal records is increasing day by day, which is a serious concern for the public. The data was provided by the Association of Democratic reform [ADR] reports in which it was stated that the elected Lok Sabha candidates in the year 2019 out of the 43% had criminal charges against them which is a nearly 26% increase concerning the elections of 2014.

The report by the ADR in collaboration with the national eye watch in which it was published that in the year 2009, 543 members were elected for Lok Sabha elections out of which 162 (30%) of them had criminal charges and 76 i.e 14% had severe criminal charges against them like murder, rape, kidnapping, etc. Also, in the 2014 Lok Sabha elections, 539 candidates were elected out of which 233 (43%) had criminal charges against them and 159 i.e 29% had serious criminal charges against them.

LAWS IN INDIA AGAINST THE CRIMINALISATION OF POLITICS

Some articles in our Indian constitution are against the criminalization of politics and those articles are

• ARTICLE 327
  Article 327 of the Indian constitution gives the right to the parliament to make provisions on the subject matter related to elections for either house of the parliament or for the legislature of a state._¹
• ARTICLE 102
  Article 102 of the Indian constitution deals with the disqualification of members from the elections of either house of the parliament on certain grounds which are mentioned under this article.²
• ARTICLE 191
  Article 191 of the Indian constitution also deals with the disqualification of members from the election but from the legislative assembly or legislative council of the state if they fall under the category mentioned under the article.³

EFFECTS OF CRIMINALISATION OF POLITICS

• AGAINST THE FREE AND FAIR ELECTIONS PRINCIPLE
  The candidates often use their muscle and money power which means they have the ability to finance their own elections and largely due to public image they try to gain votes. This demeans the principle of free and fair election as it limits the choice of electing a deserving candidate.
• AFFECTING GOOD GOVERNANCE
  The main issue is that lawbreakers become lawmakers, which undermines the democratic process’ ability to offer decent government. The structure of India’s state institutions and the quality of its elected representatives are reflected in these undesirable democratic tendencies.
• AFFECTING UPRIGHTNESS AMONG PUBLIC SERVANTS
  Corruption caused during elections due to the circulation of money during and after elections causes disruption in the working of public servants and thus, results in increasing corruption.
• CAUSES SOCIAL DISHARMONY
  Electing representatives who have a criminal record creates a bad precedent for the youth and also causes social disharmony and violence in society. This demeans the meaning of democracy in the eyes of the general public.

REASONS FOR CRIMINALISATION OF POLITICS

• LACK OF POLITICAL WILL
  Political parties don’t show any will or interest in curbing the criminalization of politics. Until now, efforts made towards this issue were made by the supreme court and the election commission of India. However, parliament must revise the Representation of the People (RPA) Act 1951⁴, which governs the disqualification of candidates who have been charged with serious crimes and have been found guilty in court.
• LACK OF ENFORCEMENT
  Making strict laws and regulations or passing judgment will not affect much until and unless implemented properly.
• NARROW SELF INTEREST
  Sometimes general public may focus on caste or religion criteria for casting vote and they may not be interested in checking the history or criminal record of the candidate. So, publishing criminal reports of the candidates is not enough to curb the criminalization of politics.
• USE OF MUSCLE AND MONEY POWER
  Candidates gain votes due to their muscle power and money power, despite having serious criminal records they use their identity and finance their election to gain votes. Furthermore, when all contesting candidates have criminal backgrounds, voters are sometimes left with no options.

CASE LAWS

UNION OF INDIA VS ASSOCIATION FOR DEMOCRATIC REFORMS AND ANR.
The association for democratic reforms filed a petition in the Delhi high court for the recommendations on how to make elections fairer, and transparent. The law commission produced some recommendations which are that the candidates should disclose their criminal history, educational qualifications, financial details, and other personal information on their websites. After this, the union of India challenged the petition in the supreme court of India that the high court voters did not have a right to such information. The court held that the right to know is a derived right from the right to freedom of expression and speech. Because such rights include the right to have opinions and collect information in order to be appropriately educated in formulating and distributing those opinions throughout the election process, the public has a right to know about candidates running for election. The Court elaborated on this argument by stating that a good democracy strives for an “aware citizenry,” and that any kind of misinformation or lack of information will result in a “uniformed citizenry,” rendering democracy a charade.⁵

PEOPLE’S UNION OF CIVIL LIBERTIES [PUCL] V. UNION OF INDIA
The people’s union of civil liberties [PUCL] challenged the validity of section 338 of the representation of people’s act, 1951 which says that a candidate is not allowed to disclose any personal information. The PUCL contended that it was a violation of Article 19(1)(a). the apex court held that the candidates should provide information about themselves to the voters. The basic information provided by the candidates can affect the decision of the voters. Furthermore, freedom of expression encompasses not just verbal and written communication but also voting. The expression of opinion through the final act of casting a ballot is part of the fundamental right of freedom of speech and expression under Article 19(1), even though the right to vote is not a fundamental right in and of itself. The apex court concluded that section 33B of the representation of people act, 1951 was unconstitutional.⁶

LILY THOMAS VS UNION OF INDIA
In this case, a writ petition was filed by the Lily Thomas and an advocate Satya Narain Shukla before the apex court for the purpose of challenging section 8(4) of the Representation of the people’s act which safeguards the convicted politicians from any kind of election disqualification based on pending appeals against their conviction in the appellate court. This petition was not allowed for 9 years and later, in July 2013 the supreme court finally passed a verdict in which it was held that the MP and MLA whether they are elected or not elected would be disqualified if they have criminal allegations against them by the trial court and the saving clause under section 8(4) will not be applicable.⁷

PUBLIC INTEREST FOUNDATION V. UNION OF INDIA
In this case, in the year 2011, the petition was filed by the BJP leader Ashwini Upadhyay and the NGO public interest foundation before the apex court to seek directions regarding the criminalization of politics and debarring them to contesting elections. The issue was whether the court can put any restriction on membership of parliament beyond article 102(a) to (d) and parliament’s legislation under Article 102(e). the court held that the debarring candidate to contest the election solely on the basis that they have a criminal record is wrong. The court directed them to fill out the form circulated by the election commission and the form must contain all the information. The candidate has to notify the party regarding criminal proceedings if he or she has against them while buying a ticket of a specific party. The political party has to update their website and to put regarding any criminal proceedings are pending against them and also make them publish in the newspapers and also to make huge publicity on electronic media.⁸

RECENT DECISION

The supreme court of India passed a judgment related to the criminalization of politics recently in February 2020 in which it was held that the political party has to update their websites regarding criminal history against the candidates and such information has to be published in even local and national newspaper. In October 2020, Bihar was the first election that followed the supreme court guidelines. This was done to preserve the purity of elections in the country and to provide voters with a fair choice to choose.

CONCLUSION

Till today what has been done regarding curbing the criminalization of politics has been done by the supreme court and the election commission. The parliament has to show some interest to make changes in the representation of people’s acts. The alone judiciary will not be enough effective in dealing with this issue.

In conclusion, the information regarding criminal history, financial authority, and educational qualifications of the candidates should be made available to the voters. So, that they can make the right choice and the elections conducted could be fair and transparent and the voters were given fair choice to choose candidates from them. Though information should be provided to the voters and it is important also but there should be a thin line between information provided to the voters and the rights of the candidates.

References:

1. The Indian constitution, 1950, art.327
2. The Indian constitution, 1950, art. 102
3. The Indian constitution, 1950, art. 191
4. The Representation of people act, 1951.
5. Union of India v. Association for democratic reforms and anr, (2002) 5 SCC 294.
6. People’s union of civil liberties V. Union of India, [WP (C) NO. 196/2001]
7. Lily Thomas v. Union of India, [WP (C) NO. 231/2005]
8. Public interest foundation V. Union of India, [WP (C) NO. 536 OF 2011]

This article is written by Prerna Pahwa, a student of Vivekananda Institute of Professional Studies, New Delhi.

INTRODUCTION

A transfer is an act of transferring something from one person to another. Any physical or virtual entity possessed by a person or group of people is considered property. A property asset can be transferred from one person to another through transferring rights, interests, ownership, or possession. Either or all of the ingredients can be satisfied. It can happen in two ways: by the parties’ acts and by law.

Section 5 of the Transfer of Property Act of 1882 defines the term “transfer of property.” It describes an activity in which a live person transfers property to one or so more people, or to himself or to one or so more living people, in the present or future. A living person is defined as a corporation, an association, or a group of individuals, whether or not they are incorporated.

Some important concepts in this act are as follows:

1. Immovable property involves land, benefits resulting from the land, and goods linked to the land, according to the General Clauses Act of 1897. Immovable property can be defined as including all property that is not standing wood, growing crops, or grass in the context of property transfer.
2. Mortgage debt was omitted from actionable claims following the amendment of 1900. Wallis C.J. held in Peruma animal vs. Peruma Naicker that mortgage debts might be transferred as actionable claims before 1900, but that they were excluded from the actionable claims because the legislature meant that the mortgage debt is transferred in the mortgagee’s interest through an instrument that is registered.
3. Instrument: The instrument is defined as a non-testamentary instrument according to the 1882 Transfer of Property Act. It serves as proof of a property transfer between living parties. An instrument is a formal legal document, according to the legal terminology.
4. Attested: A formal document signed by someone acting as a witness is referred to as attested. The executors are the persons who are in charge of transferring the property. In 1926, the amendment legislation was passed, stating that two or more witnesses must sign the document in the presence of the executant, not necessarily at the same time, and they must not be parties to the transfer.
5. Registered: According to the 1882 Transfer of Property Act, “registered” refers to any property that is registered in a jurisdiction where the Act is in effect. Various registration procedures must be followed.
   a. The property’s description should be stated.
   b. Avoid being a victim of fraud.
   c. A competent person should present the deeds.
   d. The property must be listed in the very jurisdiction as the registered office.
6. Actionable claims: A claim to any debt, except a debt acquired by a mortgage of immovable property or pledge o or hypothecation of movable property, or to any equitable interests in movables, not in the claimant’s possession, either actual or constructive possession, which the civil courts recognize as providing grounds for relief, whether such debt or advantageous interest is existent, accusing, or conditional.
7. Notice: The term “notice” refers to being aware of a fact. The individual is well-versed in a variety of scenarios. The Transfer of Property Act of 1882 settled 2 kinds of notices.
   
   Other important concepts are actual or implied notice means the one who is aware of a specific truth and constructive notice means that reality is discovered as a result of circumstances.
   
8. Transfer of property must be done by a competent person: For a legitimate transfer, the person transferring the property must be of sound mind, not intoxicated, a major, or not a person prohibited by law from entering into a contract of transfer of property with another person.
9. The transfer must be made in the following format: Property transfers do not have to be in writing, but if there is a specific property to transfer, it should be in writing:
   a) Over a hundred rupees was spent on the sale of the transportable property.
   b) The sale of intangibles must be done in writing.
   c) All mortgages with a value of more than a hundred rupees must be transferred in writing.
   d) A documented transference of actionable claims is required.
   e) Immovable property is given as a gift.
   f) A lease of more than one year on immovable property.

OSTENSIBLE OWNER

The provision is founded on the idea of proportionality. No one can confer a higher right on a property than what he owns, and alium transferee potest quam ipsa habet and nemo plus juris, which means that no one may transfer a right or title larger than what he owns. The ostensible owner’s transfer emphasizes the notion of holding out.

To make use of this section, you must meet specific qualifications, according to the law for its application. They are as follows:

1. The most important need is that the individual transferring the property is the ostensible owner.
2. The property owner’s permission should be given either implicitly or explicitly.
3. The transfer ought to be in exchange for something.
4. The transferee must exercise reasonable caution in determining the transferor’s authority to complete the transaction and whether he acted in good faith.
5. The idea of ostensible owner transfer is founded on the doctrine of estoppel, which states that when a genuine owner of property makes someone appear to be the owner to third parties and they engage on that representation, he cannot retract his representation.
6. This clause and its rules apply only to immovable property but not to movables.

However, the ostensible owner is really not the true owner, but he can pretend to be the real owner in such transactions. By the purposeful neglect or acquiescence of the genuine owner of the land, he has obtained that right, rendering him an ostensible owner. A guy who has been away for a number of years has donated his property to a close cousin to utilize for agricultural purposes and whatever else he sees suitable.

In this situation, the ostensible owner is a family member, and if he transfers the property to a third party during that time, the true owner cannot claim his property and claim that the person was not permitted to transfer it. Another scenario is when the property is in the wife’s name but the husband used to handle the finances and other aspects of the property. If the husband sells the property as a result, the wife will be unable to reclaim it.

In Ram Coomar v. MacQueen, the privy council declared that when it comes to transfers by apparent owners, somewhere along that lines that it is a principle of natural equity that where one man allows another to hold himself out as the owner of an estate and a third person buys it for value from the obvious owner believing that he is the real owner, the third person shall not be allowed to recover on a secrete title until he can overthrow that of notice, or something that adds up to constructive that ought to have put him on an inquiry, which, if put on trial, would have led to a discover.

ESSENTIALS

There are essentials that need to be meant to be an ostensible owner of any property. Like the term itself, the word ‘ostensible’ denotes ‘seeming’ or ‘apparent’. An ostensible owner is a person who poses as the one who owns that immovable property but is not the true owner.

1. A person must be the property’s ostensible owner.
2. That person must be such an owner with the genuine owner’s express or implied approval.
3. The one who is transferring must buy the property for consideration from the ostensible owner.
4. The transferee must take reasonable care before accepting the transfer to ensure that the transferor has the authority to make the transition; in other words, it should be done in good faith.

Reasonable care can be defined as the level of care that a reasonable and average person would take. It is his responsibility to check the transferor’s title.

As in the case of Nageshar Prasad v. Raja Pateshri, where the name of the proprietor was incorrectly recorded in the revenue records. The name was written was that of someone else, and the rightful owner had already complained about the mistake. The individual whose name was on the revenue records later sold it to a third party, who took possession of the property without making required investigations, and the rightful owner later objected. The third party is obligated to provide all available documents that may provide more information on the property’s title, which may include police registers, municipal registers, and other documents.

Also, there is a safety net in place for the true owner. As in the case of Mathura v. Ambika, in which the actual owner had disposed of the property to another person and had it registered prior to the ostensible owner’s transfer could even be registered, it was held that the real owner’s transfer would be valid because he has a greater title to the property than the ostensible owner, and that the rights of a third party who had purchased the property from the ostensible owner will not be protected under this section.

Only if the foregoing necessary conditions for the section’s applicability are met does the true owner lose his rights in the property here under the section.

There are steps to register an ostensible owner. Firstly, the documentation pertaining to the property must be examined to see if the transferor’s name appears as the owner.

Second, if the individual whose name appears on the records for the property in issue intends to buy it or not. Thirdly, look into “who has ownership of the site property and who is using it.” If the individual is the owner of the property according to the records and documents in the case at hand, the chances of it being a property of an ostensible owner or him being an ostensible owner are slim. However, “enjoying the property” doesn’t merely mean “being in possession of the property,” but also “selling rights,” “right to enjoy the benefits of the said property,” “right to lease out the stated property and receive compensation,” and “right to enjoy the benefits of the said property,” among other things. In this scenario, the term “enjoyment” has now been given a larger meaning.

Finally, the reason for it being given the ostensible ownership element, i.e. why the true owner has not bought it in his own name.

The transfer must be made without considering some factors:

1. The ostensible owner’s transaction is always for consideration. There should be some sort of exchange. Gratuitous transfers are not covered in this section.
2. When there is a transfer by an ostensible owner, care must be taken. He is unable to give the property away as a gift. As stated in the Indian Contract Act of 1872, consideration is a required component of every contract, and an ostensible owner’s property can only be transferred via contract. In addition, section 4 of the act states that anything that’s not expressly specified in this act must be determined from the basic definitions set forth in the Indian Contract Act of 1872.

THE BURDEN OF PROOF

The transferee bears the burden of proof in demonstrating that the transferor was the ostensible owner and also had permission to sell the property.

He must also demonstrate that he behaved in good conscience and took all reasonable precautions while obtaining possession of the property. It’s because he needs to show that he wasn’t at fault when he took the property and that the burden of proof should be shifted to the rightful owner. To shift his burden of proof, he can show that the transferor did not permit the transferee to know the true facts and went to great lengths to conceal them.

CONCLUSION

The Act’s Section 41 has done a good job of safeguarding the interests of the said innocent third party. However, this section may appear to be prejudiced in favor of the third party, this is only the case if the genuine owner is at fault. No one else can simply claim that he now owns the property and can no longer be evicted. The third party must exercise extreme caution when purchasing the property, and these criteria have been imposed by law to prevent the apparent owner and the third party from abusing this section. In a way, this also protects the genuine owner’s interests.

This article is written by Tingjin Marak, a BA/LLB student at Ajeenkya DY Patil University Pune.

It is stated that accepting an offer is like lighting a match to a barrel of dynamite. For a contract to be successful, a genuine offer must be followed by acceptance of the offer. Let’s look at what defines genuine acceptance in more detail.

Acceptance

“The offer is considered to be accepted when the person to whom the proposition has been made gives his approval thereto,” reads Section 2 (b) of the Indian Contract Act 1872. As a result, the plan becomes a promise once it is authorized. Acceptance happens when the offeree to whom the proposition is made unconditionally accepts the offer, as indicated in the definition. When an offer like this is accepted, it becomes a promise.

Let’s imagine A makes an offer to buy B’s car for Rs. 2 lakhs, and B accepts. This has now become a commitment.

Once a proposal has been approved, it can no longer be amended. If accepted, an offer does not create any legal obligations, but it does create a promise. A promise is also irreversible since it creates legal obligations between parties. It’s possible that an offer will be revoked before it’s accepted. Once acceptance has been conveyed, it cannot be revoked or canceled.

Rules regarding Valid Acceptance

1. Only the person or persons to whom the offer is made and with whom it implies a contracting intention is allowed to accept it:
An offer may only be accepted by the person or persons to whom it is made and with whom it implies a contracting intention; it cannot be accepted by anyone else without the offeror’s permission.

The rule of law reads, “If you plan to create a contract with/1, then B cannot replace himself for A without your agreement.” An offer made to a single person can only be accepted by that individual. Any member of a group of individuals (for example, instructors) can accept an offer that is made to them. Anyone who is aware of the existence of an offer made to the entire world can accept it.

2. Acceptance must be unqualified and unconditional:
To be legally effective, it must be a complete and unqualified acceptance of all the conditions of the offer. If there is even the smallest deviation from the terms of the offer, the acceptance is annulled. A deviating acceptance is considered a counter-offer in the legal sense.

3. Acceptance must be communicated in a common and fair manner unless the proposal specifies how it should be accepted:
If the offeror does not indicate a method of acceptance, acceptance must be expressed in a common and fair manner. The most prevalent modes of communication are the word of mouth, mail, and behavior. An explicit acceptance is one that is expressed in words, either verbally or in writing, or by mail or telegram. When approval is expressed by behavior, it is known as implicit or tacit acceptance.

Implied acceptance can be proven by doing a necessary action, such as locating missing goods for the stated reward, or by accepting a benefit or service, such as a passenger boarding a public bus.

If the offeror specifies a form of acceptance, the acceptance offered in that style is absolutely admissible, even if the mode is funny. As a result, if the offeror specifies lighting a match as a method of acceptance and the offeree does the same, the acceptance is complete and effective.

However, what if the offeree opts for a method other than the one specified? “The proposer may, within a reasonable time after the acceptance is given to him, request that his proposal be accepted in the stated manner, and not otherwise; nevertheless, if he fails to do so, he accepts the (deviated) acceptance,” says Section 7(2).

Reality acceptance is ineffective:
Mental approval or quiet permission without words or activity does not establish legal acceptance, even if the offeror has stated that such a mode of acceptance will suffice. Otherwise, until the offeror is notified, acceptance has no effect.

4. Acknowledgment must be transmitted by the acceptor:
For an acceptance to be valid, it must be communicated to the offeror not just by the offeree, but also by or with the offeree’s authority (or acceptor).

5. Acceptance must be made in a fair amount of time before the offer expires or is revoked:
Because an offer cannot be kept open indefinitely, acceptance must be made within the given time limit, if any. Acceptance must be made within a reasonable time if no time restriction is specified (Shree Jay a Mahal Cooperative Housing Society versus Zenith Chemical Works Pvt. Ltd.).

Before the offer is revoked or expires owing to the offeree’s understanding of the offeror’s death or insanity, acceptance must be provided.

6. Acceptance must happen after the offer is made:
Acceptance must happen after the offer is made. It should come after, not before, the offer. A person was handed shares in a corporation that had not applied for them. He then applied for shares, completely unaware of the previous allocation. Prior to the application, the distribution of shares was deemed to be invalid.

7. Rejected offers may only be accepted if they are renewed:
If an offer has previously been rejected, it cannot be accepted again unless a fresh offer is made (Hyde vs Wrench).

Are There Different Kinds of Contract Acceptance?

Bill acceptances are divided into two categories: general acceptance and qualified acceptance. Absolute acceptance refers to wide approbation that is unqualified and unconditional. Acquiescence that is given without qualification is referred regarded as general acceptance. When someone accepts an order to pay a certain sum in whole and without limitations, this is known as a general acceptance. This is a common type of acceptance unless other payment
arrangements are made.

An acceptance must be wide in order to be legitimate as a general standard. When someone accepts an instrument, they qualify it by attaching a condition to it.

Acceptance can be divided into three categories:

• Acceptance by the Empress
• Acceptance is implied.
• Acceptance on condition

While any of these methods of acceptance is appropriate, signing a formal contract ensures that there is a legally enforceable element in the event of a disagreement. Finally, acceptance involves expressing and affirming one’s agreement to the transaction.

Implied acceptance is defined as acceptance that is indicated indirectly, rather than directly, through the acts of the person to whom an offer is made. An example of implicit acceptance of a bidder’s offer to the auctioneer is the auctioneer striking his hammer three times to signify his approval of a bidder’s offer.

The word “express acceptance” refers to acceptance that is stated orally, in writing, or vocally. For instance, A may write B an email offering his watch for sale, and B could accept the offer.

Qualified Acceptance: Another phrase for conditional acceptance is qualified acceptance. This happens when the person who made the offer tells the person who made the offer that if the terms and conditions alter, or if something happens, he or she will accept the offer. A conditional acceptance is good when you’re not sure how your position will turn out or if there are elements that might modify your existing situation.

This can be used as a counteroffer as well. Before the contract may be made, the initial offeror must accept a counteroffer. It sets expectations for the offer’s acceptance. The most prevalent kinds of conditional acceptance are:

• Qualified to place
• Qualified to amount
• Qualified to time
• Acceptance by some only
• Acceptance for installment payments

This is known as qualified to place when the drawee pays a bill at a certain location alone. It is referred to as qualified to amount if the drawee accepts the exchange and accepts payment for only a portion of what is owed. Qualified to time occurs when the drawee accepts the exchange and pays the bill at a period other than that stipulated in the contract.

When some, but not all, of the drawee’s consent to the transaction, it is referred to as acceptance by some. The bill is accepted for installment payments when the drawee agrees to pay the amount in installments. This must be mentioned explicitly in the contract from the beginning.

The acceptance requirement must be expressed very clearly in the agreement and must be quickly understood. If drawee desires to make a qualifier during acceptance, he or she must do it in such a way that the instrument’s holder knows what was accepted and on the basis of particular criteria.

Written by Muskan Patidar student at Kirit P. Mehta School of law (NMIMS), Mumbai.

CITATION

Civil appeal No. diary No. 32601 of 2018

APELLANT

Ms.  Vineeta Sharma

RESPONDENT

Ms. Rakesh Sharma

DECIDED ON

24^th August 2020

COURT

Supreme court of India

JUDGES

Justice Arun Mishra, Justice S. Abdul Nazeer, justice M.R. Shah

AREA OF LAW

Section 6 of Hindu succession act, 1956

BACKGROUND

Mr Dev dutt Sharma and his wife had 3 sons and a daughter named Rakesh Sharma, Satyendra Sharma and vineeta Sharma respectively. Mr Dev dutt Sharma passed away on 11 December 1999 and one of his three sons who were unmarried passed away on 1^st July 2001. Later, Ms. Vineeta Sharma filed a case against rakesh Sharma, satyendra Sharma and her mother stating her right to receive 1/4^th  share of her father’s property. The respondents claimed that she ceased to become the member of joint family once she got married.

ISSUE

Earlier according to Hindu succession act, 1956 only male members of the family were considered as co- parceners. But later according to the 2005 amendment act (section 6) daughters were also considered as co- parceners since birth and they are also equally liable. But the question raised was as the amendment got implemented on 9^th September 2005, whether it is applicable to the cases if the father got expired before the date of implementation of amendment or it’s important for the father to be alive.

JUDGEMENT

Before this case, several other cases were taken as an account for property succession of daughters. The landmark cases that finally worked as a precedent for the case was:

1. Prakash v. phulwati [1]: in this case the two judge bench consisting justice Anil Dave and Justice A.K Goyal stated that it’s necessary for the father to be alive to pass his property rights to his daughter.
2. Danamma v. Amar[2] : in the case the two judge bench consisting justice A.k sikri and justice Ashok Bhushan stated that even if the father passed away on 2001 ( years before the implementation of       the amendment) still the property can be passed on to his daughter.

Finally after all these judgements, the three judge bench stated that women acquire their right for ancestral property by birth even if the father is alive or not.

RATIO DECIDENDI

• The verdict passed for the case had ended the legal ambiguity regarding the transfer of property rights for women by granting equal rights to acquire ancestral property.
• The judgement had made clear that no one can discriminate citizens on the basis of gender and gender cannot be deemed as an account for granting property rights. It thus strengthens the ideology of article 14 ( right to equality) and article 15 ( right against discrimination)
• It also empowers woman who are economically backward to cease the implication of male authority over them.

CONCLUSION

This case helped to implement the idea of women empowerment by providing equal property rights for both male and female.

END NOTES

1. (2016) 2 SCC 36
2. 2018(4) ADJ406
3. https://indiankanoon.org/doc/67965481/

This case analysis is written by Nourien Nizar studying at Government Law College, Ernakulum

Introduction

Novus actus interveniens is a Latin phrase that, when translated, amounts to ‘new intervening act.’ It is a principle of Tort law. 

Novus actus interveniens, in relation to a tortious action for negligence, can be defined as any intervening act that can separate or break off the legal connection between a defendant’s conduct and the final injury incurred by the plaintiff, thus preventing the defendant from being held legally liable for the plaintiff’s harm. For an act to be considered as Novus actus, it must be reasonably unpredictable. If the second and subsequent act could be apprehended or stemmed from the first act itself, then this principle will not be applicable, and the legal burden will not be waived off the defendant. Attributed to this principle is a general rule of measuring the remoteness of damage. If any outside force (Act of God or intervention by a third party) or the plaintiff himself causes interventions subsequent damage to the injury already caused, then it will amount to the remoteness of damage. 

Case Of Martin V Isbard (1947)

For understanding this concept better, let us consider the case of Martin Vs. Isbard, a 1947 English case. In this case, Martin, the plaintiff, was traveling in a taxi which met with an accident because of the negligence of the driver. The plaintiff had experienced a concussion as a result of this accident and, when taken to the hospital, was told that she suffered a major fracture in her skull. After recovering from the initial shock, although she returned to work, she would occasionally feel dizzy and experience headaches. For this reason, she stopped working and went to Melbourne with her parents. However, after a few weeks, she was told that a review of the X-ray showed that she had no skull fracture. After this, she went under another X-ray examination which again said that she did suffer a skull fracture. But a review of this report also resulted in the finding of an erroneous medical report falsely stating that she suffered from a skull fracture. Before this case went into a trial, the plaintiff had another X-ray done, revealing she never suffered any injury in her skull. It was also determined that the occasional periods of dizziness that she faced were more related to the stress induced from the wrong X-ray reports. Now the question put before the Court was to determine the gravity of responsibility the taxi driver ought to bear. Had he not been negligent in the first place, the accident would not have taken place and resulted in the misleading X-ray reports. The judge drew a conclusion that the anxiety caused to Miss Martin was a result of negligence on the part of the doctors. Thus, the Court opined that the two wrong X-rays were ‘Novus actus interveniens’ or a ‘new intervening act’ which cut off the direct link between the final injury suffered and the initial negligence contributed by the defendant.

Test Of Isolation

The test of isolation is a new method that has gained importance while deciding if the defendant can be made liable for the final injury caused to a plaintiff constituting one or more causes of harm. According to this test, if the relation to the illegal conduct (an omission or commission) which resulted in causing damage to the plaintiff is regarded to have been snapped when it is separated from its repercussions, then the defendant is no longer accountable for any consequences that may follow. When the chain of causation is broken in the eyes of the law, making the former act exhausting itself, the wrongdoer can no longer be held liable for any further upshot. This might be the result of an intervention of a third party or an act of God resulting in the second act of violation.

Exceptions To The Rule Of Novus Actus Interveniens:

The exceptions to the rule of Novus actus interveniens are listed as follows:

1. If the defendant has intentionally undertaken the intervening act in question
2. If the intervening actor cannot be made fully responsible for the outcome
3. If the intervening act was reasonably foreseeable
4. If the intervening acts in question are some involuntary action or a bare reflex

 Relevant Case Laws:

VOSBURG V PUTNEY, 1891 (Defendant made liable even when the injury was not foreseeable.)

In this case, a boy kicked another in the classroom from across the aisle. It turned out that the victim was suffering from an inflamed microbiological infection, which caused him to lose all use of his leg. Undoubtedly no one could have foreseen the severity of the injuries. Despite this, the Wisconsin Supreme court determined that the kicking was illegal because it breached the “order and decorum of the classroom.” Hence, the perpetrator was held entirely responsible for the injuries.

SMITH V LEECH BRAIN & CO, 1962 (Defendant made liable as the initial injury was foreseeable.)

 In the English case of Smith v Leech Brain & Co (1962), molten metal was splashed on an employee. It resulted in a burn on his lips. The tissue which got burned happened to be premalignant. Later, after three years, he died of cancer, which was initially triggered by this injury. The Court held that since the initial damage was foreseeable, the defendant was liable for all the harm.

HABER V WALKER, 1962 (Intervening act in question when combined with the initial wrong does not point towards a mere coincidence.)

In Haber v Walker, the Court arrived at the judgment that a plaintiff cannot be held accountable for a Novus actus interveniens ( a new intervening act) if the chain of causes is broken by a deliberate, human act or an external incident that, which when combined with the wrongful act, is so rare as to be deemed as happenstance.

NADER V URBAN TRANSIT AUTHORITY OF NSW, 1985 (Victim must be considered, including his mental, social, physical, and economic attributes.)

This is an Australian case where the plaintiff, a 10-year-old kid, was struck in the head by a bus stop pole while exiting a slow-moving bus. This injury led him to develop Ganser syndrome, one of the rarest psychological diseases. In response to this, the defendant claimed that the child had developed this illness due to his family’s reaction to the mishap. Judge McHugh, in this case, however, concluded that the plaintiff should be considered with all his weaknesses, beliefs as well as reactions. All of his social, economic, and physical attributes must be considered. Since this accident resulted in a ten-year-old boy reacting to his parent’s apprehension regarding the accident and developing a hysterical condition, the victim must be duly compensated by the defendant.

MAHONEY V KRUSCHICH DEMOLITIONS, 1985(Intervening actor cannot be made fully liable)

The plaintiff, Glogovic, while working on the demolition of a powerhouse for the respondent, had suffered some injuries. When he was being treated by the appellant Mahony due to medical negligence, his injuries were aggravated. The Court held that medical treatment of injuries caused by the defendant’s negligence did not result in Novus actus since it was not inexcusably terrible or utterly outside the confines of what a credible medical practitioner might prescribe.

Conclusion

In conclusion, one can say any act which severs or cuts off the direct link between the defendant and the final injury caused is termed as Novus actus interveniens (a new intervening act). In such a case, the defendant can be made liable only to the extent of the initial negligence caused by him and not for the final injury. For example: If person A suffers an injury on his leg because of B and is then shot by person C on the injured leg, B will only be held liable for the initial negligence and not the gunshot injury.

The article has been written by Debasmita Nandi, a first-year law student of CHRIST (DEEMED TO BE UNIVERSITY), LAVASA.

Latest Posts

• Job opportunity at EXO Edge, Sahibzada Ajit Singh Nagar, Punjab, India: Apply Now!!
• Internship opportunity at Vishwas Advisors, Kalyan, Maharashtra, India: Apply Now!!
• Internship opportunity at Kulfi Collective, Mumbai, Maharashtra, India: Apply Now!
• Job opportunity at The Neotia University, Diamond Harbour, West Bengal, India: Apply Now !!
• Job opportunity at Morgan Stanley, Mumbai, Maharashtra, India: Apply Now!!
• Job opportunity at VISA INTELLIGENCE CONSULTANCY LLP, New Delhi, Delhi, India: Apply Now!!  
• Job opportunity at Amazon Web Services (AWS), Gurugram, Haryana, India: Apply Now!!
• Job opportunity at Stelcore Management Services Private Limited, Mumbai, Maharashtra, India: Apply Now!!
• Job opportunity at Zscaler, Sahibzada Ajit Singh Nagar, Punjab, India: Apply Now!!
• Job opportunity at Irish Expert, Delhi, India: Apply Now!!
• Job opportunity at UnitedLex · Gurgaon, Haryana, India: Apply Now!
• Internship opportunity at Vineforce · Nabha, Punjab, India: Apply Now!!

---

• CLAT-Peeps! (10)
  • Current Affairs (2)
• competitions (132)
• Conferences and Seminars (201)
  • Webinar (1)
• Course and Workshops (107)
• Debates (46)
• Eassy Competitions (69)
• Fellowships & Scholarships (56)
• Guest Blogs (6)
• important (29)
• Internships and Jobs (2,317)
• interviews (8)
• moot court (180)
• Opportuintes (2,731)
  • Job Opportunity (1,191)
• opportunity (2,559)
  • Call for papers (475)
  • Quizes,fests and others (298)
  • Work Opportunity (836)
• Our Blog (1,049)
  • Administrative Law (17)
  • ADR (13)
  • Arms Act (2)
  • Case Analysis (205)
  • Company law (36)
  • Constitutional Law (143)
  • Consumer Protection Act (17)
  • Contract Law (62)
  • CPC (10)
  • Criminal Law (140)
  • Cyber Law (13)
  • Environmental Laws (30)
  • Evidence Act (20)
  • Family Law (12)
  • General (205)
  • International Humanitarian Law (8)
  • International law (23)
  • IPR (10)
  • Jurisprudence (13)
  • labor laws (7)
  • Maritime Laws (1)
  • Partnership Act (2)
  • personal law (33)
  • Taxation (10)
  • Tort (64)
  • Transfer of Property (2)
• Our Services (11)
  • career advice (2)
  • others (6)
• Top Stories (524)
• Uncategorized (720)

Archives

• November 2023 (26)
• October 2023 (1)
• September 2023 (5)
• August 2023 (2)
• July 2023 (25)
• June 2023 (23)
• May 2023 (40)
• April 2023 (136)
• March 2023 (124)
• February 2023 (138)
• January 2023 (61)
• December 2022 (39)
• November 2022 (103)
• October 2022 (178)
• September 2022 (342)
• August 2022 (240)
• July 2022 (273)
• June 2022 (196)
• May 2022 (27)
• April 2022 (99)
• March 2022 (190)
• February 2022 (196)
• January 2022 (193)
• December 2021 (152)
• November 2021 (203)
• October 2021 (189)
• September 2021 (177)
• August 2021 (192)
• July 2021 (393)
• June 2021 (293)
• May 2021 (179)
• April 2021 (61)
• March 2021 (46)
• February 2021 (56)
• January 2021 (63)
• December 2020 (86)
• November 2020 (94)
• October 2020 (146)
• September 2020 (220)
• August 2020 (173)
• July 2020 (165)
• June 2020 (119)
• May 2020 (136)
• April 2020 (7)
• February 2020 (37)
• January 2020 (3)
• November 2019 (1)