Tag: #HighCourtcase

Introduction

A property transfer (whether movable or immovable), such as a gift, cash, real estate, or mortgage, is known as alienation. Hindu law places a stronger emphasis on alienations because, typically, neither the Karta nor any other coparceners have full authority to alienate the joint family property or his interest in the joint family property. The Hindu Succession Act of 1956¹ and the Transfer of Property Act of 1882² both regulate the alienation of coparcenary property under Hindu law. And according to them, though the Karta or the head of the family has the duty to look after the regular expenses of the family and also protect the joint family property, he doesn’t have absolute power over alienation. The power of alienation vested upon Karta is similar in both Dayabhaga and Mitakshara law. According to that, Karta can only alienate property under three exceptional circumstances. 

On the other hand, the court ruled in the case of Kandasami vs. Somakanda³ that the Karta can alienate the property in the Hindu Undivided Family. All family members must provide their approval in cases of this form of estrangement. The only need is that the coparcener must be the major in accordance with the law to which they are subject. After receiving the coparcener’s approval, the property may be alienated.

Grounds of Alienation

According to Vijnaneshwara, a prominent jurist of twelfth-century India, a property of the Hindu Joint Family can be alienated due to three circumstances-

1. Apatkale- It describes a circumstance in which the entire family, or a single member of it, encounters an emergency involving their property. The purpose of this transaction is to combat the threat or make an effort to prevent the catastrophe for which money is required. When it makes reference to the property, it means that the transfer is required for its preservation or protection and that it requires quick action. It should be held that this transaction or alienating is not a mere profitable charity but a way to safeguard properties owned by a joint family.
2. Kutumbarthe- “For the benefit of the Kutumb” is what this phrase signifies. Kutumb alludes to members of the family. As a result, this involves the alienation of a property for a family member or relative’s support. For instance, housing, food, clothing, and education. medical costs, etc.
3. Dharmarthe- It gives relaxation for the purpose of carrying out charitable, pious, and virtuous obligations. Typically for philanthropic and religious reasons.

But it should be held that this thesis of Vijnaneshwara has gone through modifications and severe changes have been performed in it by the Indian Judiciary. It would be mentioned below.

Father’s Power of Alienation

In some circumstances, only the father has the authority to alienate his child, hence a father has greater power than even Karta. Fathers are given unlimited alienation rights under Dayabhaga Law, meaning they are free to sell off any movable or immovable property they choose, whether it is personal property or family heirlooms. Under Dayabhaga School, sons do not automatically acquire a right to property; hence, a father may alienate the property without the sons’ permission. A landmark judgment regarding this situation was given in Ramkoomar vs. Kishenkunkar⁴, where the concerned Court ruled that while it was immoral, a father’s gift of his entire estate to his younger son during the elder’s lifetime was permissible but giving away all of the family’s landed property was not permitted.

While it has long been accepted practice, under Mitakshara Law, that the father had complete discretion over the disposition of his distinct movable property. However, there was contention regarding his several immovable properties. But in the case of Rao Balwant Singh v. Rani Kishor⁵, the Privy Council put an end to the dispute in 1898 by ruling that the father had full alienation authority over his distinct property, both movable and immovable. Later it was held that whether a joint family property or undivided property, the Father can alienate whole property in two cases-

1. Gifts of Love and Affection– The Father has absolute power on sending Gifts of Love and Affection (Jewels, Valuable metal ornaments, Clothing, Cash, part of movable property) to his own wife, daughter, son-in-law or any other close relatives.
   
   But it should be noted that Gifts of Love and Affection of immovable property cannot be made to the son. Such gifts can only be made to daughters, as in Guramma v. Malappa⁶, a gift of immovable property to a daughter made by her father after her marriage was held to be valid.
   
   But sending affectionate tokens through Gifts cannot be done via Will. Because an important concept was established in the case of Subbarami vs. Rammamma⁷ that such gifts cannot be made by a will because as soon as a coparcener passes away, he loses his stake in the joint property, which he cannot afterwards transfer.

2. Alienation for Discharge of His Personal Debts- In order to pay off his prior debts, which the sons are obligated to do religiously because they are not immoral or illegal, the father has the right to alienate the family’s property. If the two criteria below are met, a father may sell off the joint family property to pay off his debts:
   
   • The debt came before.
   • The loan should not be incurred for Avyavaharik, or for immoral or unethical reasons.
     
3. Although taken from an ancient Mitakshara text, the two criteria above were also established in the
   case of Brij Narain vs. Mangla Prasad⁸.

Karta’s Power of Alienation

It is a common belief that the karta has a great power inside a Hindu joint family. However, he is not the sole owner of the property when it comes to property concerns, thus he can only use the power of alienation in particular circumstances. The powers of the Karta under Mitakshara Law and the Dayabhaga Law are comparable. Only three situations— Legal Necessity (Apatkale), Partial Necessity, and Benefit of Estate —permit the alienation of the property by karta. Though with the approval of all adult coparceners present at the time of the alienation, the Karta may, however, alienate the joint family property regardless of any necessity for the law or advantage to the estate.

1. Legal Necessity- Legal need can refer to any action taken to meet a family’s basic necessities during an emergency such as a flood, war, starvation, etc. In contrast to the word purpose, there should be no other sources available to the Karta in order to exercise this option.
   
   Nevertheless, it has been acknowledged by contemporary law that necessity may go beyond that. In Devulapalli Kameswara Sastri vs. Polavarapu Veeracharlu⁹, it was decided that necessity should not be considered in the sense of what is absolutely necessary but rather what would be viewed as proper and reasonable in accordance with the ideals of the joined Hindu family like-
   
   • Monthly expenses of all members of the joint family and additional medical bills.
   • For payment of various Taxes.
   • For paying EMI of debt incurred as a joint Hindu Family.
   • Performance of necessary ceremonies, like- Mundan, Bibah, Sradhs, and Upanyana.
   • For marriage ceremony of male & female coparceners of family.

2. Partial Necessity- According to the Privy Council in the case of Krishandas vs. Nathuram¹⁰, a sale will only be valid where the purchaser acts in good faith, conducts due diligence, and is able to demonstrate that the sale itself is justified by legal necessity in cases where the necessity is only partially met, that is when the money needed to meet the necessity is less than the amount raised by alienation.
   
   For Example- If the Karta of a Joint Hindu Family has collected Rs. 50,000/- through alienation and gives proof that he is required of Rs 40,000/- in good faith that falls under necessity, then the alienation will be valid.

3. Benefit of Estate- The benefit from the estate is often known as “kutumbarthe”. It has been stated that alienation can be carried out to benefit any other family estate or to satisfy the needs of family property. Alienation under this cause is strictly defensive or protective in nature with the dilution of “apatkale”, alienations that an ordinarily prudent man would consider reasonable in the specific set of circumstances are also permitted. The alienations made by the karta for the benefit of the estate are legal and hence not void. This concept was not mentioned in any ancient textbook and was first introduced in the case of Palaniappa vs. Deivasikamony¹¹.

Coparcener’s Power of Alienation

A coparcener has the authority to give up his ownership interest in joint family assets. A coparcener may give his complete undivided interest to another coparcener or coparceners, with or without their approval, or they may renounce it in their mutual interest. Either way, the gift is lawful. Renunciation that includes a requirement to give him maintenance is legal. However, a gift or renunciation of one coparcener’s share in favor of another coparcener or coparceners is invalid. And a coparcener is not allowed to sell or mortgage his undivided interest without the consent of other coparceners of the Joint Family. Even they don’t have the right to gift a part of their undivided interest to their special ones to show a token of affection.

Sole Surviving Coparcener’s Power of Alienation

As long as the lone surviving coparcener does not have an heir, the joint family property becomes separate property when it is transferred into his possession. His only obligation is to provide for the family’s female members (the widows). In that case, he can alienate his interest from the total property. So long as the widow’s part is excluded, he may alienate the other property as his own. However, if another coparcener is present in the wombat at the moment of the estrangement, this is not applicable. However, if the son was born after the transaction, he could not contest the alienation. If a widow adopts a child after her husband’s death, that child will also have the right to challenge the alienation made by the sole surviving coparcener according to the landmark judgment of Bombay High Court in the case of Bhimji vs. Hanumant Rao¹².

Unauthorized Alienation of Property & Burden of Proof

Unauthorized alienation of property refers to the transfer of property without authorization, which makes the transfer invalid. Alienation of property can be developed through will, gifts, or a mortgage, as was previously discussed. Karta works for the welfare of the family since, as we all know, he is the manager of Hindu families. Alienation is described as “any disposal of a portion or the entirety of the joint family property by the father, karta, coparcener, or the sole surviving coparcener by any act or omission, voluntary or involuntary”.

According to the case of Hanoomaprasad vs. Babooee¹³ burden of proof is on the alienee. He has to prove in the court that the alienation made by him was in good faith and it was regulated through either Legal/Partial Necessity or Benefit of Estate. Any unauthorized alienation made by the sole coparcener, Karta or Father is voidable under Hindu Succession Act.

Coparcener’s Right to Challenge such Alienation

If the father, karta, coparcener, or the only remaining coparcener acts outside of their authority and alienates joint property, that alienation can be contested and overturned before it expires. In accordance with Article 126 of the Indian Limitation Act, 1908, a son has 12 years to contest his father’s alienation, and in accordance with Article 144, coparceners have 6 years to contest the alienation caused by karta. Any other coparcener with a stake in the property, from the time he learns of it until the lawsuit is prohibited by time limits, may contest and set aside the alienation if the father, Karta, coparcener, or single surviving coparcener overstepped their authority in making it.

Alienee’s Right & Remedies

The courts have applied various interpretations to Alienee’s right to divide. However, the existence of this privilege is firmly established. The purchaser cannot seek the exact property that was sold to him, according to the Bombay and Madras High Courts. He is limited to requesting the general division of his alienor’s interest. And from the date of purchase until the day that the partition is ruled upon, Alienee is not entitled to any portion of the earnings. The Supreme Court ruled that a person who purchases a coparcener’s share at auction in order to enforce a monetary judgment against him is not entitled to future profits as of the purchase date. In the event that the partition is unaffected, and the property is transferred to the buyer, who then takes possession, the other co-owners have the right to co-own the property with him or to sue him to regain ownership.

Conclusion

From the explanation above, it is clear that a family’s most important and indispensable component is its property. If Karta alienated that property without the other coparcener’s approval, it would frequently result in conflict and inconvenience for the family as a whole. The Karta, who represents the entire family and occupies the Supreme position in the Hindu Undivided Family, is the only manager of the family and serves as its exclusive representative.

Each coparcener is entitled to use the joint property to the fullest extent possible without hindering it or using it in a way that is harmful to the interests of other coparceners. The family business manager, however, should have some privileges in regard to sustaining the entire family business. For the family business to run well, it is vital to devolve some control to him.

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Endnotes:

1. Hindu Succession Act, 1956, Sec. 6, Act no. 30 of 1956
2. Transfer of Property Act, 1882, Act no. 4 of 1882
3. Kandasami Asari vs Somaskanta Ela Nidhi Limited, (1910) 20 MLJ 371
4. (1812) 2 SD 42 (52)
5. (1928) 30 BOMLR 1331
6. 1964 AIR 510, 1964 SCR (4) 497
7. (1920)43 Mad 824
8. (1924) 26 BOMLR 500
9. (1911) ILR 34 Mad 422
10. 1927 P.C. 37
11. 1917 P.C. 68.
12. AIR 1950 Boom. 271
13. Supra Note 10

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

S.no	Contents
1.	Introduction
2.	Types of Cybercrime
3.	Financial Losses & Economic Impact
4.	Threat Towards ‘Digital India’
5.	Business Disruption
6.	Data Privacy is a Myth
7.	Effects of Cybercrime on Society
8.	How Laws Evolved around Cybercrimes in India
9.	Conclusion

Introduction

India has seen a substantial increase in cybercrime recently, posing a growing threat to both culture and economy. Cybercriminals have discovered new ways to take advantage of flaws and carry out their nefarious activities thanks to growing digitization and broad internet usage. Online harassment and cyberstalking are major issues that are becoming increasingly prevalent in today’s digital age. With the widespread use of the internet, type of abuse can have many forms, such as bullying, hate speech, stalking, and revenge porn, and it can cause devastating effects on someone’s life. The internet’s anonymity has made it easier for perpetrators to engage in abusive behaviour and law enforcement often struggles to keep up with the rapidly evolving landscape of online crime.

Cybercrime also puts India’s ambitious digital transformation projects in danger. Fear of cyberattacks may prevent individuals and companies from adopting digital technology, halting development and obstructing the potential advantages of a digital economy. Cybercrime also affects data security and violates privacy, with serious social repercussions. People become more susceptible to identity theft, fraud, and harassment, which undermines faith in online platforms and has an adverse effect on mental health. Due to the cross-border nature of cybercrime, it is challenging to identify and capture offenders, necessitating ongoing tool and skill enhancements for efficient investigations. In addition, the legal system encounters challenges when dealing with cybercrime matters, such as delays and the requirement for specialised knowledge, which impedes the administration of justice.

Types of Cybercrime

It is important to recognize that these crimes are not merely harmless pranks, but heinous criminal acts that have devastating consequences.

1. Online bullying- This involves the use of electronic communication to harass or intimidate someone.
2. Doxxing- This is the practice of publishing personal information, such as a person’s address or phone number, with the intent of causing harm.
3. Revenge porn- This involves the distribution of sexually explicit images or videos without the victim’s consent.
4. Trolling- This involves deliberately posting inflammatory or offensive comments online to provoke a reaction.
5. Cyberstalking- This is the persistent and unwanted pursuit or harassment of a person through electronic communication, such as emails, texts, and social media messages.
6. Impersonation- This involves creating a fake social media account or website to impersonate someone else.
7. Hacking- This involves gaining unauthorized access to a person’s computer or online accounts with the intent of stealing personal information or causing harm.
8. Salami Attack- Attackers or hackers frequently utilise the salami attack technique in order to perpetrate financial crimes online. One at a time, cybercriminals take resources or money from a system’s bank accounts. This attack happens when a number of weaker attacks combine to form a more powerful attack.
9. Script Kiddies- Script kiddie is a derogative term that computer hackers coined to refer to immature, but often just as dangerous, exploiters of internet security weaknesses.
10.  Cyber Laundering- Cyber laundering is when criminals use the internet to establish anonymity or non-traceability for laundering money. It happens in two ways- Instrumental Digital Laundering and Integral Digital Laundering.

Financial Losses & Economic Impact

This article would explore the vicious impact of cybercrime on the Indian economy, highlighting the challenges it poses and the measures required to address this growing concern.

• Intellectual Property Theft- The unauthorised use, exploitation, or outright theft of creative works, ideas, trade secrets, and confidential information is known as intellectual property (IP) theft and is otherwise protected by intellectual property laws. There are many different types of IP theft, such as trademark infringement, copyright infringement, and patent infringement. Cyber espionage poses a threat to Indian firms, particularly those operating in the technology and innovation industries. This reduces the value of research, innovation, and competitive advantage, diminishing these industries’ capacity for economic growth.

• Online Financial Frauds- Financial Fraud happens when someone deceives you and takes your money or any other kind of assets through illegal means. And when the usurper uses the cyberspace or Internet to conduct its fraudulent measures, it is called online fraud. Cybercriminals target people and steal money from their bank accounts using a variety of strategies, including phishing, identity theft, and credit card fraud. Individuals directly lose money as a result of these fraudulent operations, which undermines their trust in online transactions and electronic payment systems.

• Financial Sector Vulnerabilities- Due to the possibility of significant financial gain, the financial industry is a top target for cybercriminals. Attacks on financial institutions, such as banks, payment gateways, and stock exchanges, cause financial losses as well as a decline in public confidence in the banking system. This can undermine economic stability and hinder the flow of investments. These monetary losses have a huge cumulative impact. In India, the cost of cybercrime was predicted to reach over $4 billion per year in 2019 by the Indian Council for Research on International Economic Relations (ICRIER). This sum accounts for both the direct financial losses and the indirect expenses related to reducing the effects of cyberattacks.

• Ransomware Attack- In a ransomware attack, the user’s data, folders, or entire device is taken over by the attacker until a ‘ransom’ cost is paid. It is a form of malware from the crypto virology family that threatens to leak the victim’s private information or completely bar access to it if a ransom is not paid. More sophisticated malware employs a method termed cryptoviral extortion, whereas other simple ransomware may just lock the system without deleting any files.  By using phishing attacks or malicious websites to infect a PC or a network, ransomware attacks take advantage of unpatched security flaws. Though just simple ransom paying doesn’t ensure data recovery, and furthermore, the cost of data restoration can lead to more financial burdens.

• Data Breaches- Sensitive information about people and businesses has been compromised in a number of high-profile data breaches that have occurred in India. These violations have long-term effects in addition to acute pecuniary ones. Businesses may experience negative effects on their income and growth prospects due to legal repercussions, reputational harm, and a loss of customer trust.

Threat Towards ‘Digital India’

India has placed a lot of emphasis on digital transformation programmes to use technology for governance, e-commerce, online services, and financial inclusion. However, the advancement and effectiveness of these transformational endeavours are seriously threatened by cybercrime.

• Erosion of Consumer Confidence- Consumer trust in digital platforms, e-commerce, and online services is damaged by cyberattacks. Data breaches, financial fraud, and identity theft occur often, which raises questions about the security of personal and financial data. Consumer behaviour is impacted by the decline in trust, and people are less willing to deal online and divulge personal information. The advantages of digital transformation will not be fully realised without a strong digital ecosystem based on trust.
  
• Compliance & Regulatory Challenges- Regulation and legal frameworks that handle growing threats and safeguard digital transformation projects are needed to combat cybercrime. Effective cybersecurity legislation, data protection laws, and privacy standards must be developed and put into place. Regulating bodies face difficulties keeping up with the rapid growth of cyber threats and establishing a safe and favourable environment for digital transformation. This entails making substantial investments in cybersecurity defences, encouraging digital literacy and awareness, establishing public-private partnerships, and creating a cybersecurity culture within businesses.
  
• Service Disruption- Critical digital services may be interfered with by cyberattacks, putting users through inconvenience and irritation. For instance, a successful DDoS attack on online service platforms or government websites can make them inaccessible, preventing citizens from using vital services. Such interruptions jeopardise the dependability and accessibility of digital platforms, impeding the advancement of initiatives for digital transformation.

Business Disruption

The rise of cybercrimes in India can affect businesses and corporate institutes terribly. They can suffer from financial loss, software disruption, phishing and others.

• Financial Implications- Costs associated with recovering from a cyber-attack are substantial. To restore systems and secure data, businesses must spend money on incident response, forensics, and remediation activities. Furthermore, failure to appropriately protect customer data may have legal and regulatory repercussions, such as fines and penalties. Small and medium-sized businesses (SMEs), who may lack the means and knowledge to adequately address cyber risks, may find it particularly difficult to deal with these financial pressures.
• Business Resilience- The importance of solid business continuity and disaster recovery planning is highlighted by cyberattacks. Businesses must spend money on preventative measures to safeguard their vital infrastructure, create secure data backups, and establish incident response procedures. If these precautions are not taken, cyberattacks will continue to interrupt business operations and have a greater overall impact.
• Downtime and Loss of Productivity- Cyberattacks that cause considerable downtime to corporate activities include distributed denial-of-service (DDoS) attacks and ransomware outbreaks. This downtime results in a loss of productivity and money. Even a small interruption can have a negative impact on supply chains, customer services, and overall operational effectiveness for firms that rely significantly on technology.

Data Privacy is a Myth

To commit, identity, theft and financial fraud, cyber criminals target personal data such as Adhaar or PAN numbers, bank account information, and credit card information. Various illegal activities, such as impersonation, loan fraud, and unauthorised financial transactions, can be committed using stolen identities. Individuals suffer financial losses as a result of these instances, which also reduce confidence in online services and transactions. Privacy and data protection laws are essential for protecting people’s personal information and holding companies accountable. However, regulatory and compliance structures are challenged by cybercrime. Cross-border operations are frequently involved in data breaches, making it challenging to identify and apprehend hackers. To properly address these issues, regulatory frameworks must be strengthened, data privacy laws must be improved, and international cooperation must be encouraged. Businesses in India run the danger of having their proprietary data, trade secrets, and consumer information compromised by data breaches. These hacks may be the result of business espionage to acquire a competitive edge or by hackers looking to make money by selling the stolen data. Financial losses, reputational harm, and a decline in customer trust are all effects. Individuals and companies need to prioritise cybersecurity measures in order to reduce privacy and data security breaches. Implementing robust authentication systems, encryption, and secure data storage procedures are all part of this. Individuals can be equipped to secure their personal information and recognise potential risks by encouraging digital literacy and awareness among them. Businesses should make substantial investments in cybersecurity infrastructure, carry out frequent security assessments, and follow data privacy laws.

Effects of Cybercrime on Society

Our web presence is constantly growing. Whether we buy food in-store or clothes online, every transaction leaves a digital trail that cybercriminals are always trying to exploit. Globally, there are now more cybercrimes due to increased internet usage. According to a National Crime Records Bureau of India report, from 2018 to 2020, there was an 84% increase in cybercrimes in India. Cybercrime affects both small businesses and huge organisations. The numerous negative repercussions of cybercrimes on society are explained in this article.

• Effects of Cybercrime on Infrastructure- Cyberterrorism is another serious danger to society. Millions of lives are at risk when cyberterrorists breach infrastructure-controlling systems like air traffic control. The risk of cyberterrorism increases with a country’s level of technological development. Healthcare websites are a target for cybercriminals. Sensitive information about patients and healthcare workers may be exposed. These online crimes can include denial-of-service attacks and malware. Cyberattacks on the healthcare sector could result in more than just monetary losses; they might also endanger the lives of patients.
• Effects of cybercrime on Businesses– Assume that when a customer purchases something online, an e-commerce company records their credit card information. Millions of people do business with this enormous company. Let’s imagine that at least 70% of their consumers use debit cards, credit cards, UPIs, digital wallets, etc. to make purchases. This indicates that the company has amassed a sizable online customer database. Hackers can gain access to internal systems if the organisation does not take the necessary precautions to secure and encrypt the sensitive financial information of its clients. Customers’ card information can be accessed, followed back to their bank accounts, and money was stolen. Many people may suffer financial losses as a result, which will produce a huge commotion in society.
• Effects on Individuals- Cyberbullying is the practice of using bogus information leak threats to extort online users. The effects of cybercrime extend beyond monetary damage, much like attacks on healthcare facilities. Victims may experience mental health issues like anxiety and depression, which can cause suicidal thoughts. Not only have our phones become smarter as a result of digitization. Smart homes are now possible thanks to artificial intelligence (AI) and the Internet of things (IoT), where you can turn on any device with a voice command. Your modern smart TV enables you to sign up for a variety of streaming services, but in the absence of a reliable security solution, it exposes your payment information to hacking.

How Laws Evolved around Cybercrimes in India

At first, there were no special provisions for cybercrimes in India. The Indian Judiciary added various aspects of cybercrimes in IPC through some landmark judgments like-

1. State of Tamil Nadu v. Suhas Katti^[1]: In this case, the Supreme Court held that the offense of hacking under Section 66 of the IT Act requires proof of mens rea or criminal intent.
2. Shreya Singhal v. Union of India^[2]: In this case, the Supreme Court struck down Section 66A of the IT Act, which criminalized the sending of offensive messages through communication services, as it violated the right to freedom of speech and expression.
3. K. Srinivas v. State of Karnataka: In this case, the Supreme Court held that the offense of cyberstalking under Section 354D of the IPC includes online stalking and harassment.
4. Sabu Mathew George v. Union of India^[3]: In this case, the Supreme Court held that the offense of publishing or transmitting obscene material in electronic form under Section 67 of the IT Act requires the intention to arouse sexual desire.

Also in,

1. Anvar P.V. v. P.K. Basheer^[4], the Supreme Court of India observed that the increase in cybercrime requires formulating new laws and strengthening existing ones to prevent and prosecute such crimes. The court also emphasized the need for awareness and education programs to inform citizens about the risks of cybercrime and how to protect themselves.
2. Sharat Babu Digumarti v. Government of NCT of Delhi^[5], the Delhi High Court held that the prevention of cybercrime requires the development of technological solutions and the cooperation of law enforcement agencies and internet service providers.
3. K.M. Shareef v. State of Kerala, the Kerala High Court emphasized the need for strict punishment for cybercrime offenders to deter others from committing such crimes.

Through various Case Laws, the accountability for cybercrimes expanded-

1. State of Karnataka v. Sri Raghavendra S. Navalgund: In this case, the accused was found guilty of unauthorized access to a computer system and stealing confidential data. The court held that the offense of hacking under Section 66 of the IT Act, 2000 requires proof of criminal intent and dishonesty.
2. Avnish Bajaj v. State: In this case, the founder of a popular online marketplace was arrested for hosting objectionable content on his website. The court held that the intermediary protection under Section 79 of the IT Act, 2000 can be availed of only if the intermediary takes reasonable steps to remove or disable access to the objectionable content.
3. Sanjeev Mishra v. State of Uttar Pradesh: In this case, the accused was found guilty of creating a fake social media profile to defame a woman. The court held that the offense of defamation under Section 499 of the IPC also applies to online statements.
4. Ramkumar v. State of Tamil Nadu: In this case, the accused was found guilty of using a fake identity to stalk and harass a woman online. The court held that the offense of stalking under Section 354D of the IPC includes online stalking and harassment.

Conclusion

In conclusion, the Indian economy and society are significantly impacted by cybercrime. In terms of financial losses, business interruptions, dangers to digital transformation, breaches of privacy and data security, as well as difficulties with law enforcement and justice, it presents considerable hurdles. These effects have wide-ranging repercussions for people, corporations, and society at large. In addition to causing financial losses and identity theft, privacy and data security breaches also erode user confidence in online services, which has an effect on the entire digital ecosystem. Investigation, prosecution, and deterrence of cybercriminal activity are hampered by difficulties in law enforcement and justice, including jurisdictional complications, cybercriminals’ anonymity, and deficiencies in technical expertise.

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Endnotes:

1. State of Tamil Nadu v. Suhas Katti, C No. 4680 of 2004
2. Shreya Singhal v. Union of India, AIR 2015 SC 1523; Writ Petition (Criminal) No. 167 OF 2012
3. Sabu Mathew George vs Union Of India And Ors., (2018) 3 SCC 229
4. Anvar P.V. v. P.K. Basheer, 2014 10 SCC 473
5. Sharat Babu Digumarti v. Govt. of NCT of Delhi, 2016 SCC OnLine SC 1464

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

Case Number

158 Ind Cas 554

Equivalent Citation

(1935) 37 BOMLR 461

Bench

The Bombay High Court

Decided On

12.03.1935

Relevant Act / Section

• The Indian Contract Act, 1872
• The Insurance Act, 1938

Brief Facts and Procedural History

Introduction

This legal case centres around a minor named Madanlal Sonulal, who initiated legal proceedings against The Great American Insurance Co. Ltd. for failing to fulfil a contractual promise. The agreement was made between the minor’s guardian and the insurance company and was deemed valid. Madanlal was the only surviving son of a joint Hindu family that operated a business in Devalgaum. The family had taken out a fire insurance policy with the defendant company to cover their cotton bales. However, when the cotton bales were destroyed in a fire, the plaintiff sued the defendant company for the recovery of their loss. The defendant company, which was incorporated in New York, USA, was conducting business in Bombay, India. To represent him in the case, Madanlal was aided by his next friend, Goverdhandas Mohanlal, who was the husband of the plaintiff’s sister and with whom the plaintiff was living.

The case raises several legal issues, including the enforceability of contracts entered into by minors, the obligations of an insurance company under a fire insurance policy, and the jurisdiction of foreign companies operating in India. The court had to determine whether the contract was binding on the minor, whether the insurance company had fulfilled its obligations, and whether the court had jurisdiction to hear the case. The case has significant implications for Indian contract law, particularly in relation to minors and the obligations of insurance companies. Ultimately, the court’s ruling would have a profound impact on the rights of Indian citizens in similar legal disputes.

Facts

This is an appeal case regarding a point of law arising from Mr Justice Kania’s decision. The plaintiff, Madanlal Sonulal, is represented by Goverdhandas Mohanlal, his next friend, and has filed a lawsuit against The Great American Insurance Co., Ltd. This company is based in New York, USA, but operates in Bombay at Apollo Street within the Fort of Bombay. According to the lawsuit, the plaintiff is the only surviving coparcener of a joint Hindu family that carries on a joint family business in Devalgaum under the name Surajmal Sonulal. The plaintiff lives with his sister’s husband, Goverdhandas Mohanlal, who oversees the firm’s operations. The plaintiff had effected an insurance policy against fire with the defendant company on certain cotton bales Nevertheless, at the precise moment when the ultimate insurance was granted to the plaintiff’s company, the bales were set on fire, prompting the plaintiff to file a lawsuit seeking compensation for the resulting loss through the insurance policy. The defence raised in the written statement is that there was collusion between the agent of the defendant company and the persons who affected the insurance and that the insurance was affected after the fire. The defendants did not plead that the plaintiff was a minor and that the insurance policy was void. However, during the proceedings, the defendant’s counsel drew the attention of the learned Judge to the fact that the plaintiff was a minor and invited the Court to raise an issue as to whether the contract was void on the ground of a minority of the plaintiff. The learned Judge raised such an issue, but at the trial, he came to the conclusion that it was not necessary to answer the issue since the minority had not been pleaded.

The defendants have appealed the judgment of the learned Judge. They have not challenged the findings of fact. However, they contend that the insurance policy is void because the plaintiff is a minor, relying on the well-known decision of the Privy Council in Mohori Bibee v. Dhurmodas Ghose^[1]. The Privy Council held that any contract by a minor is wholly void under the Indian Contract Act since the Act requires that parties to a contract should be persons competent to contract, and if one of the parties is a minor, he is not competent to contract, and therefore, no contract results.

The learned Judge had found that the contract was valid and negatived the case of fraud and collusion set up by the defendant company, and gave judgment for the plaintiff. The only answer raised by the defendants is that the insurance is void because the plaintiff is a minor. This contention is alarming since it means that the property of minors cannot be insured 

In numerous joint family enterprises, minors inherit ownership rights, and typically an adult member of the family manages the business under the minor’s name. However, if this family member is unable to secure insurance on behalf of the minor, it can create a highly precarious situation. Nonetheless, the evidence indicates that the agreement was actually established by Goverdhandas, who acted as a representative through his agent Trimbaksha. In other words, the minor who entered into the contract did so through the agent Trimbaksha, who was serving as the minor’s guardian. The Court need not delve into the principles of the previous cases since the answer to the defendants’ contention is a simple one. The contract was made by the guardian of the minor, and not by the minor himself. Thus, the insurance policy is not void.

Before this case, in Mohori Bibee and Ors. Vs. Dharmodas Gosh (1903), the Privy Council had held that a contract by a minor is void-ab-initio. Yet, the Privy Council ruled in Sri Kakulam Subrahmanyam Vs. Kurra Subba Rao (1948)^[2] that an agreement made by a guardian on behalf of a minor for their advantage is considered legally binding. In Suraj Narain Dube v. Sukhu Aheer and Anr (1928)^[3], the Allahabad High Court held that the old consideration by the minor is not valid consideration for a fresh contract. In the case of Kunwarlal Daryavsingh vs Surajmal Makhanlal And Ors. (1963)^[4], the Madhya Pradesh High Court held that a minor is liable to pay rent for the property given to him on rent due to necessities for living and continuing study.

The case of General American Insurance Co v/s Madanlal Sonulal^[5] thus stands in line with the legal precedents established by the above cases, where the validity of a contract made on behalf of a minor or involving a minor was challenged and resolved.

Issues Of The Case

• Validity of the insurance made by the minor: An important matter to be addressed in this case pertains to the validity of the insurance policy made by the minor. As the minor is not legally competent to enter into a contract, the enforceability of the policy is uncertain. Thus, the court must decide whether the policy is binding or whether it should be rendered void on account of the minor’s legal incapacity.
• Liability of the insurance company to pay losses under the policy: A second matter for the court to consider is whether the insurance company is responsible for covering the losses under the policy. In the event that the policy is deemed valid, the court must then decide whether the insurance company is legally required to fulfil the terms and conditions outlined in the contract. In making this determination, the court may need to evaluate various factors such as the nature of the loss, the degree of damage incurred, as well as any provisions or restrictions included in the policy.

The case of Madanlal Sonulal v. The Great American Insurance Co. Ltd. dealt with several legal issues, including:

1. Whether a policy of insurance is void if entered into on behalf of a minor by an adult member of their family.
2. Whether the defendant could raise the defence that the contract was void on the ground of the minority of the plaintiff, citing the well-known decision of the Privy Council in Mohori Bibee v. Dhurmodas Ghose.
3. Whether the contract was actually made by the minor’s guardian acting through an agent, or whether it was made directly by an adult member of the minor’s family.
4. Whether the defendant could use technical defences to policies, especially in cases involving minors and joint family businesses.
5. Whether the law strikes an appropriate balance between protecting the rights of minors and ensuring the smooth functioning of businesses and transactions involving minors.

Decision Of The Court

In the case at hand, Defendant had raised a claim in their written statement that there was collusion between Plaintiff and the agent of Defendant’s company. According to Defendant, the insurance came into effect after the occurrence of the fire, and therefore, they were not liable for the damages. The Plaintiff’s minority was not pleaded, and as a result, the learned judge concluded that since the issue of the minority was not raised, it was not necessary to address it. The judge further held that the insurance was valid and ruled in favour of the Plaintiff in the case of collusion and fraud.

However, Defendant appealed this decision on the grounds that Plaintiff was a minor at the time the insurance was taken out, and therefore, the insurance should be considered void ab initio. The court analyzed the circumstances surrounding the insurance policy and found that it had been entered into by Goverdhandas on behalf of the minor through the agent Trimbaksha with Puranmal on behalf of the Defendant’s company. The court further noted that Puranmal had knowledge of the Plaintiff’s minority, which made the Defendant’s company aware of the Plaintiff’s status as a minor.

The court then considered whether Goverdhandas could be considered a guardian within the meaning of the relevant Act. The Act defines a guardian as a person who has the care of the person of a minor or of their property, or both. In this case, the insurance was made for the benefit of the minor and their property, and Goverdhandas had acted on behalf of the minor in entering into the insurance agreement. Therefore, the court held that the insurance was valid and dismissed the Defendant’s appeal with costs.

In light of the court’s decision, the parties agreed that the insurance company would pay Rs. 7000 to the Plaintiff. This decision reflects the court’s careful consideration of the legal issues at play, including the definition of a guardian under the relevant Act and the circumstances surrounding the insurance policy in question.

Conclusion

The case of Madanlal Sonulal v. The Great American Insurance Co. Ltd. serves as a reminder of the importance of understanding the legal implications of contracts entered into on behalf of minors and the role of guardians in such transactions. In this case, the defendant raised the defence that the contract was void on the grounds of the plaintiff’s minority, citing the decision of the Privy Council in Mohori Bibee v. Dhurmodas Ghose (1903).

However, the court ultimately ruled that the contract was not made by the minor but by Goverdhandas, acting through his agent Trimbaksha. Thus, it was the person acting as the guardian for the minor who entered into the contract through the agent. This ruling underscores the importance of understanding who the contracting parties are and whether the person entering into the contract has the legal authority to do so on behalf of the minor.

Furthermore, this case highlights the need for insurance companies to carefully consider technical defences to policies, especially in cases involving minors and joint family businesses. Insurance companies must be diligent in their review of the policy and ensure that the person who enters into the contract on behalf of the minor has the legal authority to do so.

In conclusion, while the law seeks to protect minors from entering into contracts that may be detrimental to their interests, it is essential to balance the need to protect their rights with the smooth functioning of businesses and transactions involving minors. It is important to take into account the role of guardians in such transactions and to ensure that all parties understand the legal implications of the contract before entering into it. Overall, this case serves as a valuable reminder to all parties involved in contractual relationships to be aware of the legal implications of their actions and to seek legal advice where necessary.

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Endnotes:

1. Mohori Bibee v. Dhurmodas Ghose, (1903) 30 Cal. 539 (India).
2. Sri Kakulam Subrahmanyam v. Kurra Subba Rao, AIR 1948 Mad 207 (India).
3. Suraj Narain Dube v. Sukhu Aheer and Anr, AIR 1929 All 210 (India).
4. Kunwarlal Daryavsingh v. Surajmal Makhanlal and Ors., AIR 1964 SC 193 (India).
5. Madanlal Sonulal v. The Great American Insurance Co. Ltd., AIR 1962 SC 439 (India).

This case is analysed by Sohini Chakraborty, a first-year law student at RGNUL Patiala.

RELATED POST: When Age Matters: Examining the Implications of Minors Entering into Contracts

-Report by Tannu Dahiya

Bombay High Court while hearing the petition on 27th February 2023 in the case Sandeep Arjun Kudale v. State of Maharashtra directed the police to carefully look into the matter and must find whether an offence has been made or not before arresting a person. 

Facts

The facts of the case are as follows:

In Writ petition no. 21880 of 2022

The complainant is a resident of Kothrud, Pune. One fine day while browsing on Twitter, he came across a video which was uploaded by the petitioner on his account wherein he was seen standing in front of the bungalow of Mr Chandrakant Patil, Minister of Higher and Technical Education and Cabinet Minister, Maharashtra State and Palak Mantri (Guardian Minister), making objectionable remark against him which has created disharmony in the communities and has provoked the sentiments of people belonging to Dr. Ambedkar and Phule’s community.Hence he registered an FIR against him alleging offences punishable under Sections 153A(1)(a) and 153A(1)(b) of the IPC, on 11.12.2022.

In the 2nd writ petition no. 21886 of 2022

Here the complainant is a resident of Wajre, Pune. He is an active social worker of the BJP. He mentioned that Mr. Chandrakant Patil mentioned about Dr. Ambedkar and Mahatma Phule in his speech which was misinterpreted by the petitioner.It is alleged that the petitioner by uploading the video had created an negative opinion of the said Minister and had also promoted enmity among the different groups in society. 

Petitioner’s contentions

The petitioner seeks to quash both the FIR against him. 

Mr Desai learned counsel for the petitioner submits that no offence as alleged has been disclosed against the petitioner in both the FIRs. The FIR was made with a political motive and the sole intention was to harass the petitioner who is also a member of the Congress Party. He was also arrested and kept in custody for two days without any justification. He was falsely framed in this case as he questioned one of the sitting cabinet members of the state. By lodging, this complaint his fundamental right to freedom of speech and expression is clearly violated. Hence the learned counsel pleads that both FIRs should be quashed and set aside. He also relied on the judgements made in Manzar Sayeed Khan v. State of Maharashtra & AnrBalwant Singh & Anr. v. State of Punjab, and Bilal Ahmed Kaloo v. State of Andhra Pradesh. 

Respondent’s contentions

Dr Saraf learned Advocate General opposed the petition claiming that the sections have been rightly invoked by the police. He submits that the video posted by the petitioner has created an atmosphere of enmity between different groups in society. He also argues that the Police were correct in every manner to register the FIRs as it is their duty to maintain public peace and tranquillity. 

Judgement

Since the issues involved in both the writ petitions are the same, they are heard together. The court made observations regarding different cases. In the Manzar Sayeed Khan case the Apex court held that it was not only the words of the book which should be for provoking the charge. It is the language of the book which decides its intention. 

In Balwant singh case, held that the appellants have committed an offence under Sections 124A and 153A of the IPC, for raising anti-national slogans after Indra Gandhi’s assassination.  In this case, the Court had accepted that mens rea is an essential ingredient of the offence

under Section 153-A and the spoken or written words must have an intention of creating public disorder for disturbance of law and order or affect public “tranquillity”, in order to commit an offence. Having considered the provision of law, the court held that no offence has been committed in this case and the FIRs are quashed and set aside. 

The reasons stated for this are that the petitioner in the video can be seen just commenting on the speech of the Minister which is clearly his opinion and he has the right to freedom of speech and expression as guaranteed under the Constitution. There is clearly no intention of the petitioner to create public disharmony and disturb the public “tranquillity”. The court asked the police to apply their mind before arresting a person as arrest makes a serious impact on the person as well his family’s reputation and mental health. 

The law cannot be used as a tool to harass people and stop them from expressing their views and raising their voices which the Constitution guarantees them. Hence the petitions are disposed of accordingly. The court also directed the state Government to pay Rs25000/- for the unjustified arrest made within four weeks of the order. 

Citation: C. W. P no. 21880 of 2022
               C. W. P no. 21886 of 2022

Case Number

CRL.A. 157/2013

Equivalent Citation

247 (2018) DLT 31

Bench

Justice S Muralidhar, Justice IS Mehta 

Decided On

November 30, 2017

Relevant Act/Section

• Code of Criminal Procedure, 1973
• The Indian Electricity Act, 1910
• The Indian Penal code
• The Companies Act, 1956

Brief Facts and Procedural History

An exhaustive judgment given on September 15, 2016, allowed the allure. Notwithstanding, on that date, the Court gave a different choice featuring three worries that emerged in a bigger setting and selected Prof. (Dr.) G.S. Bajpai, Professor of Criminology and Criminal Justice and Registrar, National Law University, Delhi, as amicus curiae to give guidance.

Issues before the Court

• Is the substantive law and procedure relating to the default in payment of a fine?
• Whether the existing law on suspension of sentence under Section 389 CrPC?
• Whether there is any provision that may enable the Court to suspend the order of conviction as normally what is suspended is the execution of the sentence?

Decision of the Court:

The Supreme Court communicated in Palaniappa Gounder v. State of Tamil Nadu¹ that “the fine discipline ought not to be pointlessly lavish”.

“However, there is the capacity to integrate a sentence of death or life imprisonment with a sentence of fine,” it was added. “That power should be polished with caution, considering that the life sentence is an outrageous discipline to force, and adding a fine to that grave discipline is not completely resolved to fill any accommodating need.”.”

The Supreme Court reaffirmed on account of Shantilal v. the State of M.P. that there was a total abuse of the arrangement of frameworks in Sections 63 to 70 IPC, causing legal to notice the instance of Shahejadkhan Mahebubkhan Pathan v. the State of Gujarat, where the Supreme Court totally abused the arrangement of frameworks in Sections 63 to 70 IPC.

Nonetheless, detainment for non-installment of fines is in another equilibrium. In the place where such a sentence is implemented, an individual is supposed to be detained in light of the fact that the person can’t pay the fine or won’t pay the fine. We are of the assessment that it is the occupant of the Court to keep an assessment of the case, the conditions under which it is held, the area of the case, the litigant, and other significant contemplations, for instance, the monetary conditions of the respondent in regard of and how much the offense prior to requesting that the culprit endure detainment when the individual in question is fined. The arrangements of Sections 63 to 70 of the IPC specify that the punishment rate ought not to be brutal or nonsensical. We additionally stress that in the case of a basic term of detainment, outlandish fines ought not to be forced by some other means than uncommon offenses. “

Clearly, no preparation is honored with use and purified in time that can’t be permitted to win in a circumstance where it attempts to cause disgrace. Each activity of the Court should be trailed by its governmental policy regarding minorities in society because of authentic worries about uniformity. Preparing not to give bail to an individual condemned to life detainment was going on in the High Courts and in this Court on the premise that assuming an individual is considered fit for preliminary and condemned to life detainment, the person ought not to be delivered. , as long as his endless sentence can be saved, yet the fundamental reason for this preparing was that the enticement of such an individual would be disposed of throughout some undefined time frame, so it was expected that he, at last, appeared to be dependable, he would have no need to endlessly remain in jail. The thought of this preparation may not have any significant bearing in the event that the Court isn’t in that frame of mind of interest for five or six years. Without a doubt, it would be a wrongdoing to compare and save an individual from jail for a time of five or six years for wrongdoing that at last seems to have not been carried out. When could the Court at any point pay him for his apparently outrageous captures? It would be fair regardless for the Court to tell the person: “We have admitted your enchantment as we suspect you are at legitimate fault for your appearance, yet tragically we have not had the potential chance to hear your temptation for a long time and, subsequently, up to this point. We hear your enticement, you ought to remain in jail, regardless of the way that you are straightforward? “the adjudicator could never have been overwhelmed by regret while eliminating such an individual in the wake of hearing the enticement? Could it not be an assault on his feeling of equity? in the past it ought to be reconsidered for quite a while as this Court isn’t in that frame of mind of hearing the temptation of the denounced as soon as possible, the Court ought to, except if there is valid justification to make a move regardless, delivering the indicted individual in situations where exceptional leave is taken into account the respondent to apply for conviction and sentence. “

Section 389 (1) states that in the repercussions of any allure against a respondent, the Court of Appeal may because it must be recorded as a held duplicate, demand that the sentence or allure be suspended in like manner, guaranteeing that he had the power, to be delivered on bail, or on his bond. This proviso acquaints the non-select power with suspending the condemning and award bail and notwithstanding suspending the activity of the basic allure.

This issue was completely inspected by a three-judge bench of this Court in Rama Narang v. Ramesh Narang and Ors.²

The legal position, appropriately, is clear that the Court of Appeal may suspend or grant an application for sentencing. However, the person wishing to remain guilty must clearly state the consideration of the Court reversing the consequences of his or her conviction. Unless the Court’s decision is based on the possible consequences of a conviction, the convicted person will not be able to apply for conviction. In addition, the reward for remaining guilty can be converted to extraordinary cases depending on the shocking facts of the case. “

The legal status of the Supreme Court under Section 389 of the CrPC is very clear, it is enough for this Court to repeat it.

There is a real need, right, for a formal (proper) administration to provide relief and rehabilitation for the injured through extrajudicial executions and arrests. Whether this should be a law that governs everything or a system that specifically addresses the needs of the survivor, and those who are unjustly imprisoned, including the family and guardians of the detainee, or these should be governed by different rules or arrangements for discussion, consideration, and consultation with The purpose of the article is to pay for those who are unjustly detained, questions about the circumstances and circumstances in which such assistance can be obtained, in what structure and at what stage and are matters for consideration. This is the best work left in the main case of a body tasked with informing government officials of control measures expected to fill an undeniable hole.

The Court, appropriately, compels the Indian Law Commission to attempt a thorough investigation of the matter referred to in paragraphs 11 to 16 of this application and to make its recommendation to the Government of India.

Conclusion

In this case, the Delhi High Court expressed profound concern over the plight of innocent people who have been unfairly convicted and imprisoned for crimes they did not commit. The Court emphasized the urgent need for a legislative framework to provide relief and rehabilitation to victims of wrongful prosecution and incarceration and urged the Law Commission to conduct a thorough review of the aforementioned issues and submit recommendations to the Indian government.

In the current state of the criminal justice system in the country, an adequate reaction from the state to victims of a miscarriage of justice resulting in erroneous prosecutions is absent. There is also no statutory or regulatory framework detailing the state’s approach to the problem.

According to the solicitation made by the court, the Law Commission of India introduced a report to the Government of India in August 2018 named “Wrongful Prosecution (Miscarriage of Justice): Legal Remedies.” In this paper, the point is analyzed with regard to the Indian law enforcement framework, and the expression “wrongful prosecution” is suggested as the limit for a miscarriage of justice, rather than “wrongful conviction” and “wrongful imprisonment.” ‘Wrongful prosecution’ alludes to circumstances in which the blamed isn’t blameworthy for the wrongdoing, however, the police and additionally prosecution are occupied with bad behavior in exploring or potentially indicting the individual.

It would cover both cases in which the person served time in jail and those in which he did not; as well as those in which the accused was found not guilty by the trial court or was convicted by one or more courts but was ultimately found not guilty by the Higher Court. The report provides an outline of the various legal remedies and evaluates their shortcomings (also noted by the High Court in the aforementioned Order).

As a result, the Commission recommends enactment of a specific legal provision for wrongful prosecution redress – to provide monetary and non-monetary compensation to victims of wrongful prosecution within a statutory framework (such as counseling, mental health services, vocational / employment skills development, and so on). The Report lays out the core principles of the proposed framework, including defining “wrongful prosecution,” or cases in which a claim for compensation can be filed, naming a Special Court to hear these claims, the nature of the proceedings – timelines for deciding the claim, etc., financial and other factors to be considered in determining compensation, provisions for interim compensation in certain cases, and removing disqualification due to wrongful prosecution.

Hence, a legal (ideally legislative) framework for giving relief and rehabilitation to victims of wrongful prosecution and incarceration is urgently needed. In addition to the topic of paying persons who have been unfairly imprisoned, consideration should be given to the situations and conditions under which such relief would be available, as well as the form and stage at which such relief would be provided.

Citations:

1. (1977) 2 SCC 634
2. (1995) 2 SCC 513

This case analysis is done by Arryan Mohanty, a 2nd Year Student student of Symbiosis Law School.

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.

The need for interpretation only arises when the wording of the legal provisions is ambiguous, if it is not clear, if two views are possible, or if the meaning of the provisions is different from the subject of the legislation. If the language is clear and clear, no interpretation is needed to develop.

INTRODUCTION

The dictionary definition of interpretation is “the act of trying to make sense of something.” In a legal context, interpretation refers to the process of understanding and comprehending a statute’s intent. The word “interpretation” comes from the Latin word “interpretari,” which means “to explain or translate.” The basic goal of interpreting a statute is to figure out what the law’s intent is.

The goal of statutory interpretation is to identify the legislature’s objective, which is expressed either explicitly or implicitly in the wording used. “By interpretation or construction,” SALMOND explains, “we mean the process by which courts seek to discern the meaning of the legislation through the channel of authoritative shapes in which it is written.”
The art of interpretation is as old as language itself. Even from the earliest stages of Hindu civilization and culture, complex norms of interpretation were developed. Various ancient textbooks emphasized the necessity of evading literal interpretation – “Merely following the wording of the law, decisions are not to be delivered, for, if any such decisions are lacking in equity, a major failure of Dharma is caused.”

As a result, interpretation is a well-known and important activity. Because of the intrinsic character of legislation as a source of law, interpretation is critical in connection to statute law. The process of enacting legislation and the process of interpreting legislation are two separate operations.

Several aids are employed in the interpreting process. They might be either statutory or non-statutory in nature.
Non-statutory aids are illustrated by common law rules of interpretation (along with certain suppositions relating to interpretation) and case laws relating to the interpretation of statutes, whereas statutory aids are demonstrated by the General Clauses Act, 1897, and specific definitions contained in individual Acts.

MEANING OF THE GOLDEN RULE

“The grammatical and ordinary perception of the words is to be abided to unless that would lead to some absurdity, repulsion, or lack of consistency with the rest of the instrument, in which particular instance the ordinary meaning sense of the words may be altered so as to prevent the absurdity and inconsistency, but no further,” said Lord Wensleydale in the Grey v Pearson case (1857).

As a result, it is a departure from the literal rule of interpretation. The literal rule emphasizes the literal interpretation of legal terms or terms used in a legal context, which can frequently result in ambiguity and absurdity. The golden rule aims to prevent unusual and absurd consequences from literal interpretation. As a result, the grammatical meaning of these words is frequently altered.

The court is usually concerned with delivering justice, and the golden rule is typically applied in order to anticipate the repercussions of their rulings. Because the technical and grammatical meanings of the law may not be sufficient, this rule of interpretation tries to give effect to the law’s spirit.

The terms of a statute must be accorded their ordinary meaning prima facie according to the Golden Rule since when the meaning of a word is clear, it is not the role of the courts to get involved in the alleged purpose. When grammatical interpretation results in absurdity, however, it is permitted to depart from and interpret statutes in a way that eliminates the absurdity.

When presented with multiple plausible interpretations of an enactment, the court has the authority to analyze the outcome of every interpretation in order to determine the genuine meaning of the legislature. The golden rule does not provide a clear way to determine whether or not an absurdity exists.

In a nutshell, it is an interpretation that will give effect to the legislative intent when the words themselves become confusing, as a result of modifying the language employed. On the surface, this rule appears to be the “Golden Rule,” as it appears to solve all difficulties. This strategy is also known as the altering method of interpretation because the literal meaning is altered to a certain extent. As a result of this rule, the implications or effects of an interpretation are given far more weight because they provide clues to the underlying meaning of a law.

There are two ways to apply the golden rule:

Narrow Technique– When a word or phrase has far more than one literal meaning, this approach is used. As a result, the judge is able to utilize the meaning in a way that avoids absurdity.

Broad Technique– Whenever there is just one literal meaning, this approach is used. However, using just one literal definition would be ludicrous. The court will change the meaning in this case to prevent the absurdity. The change will be made with the objective of the Parliament in enacting the law in this case in mind.

IMPORTANCE OF INTERPRETATION

The term “interpretation” refers to determining the relevance of something, as well as determining an explanation for something that isn’t immediately clear. The process of drafting and interpreting a statute is as old as language itself.
The process of determining the actual meaning of the words used in a statute is known as statutory interpretation.
There is little need for interpretation rules when the statute’s text is clear. However, in some instances, the very same word or phrase might have many meanings. As a result, it is required to interpret the statute in order to determine its true objective.

From Heydon’s Case in 1854, statute interpretation has been an important component of English law, and while it may appear complicated, the key rules employed in interpretation are simple to understand. Even from the earliest stages of Hindu civilization and culture, complex norms of interpretation were developed. The guidelines offered by ‘Jaimini,’ the author of the Mimamsat Sutras, which were originally intended for srutis, were also used to interpret Smritis.
The concept of statutory interpretation cannot remain static. As new facts and circumstances emerge, interpreting statutes becomes a never-ending process.

Wherever the language of written law is unclear, not clear, or when two interpretations are available, or when the provision offers a different meaning, contradicting the purpose of the act, would there be a need for interpretation? There would be no need for interpretation if the language was clear and unambiguous.

IMPORTANCE OF GOLDEN RULE INTERPRETATION

When the meaning of a law can lead to absurdity or defeat the purposes of the enactment, it becomes the Court’s obligation to give effect to that interpretation. The law asks the court to go to the point of changing the meaning of terms in both the grammatical and common senses on occasion.

The court will not take a path that contradicts a provision of a law whose meaning appears to be relatively clear and obvious on the surface. This does not, however, imply that a law might be rewritten. It has to be possible to deduce the meaning of the words used from their context.

Unless the law’s phrases are nonsensical, confusing, or devoid of legitimate meaning, it is better to interpret them according to their normal and customary interpretation.

How is this golden rule of interpretation applied?
As a balance between the literal rule and the mischief rule, the golden rule can be proposed. It takes the literal interpretation route, giving the status its everyday meaning. On the same hand, if a literal interpretation results in an unreasonable consequence that is unlikely to achieve the act’s goals, the court has the authority to depart from the literal meaning. Also, while using, follows all applicable laws.

The following is an example of how to apply the rule in both its broad and narrow senses:

If a sign says, “Do not use the elevators if there is a fire,” the literal reading is that you should never use the elevator if there is a fire. But, this interpretation is nonsensical, and the sign’s true intent is to warn people not to use the elevators if there is a fire nearby.

The golden rule prevents a result that is contrary to public policy when employing a broader approach. A son, for example, kills his mother and then kills himself. The heirs of the mother’s property would either be the mother’s family or the son’s descendants, according to the law. In the interest of social policy, the court is likely to favour the mother’s family because there is an issue of benefitting from the crime.

The Golden Rule allows a court to consider an Act’s literal meaning. This rule allows a judge to deviate from the customary interpretation of a statute in order to avoid a ridiculous conclusion. When using the Literal Rule will result in an absurdity, this rule of legislative interpretation may be used. The Golden Rule provides a statute’s wording with its most basic, everyday meaning. When this could result in an irrational result that is doubtful to be the legislature’s objective, the golden rule enables a judge to deviate from this meaning.

GOLDEN RULE OF INTERPRETATION IN INDIA

In India, the Supreme Court and High Courts have utilized the Golden Construction of Statutes in a number of cases. When it appears that this rule is named even for literal rules, there may be some confusion. The golden rule begins with a search for the true definition of the provision, so if there is a clear meaning, plain and natural, and no repugnancy, the meaning is applied. However, when there is the potential of more than one meaning, one must go further to minimize annoyance by adjusting the language by adding, removing, or substituting terms in order to make the meaning correct expounding the legislature’s goal.

The Supreme Court concluded in Uttar Pradesh Bhoodan Yagna Samiti v. Brij Kishore that the term “landless person” employed in section 14 of the U.P. Bhoodan Yagna Act, 1953, which provided for the grant of land to landless people, was confined to “landless workers.” A landless labourer is someone who works in agriculture but does not own any land. The Court went on to say that “any landless individual” does not include a city-dwelling landless businessman. The Act’s goal was to put the Bhoodan movement into action, which aimed to distribute land to landless labourers that worked in agriculture. Even though he is landless, a businessman cannot gain from the Act.

In another case, under section 3A of the U.P. Sales Tax Act, 1948, Annapurna Biscuit Manufacturing Co. v. Commissioner of Sales Tax, U.P. Sales 34 Tax was set at 2% of turnover in the case of “cooked food.” The appellant company was in the business of making and selling biscuits. Whether biscuits, despite being meant for human consumption, could be considered as “prepared food” and so subject to taxation under the aforementioned provision’s notification. It was decided that if a statement can have a broader meaning, whether the broader or narrower interpretation should be recognized depends on the statute’s context. The words ‘prepared food’ did not cover the biscuit in this case.

CONCLUSION

Every country has its own legal system, with the goal of providing equal justice to all citizens. The court’s goal is to interpret the law in such a way that every citizen receives equal justice. The idea of blasters of interpretation was introduced to ensure that everyone was treated fairly. These are the rules that have emerged to determine the legislature’s true intent.

It is not always required for the language used in a statute to be clear, plain, and unambiguous, and in such circumstances, it is critical for courts to identify a clear and direct meaning of the words or sentences used by the legislature while also removing any questions that may exist.

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

Abstract

Every person’s life revolves around the concept of justice. Courts have been established in every country for the purpose of regulating justice. The courts are held in high regard as the guardians of the rule of law. This element of the courts contributes to the development of a trusting connection between the general public and the courts. When this relationship is harmed by unlawful influence in the courts, a miscarriage of justice occurs. A miscarriage of justice is the responsibility of the courts. The Supreme Court of India, the country’s highest court of appeal, declared that the rule of law is in place. As the ultimate bidder to justice, it is the apex court that gets to decide what is right and what is wrong. When the top court commits a miscarriage of justice, the entire country is thrown into chaos, and the public loses faith in the country’s judiciary.

The comment of Justice A.S. Anand, former Chief Justice of India and Chairman of the National Human Rights Commission, that the acquittal decision in the Best Bakery trial by a fast-track court was a “miscarriage of justice,” is not limited to that case, but can be applied to the entire mechanism of so-called fast-track courts as envisaged by the previous NDA government and now scrapped by the current UPA administration. The state did very little to return justice to its proper ‘quick’ track, and it is impossible for the average person to appreciate the question of when he will receive final justice in criminal or civil litigation.

Introduction

The decision to close the fast-track courts by the end of April, a year earlier than the five-year deadline, by starving them of funds because the Twelfth Finance Commission did not recommend any allocations, will put an end to the experiment without finding a viable replacement or doing anything to resolve pending cases.

The subject of the nation’s justice system’s very existence arises. Delivering justice is a challenging task since it must not only be done, but it must also appear to be done. This means that the court’s role does not end once the judgment is rendered, which offers justice to the parties in the case, but also after the court ensures that the judgment is applied. In recent days, there have been several cases of miscarriage of justice that have impacted not only the people engaged in the case but also the general public. Many people are confused about who is to blame for a miscarriage of justice: the courts or the judges who give the verdict. In either case, the integrity of the court system as a whole is jeopardized.

As a result, the court system has developed a number of strategies in order to limit the rising number of miscarriages in the delivery of justice and to carry out its mission efficiently and without hindrances. They can be successful at times and also fail at other times. As a result, the judiciary must keep a close eye on itself in order to avoid miscarriages of justice.

Miscarriage of Justice Explained

Justice can be defined as justness or righteousness, whereas miscarriage denotes failure. As a result, a miscarriage of justice denotes a failure to declare what is right and just. A miscarriage of justice happens when an innocent person is found guilty, allowing the true perpetrator to flee the scene. The criminal justice system is meant to be set up in such a way that it punishes those who are found guilty as well as acquits those who are found not guilty. If any of these ingredients are missing, a miscarriage of justice will very certainly result. True, the criminal justice system cannot ensure the punishment of the wicked or the acquittal of the innocent, but it may certainly attempt. Even after being exonerated of the erroneous prosecution, it is difficult for an innocent individual to lead a normal life after being tried as a criminal. As a result, it is the responsibility of the state to guarantee that the person has a normal existence.

Under Article 14(6) of the International Covenant on Civil and Political Rights, read with General Comment 32 of the United Nations Human Rights Committee, the United States, the United Kingdom, and Germany have already adopted the same remedial method in which the State regulates statutory responsibilities by providing compensation to victims of wrongful prosecution. The High Court of Delhi emphasized the rehabilitation of victims of unfair prosecution in the case of Babloo Chauhan v. State Govt. of NCT of Delhi¹, in order to assist them to lead a normal life following their acquittal. The court stressed the creation of a legal framework that would govern the formation of a committee to care for these innocent victims. Miscarriage of justice results in wrongful prosecution and humiliation of the innocent party. Miscarriage of justice can occur not only in the courts but also in the hands of investigating officials on the ground. Innocent people are also affected. Taking note of these factors, the Supreme Court issued a historic decision in 2016 in the case of Rudul Sah v. the State of Bihar², declaring that innocent people who have been subjected to shoddy investigation and unfair prosecution shall be compensated by the state in question. A miscarriage of justice can be caused by a hasty decision on the part of the court in certain cases to clear out pending judgments, plea bargaining, which involves providing an incentive to the judge hearing the case in order to declare the innocent as guilty, bias in the investigation procedure by the officials, evidence gathered by the police associated with the offense is frequently destroyed, and judicial misconduct on the part of the judge. As a result, a miscarriage of justice is an unwelcome activity carried out by the judiciary or investigating officials that, to a considerable extent, violates human rights.³

Alarming Rate of Pendency

The amount of unresolved cases is upsetting. As indicated by data accessible on July 5, 2000, there were 21,600 cases forthcoming under the steady gaze of the Supreme Court, contrasted with 1.05 lakhs 10 years earlier. In the High Courts, there are presently 34 lakhs of forthcoming cases, contrasted with 19 lakhs a decade prior. The Supreme Court has 645 cases progressing for over a decade, while the High Courts have 5,00,085. The inability to fill judge vacancies sooner rather than later is one of the reasons for the huge expansion in the number of forthcoming cases in High Courts. There are presently around 100 such vacancies. The quantity of cases anticipating preliminary in the country’s 12,378 locale and subordinate courts is assessed to be in large numbers. 1,500 of the 12,205 judge and justice positions in these courts are vacant.

Fundamental Rights of Speedy Trial

The fundamental right to a speedy trial has become a daily farce due to the delays, lack of accountability, and half-baked ideas. “A timely trial is essential to criminal justice, and there can be no doubt that the delay in trial by itself constitutes a denial of justice,” the Supreme Court stated.⁴ “There can be no question that rapid trial — and by speedy trial, we mean a properly expedited trial — is an integral and vital aspect of the fundamental right to life and liberty contained in Art 21,” it continued in another case. It is a vital responsibility.⁵ Even if Art. 21 is not enforced, the demand for quick justice is unavoidable under the Constitution. According to the preamble of the Constitution, the state is required to guarantee social, economic, and political justice to all of its citizens.⁶ The state should strive for a social order in which justice is represented in all aspects of national life, according to the Directive Principles of State Policy. “The State shall ensure that the operation of the legal system promotes justice; to ensure that no person is denied access to justice because of economic or other disadvantages,” it continues.⁷ The Supreme Court has held that “social justice would include ‘legal justice,’ which means that the system of administration of justice must provide a cheap, expeditious, and effective instrument for realizing justice by all sections of the people, regardless of their social or economic position or financial resources” in interpreting this provision.⁸

Need for a fair Judge-Population Ratio

The way public authority has would not take on a suggestion by the Law Commission of India to upgrade the judge-to-populace proportion. As indicated by the 120th Law Commission Report, “In the event that official portrayal can be determined in light of populace, as recently expressed, and other state administration, police, and different administrations can be arranged similarly, there is not a great explanation for why a similar standard can’t be applied to legal administrations. While the populace is a segment unit, it is additionally a vote-based unit, it should be recognized transparently. At the end of the day, we’re discussing residents who have popularity-based privileges, for example, the option to admittance to equity, which the state is committed to giving “. While proposing a fivefold expansion in legal strength at all levels of the Indian legal executive (from 10.5 to 50 judges for every million of the populace), the 120th Law Commission additionally noticed that India’s judge-populace proportion could not hope to compare to a few different nations. Rather than spending Rs 4750 crore to redesign the current legal executive by expanding the judge-populace proportion, the NDA government has proposed a 502-crore quick track court project for a five-year term, which is a specially appointed, silly endeavor to deal with a huge issue of confusing pendency.

The arrangement required the foundation of 1750 quick track courts, five in each locale, to speed up the goal of forthcoming lawbreaker cases. The idea is sound since it tackles the issue of undertrials grieving in jail for a really long time and turning into a monetary weight on the public authority. An amount of Rs. 502.90 crores was endorsed as an exceptional issue and upgradation award for the legal organization for a long time, till 2005, under the Fast Track Court Scheme. There are at present 1.8 lakh undertrials in bars, with the public authority paying around Rs. 361 crores each year on their upkeep at a pace of Rs. 55 for each individual, consistently in jail. As indicated by the sources, “just about two crore cases were anticipated to be settled by 2005,” bringing about tremendous reserve funds in prison uses while likewise settling a “genuine basic liberties worry.” “No less than five such courts work with full government help with each locale the nation over,” said Mr. Arun Jaitley, then, at that point Minister of Law (2000-2002, 2003-2004). The system, which would likewise deal with undertrial cases, was financially savvy since it would cost an expected Rs. 100 crores each year, contrasted with the Rs. 360 crores spent by states every year on undertrials upkeep. The Center set out just Rs 100 crore each year for this reason, with the assumption that all forthcoming detainee cases would be settled in something like a time of the most optimized plan of attack courts’ foundation. It is obscure whether the undertaking will be finished in something like four years. As per Union Law Minister H R Bhardwaj (2004-2009), the most optimized plan of attack courts could resolve 3.8 lakh of the 8 lakh cases allotted to them in four years. The middle would not give them Rs 100 for the undertaking’s fifth and last year, compelling them to close down the nation over.

Initial Setback

At the point when it was first presented, the allies were irritated, truth be told. The arrangement was tested by the Andhra Pradesh Bar Council as unlawful and incapable of giving quick equity. The AP High Court requested a stay on the activity of quick track courts after the appeal was acknowledged. The bar chamber’s reactions to the most optimized plan of attack courts are legalistic in the most terrible feeling of the world. For instance, it scrutinizes the Finance Commission’s affirmation that the expense of undertrials (assessed at Rs 20,000 for each individual each year) will diminish as quick track courts speed up the goal of their cases. The bar board asserted, rather grandiosely, that a court’s only intention is to administer equity, not to diminish prison spending.

It likewise goes against the directing officials being named on a two-year agreement from among resigned judges. The bar committee contended that the most optimized plan of attack courts’ authoritative judges will be less responsible than the customary courts’ long-lasting judges. The AP High Court deferred the plan’s execution since it seemed to have major legitimate and sacred flaws. The Union government pursued the High Court’s choice to the Supreme Court in a Special Leave Petition (SLP). As indicated by the SLP, the High Court made a lawful blunder by really giving the writ request through an ex-parte request in light of a simple at first sight assessment of the legitimacy of laying out quick track courts without articulating the grounds. The High Court’s structure was deferred on May 2 by a Supreme Court seat comprising Justice B.N. Kirpal and Justice Ruma Pal. Afterward, while hearing a case on the situation with undertrials in different States, one more Supreme Court Bench, drove by Chief Justice of India (CJI) Justice A.S. Anand, Justice R.C. Lahoti, and Justice Doraiswamy Raju, communicated lament that the plan of quick track courts, notwithstanding its significance, was not brought to the CJI’s consideration before the public authority made a declaration in such manner. The judges called attention to that the assets given to state legislatures to layout quick track courts ought to have been put in the possession of the Chief Justices of the High Courts for appropriate use.

“On the off chance that you fabricate structures first, pick judges,” the Bench noticed, “the most optimized plan of attack courts will turn out to be incredibly sluggish.” The Court inferred that the course of action would have worked better assuming the Chief Justices of the High Courts included picked the cases and areas that the most optimized plan of attack courts ought to attempt. The Bench additionally considered how previous District Judges could be enlisted as managing officials and who might be responsible for them. Its basic comments have caused frustration, as Law Ministry authorities keep up with that the plan’s draft was conveyed to all states and Chief Justices of every single High Court, and that it was just executed after intensive interviews with the legal executive at all levels. As per these sources, just the Chief Justices of the High Courts would allow judges to quick-track courts. In reply to a TV interview, H R Bharadwaj demonstrated that by March 2004, 1400 such courts were working, with 8 lakh cases going over to them, with 3.8 lakh cases getting a decision. Notwithstanding, he asserts that the strike rate is excessively low and that the explanation for this is that the most optimized plan of attack courts are dealt with by judges who come up short on energy for equity. “More youthful blood ought to be allowed an opportunity as opposed to resigning judges; they can acquire advancements and have a future,” Bharadwaj commented. He additionally expressed that he will start filling vacancies in different courts in the nation in the following three weeks.

Impact

The media claimed in 2002, while the courts were still getting up to speed, that the plan was beginning to have, “It had a positive influence on crime, since the number of heinous crimes had decreased, notably in Rajasthan and Maharashtra. Uttar Pradesh and Bihar had also suffered the effects.” The Parliamentary Standing Committee, which includes members from all political parties and is chaired by an opposition member, expressed pleasure in May 2003 and asked the government to do more.⁹

Lack of Accountability

Ad hoc Judges would be appointed for a two-year term from among retired sessions or additional sessions Judges, members of the Bar, and judicial employees who would be elevated on an ad hoc basis under the fast-track court program. The High Courts will be in charge of appointing judges. The Centre has urged state governments to use a particular drive to fill any vacancies that may arise as a result of ad hoc promotions. They did not anticipate the issue of presiding officers’ lack of accountability as a result of the provision of a short tenure in office after retirement.

There are serious concerns that litigants with clout at the district level could use the plan to their advantage to advocate for the fast disposition of causes they care about, which could lead to a miscarriage of justice. The model does not allow for the infusion of new and youthful judicial talent, which is plentiful. There were no fundamental changes in the legal system as a result of the fast-track courts program. There has been no new procedure code established. Retired judges, who have served in the past but have no plans for the future, are dispensing justice at a breakneck pace. It’s worth noting that these gentlemen never performed at even half their normal speed in their regular jobs. This is due to two factors. One, because they were vulnerable to disciplinary hearings during their ordinary jobs, the judges were cautious. A person who has already retired and is serving on a short end-of-career tenure is not subject to disciplinary action. This is compounded by the Indian legal system’s complete lack of judicial accountability. Two, some judges see this term assignment as their last chance to make some money while the sun is shining. As a result, there was a greater emphasis on speedy wheeling-dealing and the disposal of the greatest number of cases possible.

Is it permissible to follow the easy way of acquitting the accused because of a mechanical adherence to the idea that “hundreds of criminals may escape, but one single innocent must not be punished”? Though it is a commonly accepted principle that no innocent person should be punished, courts are obliged to be sensitive and cautious in order to ensure that no criminal escapes. In such circumstances, the criminal justice system’s sustainability is put to the test. Otherwise, criminal activity will continue uninterrupted.

Worst Example of Fast-Track Injustice: Best Bakery

At its Special Leave Petition (SLP) in the Supreme Court, the National Human Rights Commission challenged the judgment of the Fast Track Court of H.U. Mahida acquitting all 21 accused in the Best Bakery case, which involved the murder of 14 Muslims in communal riots in Vadodara on March 1, 2002. The NHRC claimed in its petition to the Supreme Court that even as one witness after another, including the main eyewitnesses, became hostile, Judge Mahida made no attempt to figure out why this was happening. The NHRC objected strongly, citing documents, that there was no adequate cross-examination of Zahira Sheik and Lal Mohammad, who contradicted their earlier written statements. “Instead of attempting to bolster the prosecution case, it appears that steps to the contrary were done,” according to the NHRC appeal. The NHRC also noted how the trial was reduced to a farce by excluding a full cross-examination of the investigating officer, who testified on June 21. The Additional Sessions Judge, Fast Track Court No. 1, Vadodara, completed the examination and recording of all 21 accused people’s statements under Section 313 of the Criminal Procedure Code (CrPC) on the same day and proceeded to hear arguments in part. The Fast Track Court, as its name suggests, handed down its decision on June 27.¹⁰

On February 20, the trial began. Was the trial court completely powerless in the face of a dearth of evidence? Apparently, the trial court believed it lacked the authority and jurisdiction to determine who was the genuine criminal if the accused were not guilty, or to compel restitution from the government to the victim. In his ruling, Judge Mahida stated, “The court of justice is not a court of justice in the true sense, rather it is a court of evidence.” “The prosecution was required to petition to the court to have the trial conducted in camera under Section 9 (6) of the CrPC when one witness after another was observed by the court to be resiling from the earlier statement made. Even if the prosecution did not do so, the court had the authority to request that the trial be held in private “The National Highway Traffic Safety Administration (NHTSA) drew attention to this. The trial court can postpone the trial under Section 309 of the CrPC for reasons that must be stated in writing in order to guarantee that a safe environment is provided for witnesses to depose without fear. It is also conceivable to recall and re-examine any person previously examined under Section 311, particularly if his or her testimony appears to be critical to the case’s just conclusion. The Fast Track Court did not use these powers and instead chose to acquit everyone. On August 8, the Supreme Court Bench appeared to concur with the NHRC’s petition in broad terms. It ordered the Centre and the Gujarat government to produce a report within two weeks detailing any plans to reform the criminal justice system.¹¹

Recent instances of miscarriage of justice

The case of Parsa Kente Collieries Ltd v. Rajasthan Rajya Vidyut Utpadan Nigam Limited, in which leave was eventually granted, was decided in haste and without much deliberation by the Supreme Court. According to the notification dated May 9th, 2018, the matter was meant to be heard by the summer vacation bench of the court, but it was instead taken up by a different bench. The case was put on hold since the court couldn’t reach a decision owing to a lack of evidence. In addition, the court took up the matter on May 21st on its own, hearing an argument from one of the parties involved. The judgment date was given the very following day.

The decision was made without informing the attorneys engaged in the case. The court’s action appeared to be ambiguous because the subject was not urgent enough to be dealt with before the deadline. As a result, this ruling was seen to be a miscarriage of justice because there was no necessity involved and the court made its decision in haste in order to clear out the pending cases. M/s Adani Power (Mundra) Ltd v. Gujarat Electricity Regulatory Commission and Ors was a case similar to this one in which the court acted similarly. In this case, too, the court’s decision was based on a new date chosen by itself rather than the previously specified dates. This clearly demonstrates that the court was biased in favor of one of the parties in the case. Both of these cases involved Adani Business Groups, and because the verdicts were in their favor, the business group profited by crores of rupees. Both rulings were rendered in an unreasonable and rushed way, which is contrary to the court’s regulations.

It’s possible that the court reached a decision as it saw fit, but the process by which the cases were handled, both of which were affiliated with a huge business company, was not fair. Another case in which the court committed a miscarriage of justice was Zulfikar Nasir & Ors v. State of Uttar Pradesh & Ors, often known as the Hashimpura massacre. The Hashimpura massacre occurred during the Rajiv Gandhi government’s reign of terror in India. The massacre resulted in the deaths of approximately 45 Muslim men who were being transported by a Provincial Armed Constabulary truck. Those men were wrongfully detained and held in detention for an indefinite period of time. As a result, the actions of the members of the Provincial Armed Constabulary were manifestly illegal. The killings occurred while the Muslim men were being held in jail. Because neither the men who were taken away nor their dead corpses were ever returned to their families, the High Court made it plain that the victims’ families had the right to know the reason and the truth as part of their access to justice. In a 2015 verdict, twenty years after the occurrence, the court acquitted all of the accused males on the basis of a lack of transparent evidence. The court’s decision has sparked a number of questions and debates about the country’s justice delivery system. After the matter had been neglected in the High Court of Uttar Pradesh for so long, such a move by the Supreme Court was a clear indication of a miscarriage of justice. The compensation which was decided by the Uttar Pradesh government to be provided to the families of the victims of the massacre was not put into effect as well. Many legal experts simply labeled this as genocide, and the court’s inaction on the topic was not welcome.

The court may have reached a rational judgment, but it should have also devised some means of obtaining justice for the victims’ families and should not have delayed the case for so long. Because jihadists are responsible for a large number of terrorist activities, many innocent Muslims have been exposed to abuse and harassment as a result of investigative officials declaring them guilty. The court had recognized the police officials’ miscarriage of justice in a case from 1996, in which the officials had arrested a few Muslim males and accused them of being responsible for an explosion at New Delhi’s Lajpat Nagar Market. These guys were cleared of the same charges in a 2012 ruling. If the court had not reviewed the police investigation, this case would have been considered a terrible miscarriage of justice. Following the 2011 attack, a new investigative team was developed in order to avoid future mismanagement and carelessness when conducting investigations. This episode, which occurred after the formation of the new time, exemplifies how officials’ carelessness and stupidity caused innocent individuals to suffer as a result of the improper prosecution of a case in which they were not even involved.

This case also highlights the Supreme Court’s role in the case, which is to keep a check on the activities of the police officers involved. Along with the courts, the government bears the duty of policing officials’ carelessness. The fact that the cases are being handled in his state must be made known to the state governments. Strict actions must be taken to ensure that authorities work diligently and with care. Taking a cue from Indian cases, the insights of a miscarriage of justice are nothing new in international situations. The United States of America has long struggled with racial issues, so the Florida bench’s decision in the case of Florida v. George Zimmerman, which involved the assassination of Trayvon Martin, an African-American teenager, by George Zimmerman, an American, was not a welcome one, as it exacerbated the society’s long-standing racial divide and was thus declared a miscarriage of justice. In this instance, the defendant was hurt as a result of the plaintiff’s murder and thus claimed self-defense. As a result, he was cleared of the murder allegations leveled against him. Several civil rights activists were opposed to the verdict, which was deemed to be discriminatory.

The court’s decision may not be incorrect, but the fact that a youngster was slain without cause should have been causing alarm. These examples show when a case has reached a court and has been heard by that court. There are a number of different situations that lead to a miscarriage of justice even before the case reaches the courts. The rape instances stand out among them. Several times, the victim of a rape case has been forced to withdraw their petition from the court due to pressure from society, the families involved, and political considerations. This implies a terrible miscarriage of justice by the courts due to the lack of support it is meant to provide to the victims and the inability to withdraw the claims that are pending. The oppression of African-Americans by whites has been a long-running social fight. The courts exist to promote equality and to eliminate any disparities that may arise. The Florida Supreme Court’s decision in the case of Florida v. George Zimmerman served to accentuate the social divides that previously existed. It is usually preferable for the courts to end a case with a conclusion based on grounds and clarity, as the absence of these factors leads to injustice.

Rape cases are a serious societal issue, and it is not difficult to press charges in such circumstances because there are statutes dedicated solely to rape. According to police officials, even after a successful investigation, the case is delayed due to a lack of judicial participation in such instances. Following that, the nation was made aware of the delays in the court’s decision-making ability through the case of Mukesh & Anr v. State for NCT of Delhi & Ors, also known as the Nirbhaya case. After nine years of litigation, the victim achieved justice when the rapists were sentenced to death by the court. However, not all rape cases have the same resources and support as Nirbhaya’s. This is a reflection of the court system’s flaws, which result in a miscarriage of justice. The events described above occurred within the last five to ten years. They were chosen because they reflect the direction in which the country and the world as a whole are heading. When the courts have gone to the aid of the victim to prevent injustice, they have also stayed silent or absent when justice has been denied.¹²

Why not the system is strengthened?

Poor litigants will continue to suffer unless systematic reforms are implemented to eliminate delays. Even within the current system, there is no reason why formal court processes should not be developed to expedite the hearing of urgent matters rather than leaving it to chance or using fast-track courts. Decisions on requests for early hearings are often made without regard for the consequences of any delay for poor litigants under the current system. Fast-track courts are unlikely to make a difference to the massive backlog of cases if there isn’t a rational and sensible system in place to support the rapid disposition of cases.

There is a need for studies that assess the quality of decisions rendered and the level of public confidence in the judicial system on a regular basis by the Law Commission, the National Human Rights Commission, law schools, and the nation as a whole. The fast-track court plan was a temporary fix that appears to have worked on the surface, as the backlog of cases has likely decreased and cases are being resolved more quickly. On the other side, it has caused major problems by resulting in a massive ‘miscarriage of justice’ in thousands of instances, eroding the judiciary’s credibility. On a legitimate mission, the entire legal system should be run on a fast track.

Ways to avoid a miscarriage of justice

No court wants to issue a decision that could result in a miscarriage of justice. It is not only the courts that are responsible for delivering an unjust verdict, but also the investigating officers who arrive before the case reaches the courts. Miscarriage of justice, if it occurs, should be prevented in order to ensure that the courts provide justice in a clear, affordable, and consistent manner. Below are some suggestions about how to go about doing so.

Special Courts

When courts are inundated with cases, they issue hasty decisions in an attempt to reduce the number of pending cases, which leads to miscarriage of justice. By their very nature, decisions made in haste are destined to be unjustified. To avoid this, special courts have been recommended and are being built up to handle a few cases and give justice quickly and without any loopholes. It has been suggested that special courts be established in each area to prevent unjust prosecutions from being carried out. The harmed person can file a claim alleging that he or she was wrongly prosecuted. The claimant bears the burden of proof for the unjust prosecution.

The special courts provide an efficient system for filing cases, payment options for clearing fees, a list of timetables for case disposition, the time limit for filing an application, and so on. For ordinary folks, this has made the court system easier, faster, and smoother. This is one technique to ensure that judges’ actions are monitored and that miscarriages are avoided. The special courts are required to send notice of the appeals hearing to the parties concerned in the case after receiving a claim.

The special court will provide an award for damages, whether monetary or non-monetary, to any party in the case after hearing the case and hearing both sides’ appeals. This simplifies the entire legal process for both the parties and the courts. The court must consider a few issues before awarding compensation to the victim, which is given below:

• A brief financial history
• Emotional harm to the aggrieved person
• Damages to the aggrieved party’s health, and so forth.

Human Rights

Human rights are fundamental rights that are granted to all citizens, regardless of their background. Human rights include the right to a fair trial, the right to freedom of speech and expression, and the right to liberty, all of which might be considered essential aspects in preventing a miscarriage of justice. The right to a fair trial is guaranteed under Article 6 of the Human Rights Convention, which states that everyone is presumed innocent until proven guilty. Article 5 of the Human Rights Convention guarantees liberty.

The phrase “liberty” refers to the fact that a person will be prosecuted according to the method laid out, and that the person imprisoned must be aware of the reasons for his detention. The guarantee of access to justice within a certain time frame is accompanied by liberty. The right to freedom of expression is addressed in Article 10 of the Human Rights Convention. This freedom allows an individual to connect with others who can help him get out of trials or provide a larger platform to demand justice, such as the media.

The special courts provide an efficient system for filing cases, payment options for clearing fees, a list of timetables for case disposition, the time limit for filing an application, and so on. For ordinary folks, this has made the court system easier, faster, and smoother. This is one technique to ensure that judges’ actions are monitored and that miscarriages are avoided. The special courts are required to send notice of the appeals hearing to the parties concerned in the case after receiving a claim.

Principles of Natural Justice

Natural justice principles have served as an important check on the possibility of a miscarriage of justice. In a similar way to human rights, the Indian Constitution includes natural justice principles in some of its sections to protect public rights. When there is a miscarriage of justice, it is the general public who suffers the most. Natural justice principles underpin all other statutes in place, hence they must be kept in mind for the Constitution to work effectively, as their violation amounts to the arbitrary exercise of power.¹³

Curative Petition

Curative petitions are those that serve as the last constitutional alternative for redressing grievances that have arisen in the court after the review plea has been exhausted. The Supreme Court adopted a curative petition for the first time in the matter of Rupa Ashok Hurra V. Ashok Hurra and Anr, in order to prevent a miscarriage of justice from occurring. In this case, the court stated that curative petitions can only be filed if the petitioner can show that the principles of natural justice have been violated.

In addition, the petition has the burden of establishing that the court was unaware of the presence of a curative petition at the time of the judgment. Although curative petitions are viewed with suspicion in unusual circumstances that are witnessed in open court proceedings, they are one of the tools for preventing miscarriages of justice and placing limits on the use of the courts’ power. In plain terms, a curative petition is a second review by the courts of its own judgments that have previously been issued. Article 137 of the Indian Constitution gives the Supreme Court the power to reconsider its decisions after they have been declared obligatory. The party that has been wronged has a legal right to make an appeal to the court for a second time to have its judgment reviewed, which must be done according to the court’s regulations.

Judicial review

Judicial review is a judicial power that allows the courts to check the constitutionality of the legislature’s and executive branches’ responsibilities. True, miscarriage of justice does not always arise as a result of court orders, but it can also emerge from the influence of the legislature and executive branches of government. Several cases have occurred that demonstrate how the executive’s influence and statutes enacted by legislatures might leave the judiciary unsure of what verdict to issue. To be on the safe side, courts frequently fail to pursue the road of justice, resulting in a miscarriage of justice. To avoid this, the courts can control the power of judicial review to keep a check on the other branches of government, and rather than being influenced individually, the three branches of government can work together to avoid a situation that could result in a miscarriage of justice.¹⁴

Conclusion

Miscarriage of justice is not a welcome development because it violates human rights. For the judiciary, a miscarriage of justice raises a lot of questions. The judiciary’s goal is to correct injustice. Because it leads to unfairness on the side of the parties concerned in the case, a miscarriage of justice negates the judiciary’s goal. The judiciary is well aware of the duties and responsibilities it bears to the nation’s residents. As a result, there is no need to instruct the courts. The judiciary, for its part, has already taken a number of steps to address the miscarriage of justice.

The judiciary should use more of these types of corrective procedures in order to successfully carry out the application of law and protect the innocent by administering justice. It is important to remember that the courts have served as a guiding light in countless cases, providing justice to both parties involved. Default does occur from time to time, but this is because of the confidence that courts have built with the public through time. The remedies and instruments established by the courts to provide safeguards will serve to maintain the judiciary’s independence and, as a result, allow it to function effectively.

References:

1. 247 (2018) DLT 31
2. 1983 AIR 1086
3. https://www.theguardian.com/commentisfree/2018/may/09/miscarriage-of-justice-victims-uk-supreme-court
4. Hussainara Khatoon V. State of Bihar AIR 1979 SC 1364
5. Maneka Gandhi V. Union of India, AIR 1978 SC 597
6. Constitution of India, 1949, art.38(1)
7. Constitution of India, 1949, art.39(A)
8. Babu V. Raghunathji AIR 1976 SC 1734
9. https://eachother.org.uk/5-shocking-miscarriages-justice-prisoners-need-human-rights/
10. https://www.news18.com/news/india/miscarriage-of-justice-delhi-hc-acquits-man-of-raping-daughter-10-months-after-his-death-1978487.html
11. Dr. Madabhushi Sridhar, Miscarriage of Fast Track Justice, Legal Service India http://www.legalservicesindia.com/articles/misoj.htm
12. Oishika Banerji, Recent instances of miscarriage of justice, iPleaders https://blog.ipleaders.in/recent-instances-miscarriage-justice/
13. Laskit, Concept of Natural Justice, Legal Service India https://www.legalserviceindia.com/legal/article-1549-concept-of-natural-justice.html
14. https://www.scconline.com/blog/post/2018/09/08/wrongful-prosecution-miscarriage-of-justice-legal-remedies-law-commission-of-india-report-no-277/

This article is written by Arryan Mohanty, a student of Symbiosis Law School.

Bench

Justice Indu Malhotra, Justice L. Nageswara Rao

Date of Judgment

9th July 2020

Provisions

Order VII Rule 11(a) & 11(d), CPC, Section 73AA of Land Revenue Code, The Limitation Act, 1963

Cases Referred

Vidyadhar v. Manikrao [(1999) 3 SCC 573], Chandrashankar Manishankar vs. Abhla Mathur and others [AIR (39) 1952 Bombay 56]

Introduction

In Dahiben v. Arvindbhai Kalyanji Bhanusali & Ors., the Supreme Court of India stated that mere non-payment of the full amount of consideration cannot be held as a ground for cancellation of sale deed.

Factual Background

• The Supreme Court was considering an appeal from a Division Bench of the Gujarat High Court, which had upheld the Trial Court’s judgment admitting an O7R11 application and ruling that the Appellants’ complaint was prohibited by limitation. In the recent case, the plaintiff owned a piece of agricultural property in the hamlet of Mota Varachha, Surat Sub-District. According to Section 73AA of the Land Revenue Code, the land was subject to restricted tenure. The Plaintiffs applied to the collector of the district for permission to sell the property to Respondent 1. The collector allowed the property to be sold and set the sale price according to the jantri issued by the State Government. The purchaser was required to pay via cheque, with a reference to the payment in the Sale Deed. The plaintiffs sold the property to respondent 1 after obtaining all necessary permissions. Respondent 1 issued 36 cheques for the payment of Rs.1,74,02,000 towards the sale considerations in the favour of Plaintiff.
• Later, Respondent No. 1 got the Land from Plaintiff and sold it to a group of third parties, comprising Respondents Nos. 2 and 3, in a transaction dated April 1, 2013, for Rs.2,01,00,000.
• The Plaintiff filed a suit before the Principal Civil Judge of Surat in December 2014, more than five years after the Sale Deed was executed, alleging that the sale consideration for the Land had not been paid in full by Respondent No.1 and praying, inter alia (among other things), that the Sale Deed is declared void, illegal, and ineffective. Respondents No. 2 and 3 were impleaded in the complaint since the Land had already been sold to them and was in their possession at the time the suit was filed.
• The Plaintiffs claimed that they were completely illiterate, unable to read or write, and could only make a thumb imprint on the Sale Deed dated 02.07.2009. The Sale Deed was gotten without full consideration being paid. Just Rs. 40,000 had been paid through six checks by Respondent No. 1, and the rest 30 checks adding up to Rs. 1,73,62,000 were false checks.
• On the grounds that the Suit was precluded by limitation and that no cause of action had been disclosed in the plaint, the Respondent filed an Application for Rejection of the Plaint under O7R11 (Application for Rejection).
• The Trial Court determined that the time restriction for filing the lawsuit was three years from the date of the sale deed’s execution on July 2, 2009. The Trial Court further highlighted that the lawsuit was filed on December 15, 2014, and so was time-barred. The Trial Court dismissed the lawsuit and granted the Application for rejection. The Appellants sought an appeal with the Gujarat High Court after being aggrieved by the Trial Court’s decision, which in turn upheld the decision. As a result, Plaintiff petitioned the Supreme Court to set aside the High Court’s decision.

Issues Raised

1. Whether non-payment of the part of sale consideration is a ground for cancellation of registered sale deed?
2. Whether the case filed by Plaintiff is barred by the Limitation Act?

SC Analysis and Judgment

The Supreme Court outlined the law that applies while determining an application under Order VII Rule 11 CPC. The court cited Vidyadhar v. Manikrao¹ and Section 54 of the Transfer of Property Act, 1882, saying that the words “price paid or promised or part paid and part promised” indicate that actual payment of the entire price at the time of the execution of the Sale Deed is not a sine qua non for the sale to be completed. The Court stated that in the Plaint, the Plaintiffs established a case of claimed non-payment of a portion of the selling consideration and requested relief of cancellation of the Sale Deed on this basis. Even in case, the whole purchase price is not paid, as long as the paperwork is registered and signed, the sale is done, and the title transfers to the transferee under the transaction. If a portion of the sale price is not paid, the transaction’s validity is unaffected. The parties must intend to transfer ownership of the property in exchange for a price that can be paid now or in the future to be regarded as a sale. The Plaintiffs might have other remedies in law for recovery of the equity consideration but could not be allowed the relief of cancellation of the registered Sale Deed.

Further, the SC held that Plaintiff’s claim that it first learned of the alleged fraud in 2014 after receiving the index of the Sale Deed was completely false because receiving the index would not be a cause of action for initiating the complaint. It was also noted that Plaintiff had omitted the date of execution and registration of the Sale Deed on purpose. As a result, it determined that the present case was a classic situation in which the Plaintiffs tried to build up an artificial cause of action to bring the claim within limitation by skillful writing of the plaint and that it should be dismissed at the threshold.

In Chandrashankar Manishankar vs. Abhla Mathur and Ors.², it was held that the document’s recital indicating payment of the consideration may be false, but it doesn’t make the document invalid. The entire amount does not have to be paid for the sale to be effective, since Section 54 of the Transfer of Property Act stipulates that the price may be paid or pledged in whole or in part. The Court further concluded that if the consideration was not paid but the document demonstrates that there was an intention to pay, the document is not declared invalid because the consideration was not paid. If, on the other hand, there was no intention of paying any consideration, the document is null and void.

The bench so on held that the Plaintiffs’ current lawsuit is a misuse of the court’s procedure and devoid of any merit. In light of the foregoing discussion, the instant Civil Appeal is rejected, with costs of Rs. 1,00,000/- payable by the Appellant to Respondents Nos. 2 and 3 within twelve weeks of this Judgment’s date.

Conclusion

In the recent case, the court determined the fact that the parties should not waste the time of the court as already there is a huge number of cases pending before the court and the lawyers of the parties should reject the plaint at the threshold if it does not disclose any cause of action. Plaintiff should be diligent in safeguarding its legal rights and making sure that legal actions are started before the statute of limitations runs out. In addition, the plaintiff should make certain that the plaint is well constructed in order to highlight important problems. If the ownership of the property has been transferred to the other party, even if the money has not been paid in whole or in half, the party has no right to launch a lawsuit against the other, claiming that the contract is void or illegitimate. If the plaint is submitted beyond the deadline if the averments do not reveal a valid cause of action, the Courts will not hesitate to dismiss the case.

Citations

1. (1999) 3 SCC 573
2. AIR (39) 1952 Bombay 56

Analysis by Hemant Bohra student at School of Law, Lovely Professional University, Punjab.

Introduction

Sir John Salmond has defined ‘Right’ as an interest recognized and protected by a rule of justice. It is an interest in respect of which there is a duty and the disregard of which is ‘Wrong’.¹

He further has explained that a ‘Legal right’ is an interest recognized and protected by rule of law and violation of which would be a ‘Legal Wrong’.

Now coming to Intellectual property rights; these are those ‘Legally Protected Exclusive Rights’ awarded to the creators for their intellectual creations. When these rights are violated then cases are filed to get legal remedy. In this article, have tried to gather 10 landmark judgments where intellectual property rights were infringed.

Types of Intellectual Property

Before diving any deeper we first need to know what does intellectual property means and what its types are.
The World Intellectual Property Organization (U.N.) defines ‘Intellectual Property as the Creation of the mind, such as inventions; literary and artistic works; designs; and symbols, names, and images used in commerce.²

The above definition gives an overall idea that intellectual properties are more than one and have different rights associated with them. Generally, there are 7 kinds of Intellectual property rights. They are patents, Copyright, Trademarks, Industrial Designs, Geographical Indications, Plant Varieties, and Semiconductor Integrated Circuits. For example, patents are issued for inventions while copyrights are given for literary and artistic works.

Landmark Cases on Intellectual Property Rights

Below is a list of landmark judgments on Intellectual property rights passed by the courts in India.

1. Bajaj Auto Ltd. v.TVS Motors Comp. Ltd. (2010) Madras HC³

This case relates to a controversy that had arisen over the unauthorized use of patented DTS-i technology. In this case, the plaintiff Bajaj Auto prayed for issuing a permanent injunction for stopping the defendant’s TVS Motors from using its patented technology in any form and had also sought damages from them. The issue here was related to using of twin spark plug technology inside the internal combustion engine by the defendant.

In this case doctrine of pith and marrow also known as the doctrine of equivalents was applied. The doctrine applies to situations where despite there is no apparent literal infringement been committed still, an infringement occurs due to the product or process infringing the patent has a structure or performs a function that is very similar and analogous to an element already been claimed in the patented invention and thereby performs same things in the same way as the patented element and achieves the same results.

A purposive construction was given to understand if the ‘novel feature’ constitutes ‘pith and marrow’ or not i.e. if the new feature constitutes claimed by the plaintiff in their patent is an essential feature of the invention or not.

This case is also important because in this case the apex court has made several observations and made certain directions regarding the speedy disposal of cases related to intellectual property. The Supreme Court has directed to hear intellectual property cases on a day-to-day basis and to decide the cases within 4 months from the date on which they were filed.

2. Novartis v. Union of India (2013) SC⁴

In this case, Novartis Pharmaceutical Company has applied for patenting a drug ‘Gleevec’ which was rejected by the Indian patents office. Novartis challenged all the rejections in the apex court.

It was held by the Supreme court that the substance that was sought to be patented by Novartis was a modification of an already known drug that was in the public domain since 1993 thus it lacks novelty requirement under patent law. As well Novartis has also not shown any evidence of any therapeutic efficacy of its modified medicine over the already existing drug which is a mandatory condition under section 3 (d) of Patents Act, 1970.

The court thus held that there was no invention done and a mere discovery of an already existing drug does not amount to invention. The application was accordingly dismissed by the court.

3. F. Hoffman-La Roche Ltd. v. Cipla Ltd. (2012) Delhi HC⁵

This case has arisen over a dispute where Cipla has filed a patent application for a generic drug ‘Erlopic’ which was manufactured using a polymorphic compound of Erlotinib Hydrochloride. While patent for Erlotinib Hydrochloride was already been given to another company Roche. Therefore, Roche has filed an infringement application against Cipla. But Cipla claimed that it had not used Erlotinib Hydrochloride in its medicine ‘Erlopic’ but had only used a polymorphic compound of Erlotinib Hydrochloride.

It was finally held that Cipla has infringed the patent of Erlotinib Hydrochloride granted to Roche as any preparation of a polymorphic compound of Erlonitibactually first does involve the manufacturing of Erlotinib Hydrochloride. The patent application of Erlotinib Hydrochloride also has stated that its compound form can exist in different polymorphic forms and any such forms will be covered by its patent.

4. Bayer Corporation vs Union of India (2014) Bombay HC⁶

Bayer Corporation patented a cancer medicine ‘Nexavar’. Indian patent office exercised its rights and granted a compulsory license of Nexavar to Natco Pharma. Ltd. for producing a generic version of it. The patent office has also directed Natco to pay royalties to Bayer, to donate 6000 free medicine to the public, to manufacture the medicine locally, and to sell the medicine only in India and not to assign manufacturing of it to others.

Meanwhile, Bayer was manufacturing the same medicine for a comparatively higher price than what Natco offered to the public. Aggrieved by the patents controller’s decision Bayer moved to IPAB (Intellectual property appellate board) and filed an application which got rejected. Bayer now filed an appeal before the board which was also rejected.

Bayer Corp. then filed an appeal before The Bombay High Court which held that compulsory licensing of life-saving drugs falls within the right of the Indian patents office as well as the rule of making available of patented drugs at an affordable price for the general public should be maintained as per section 82(1)(b) under The Patents Act, 1970. The judgment passed by The Bombay High Court was later upheld by The Supreme Court.

5. Yahoo! Inc. v. Akash Arora &Anr(1999) Delhi HC⁷

This case relates to unauthorized registration and use of internet domain names that are similar and identical to registered trademarks and service marks also known as ‘Cyber Squatting’.

In this case, the defendant was using a domain name ‘Yahoo India’ which was extremely identical to that of the plaintiff’s ‘Yahoo!’. It was held that the defendant’s ‘Yahoo India’ has the potential to confuse and deceive internet users into believing that both are the same and belong to the same ‘Yahoo!’. The court explained that a disclaimer in this regard by the defendant to make people aware is not sufficient and it is immaterial if the term ‘Yahoo’ has a dictionary meaning as over the years Yahoo! has already acquired ‘distinctiveness’ and ‘uniqueness’ as required under the trademark law. The High Court has also held that domain names on the internet are used by business groups for the same purpose as any trademark or service mark.

6. Clinique Laboratories LLC &Anr v. Gufic Ltd. &Anr. (2009) Delhi HC⁸

This case relates to the infringement of trademark and passing off i.e. selling goods by falsely misrepresenting the goods to belong to some other.

In this case, Plaintiff had a registered trademark ‘Clinique’ and it came to know about a similar trademark ‘Derma Cliniq’ registered by the defendant. The plaintiff then filed a petition for cancellation/rectification before the Registrar of Trademarks. The plaintiff later filed an application before the court for an injunction regarding infringement of its trademark by the defendant and for restraining the defendant from passing off its goods as that of the plaintiff’s.

However, under section 124 (1) of The Trademarks Act, 1994 any suit for infringement should be stayed by the court till the cancellation/rectification petition is finally decided and disposed of by the Registrar of Trademarks. The plaintiff thus filed for a stay of the present suit and had sought permission to apply for removal of the trademark from the trademarks register which was registered by the defendant.

But, at the same time section 124 (5) of The Trademarks Act, 1994 makes a provision where the court has the authority to pass an interlocutory order. Thus, the court exercising this power held that it has the authority to pass interlocutory orders in the form of injunction, attachment of property, the appointment of a receiver, order for account keeping, etc. if is prima facie convinced of invalidity of a registered trademark.

The court held that identical and similar trademarks, though registered later; can be challenged by the owner of an earlier registered trademark. The court further held that pending rectification/cancellation petition or infringement suit the court is allowed to pass such interim orders as it deems necessary and proper. The court therefore upon being primarily convinced about the invalidity of the registration of the defendant’s trademark restrained the defendant from using its registered trademark till the disposal of a rectification/cancellation petition by the Registrar of Trademarks.

7. Star India Pvt. Ltd. v. Moviestrunk.com &Ors. (2020) Delhi HC⁹

In this case, Plaintiff Star India was a film production and distribution company while the defendant owned online streaming websites. The case relates to unauthorized streaming of the plaintiff’s film on the defendant’s streaming website. The plaintiff filed a suit for infringement of copyright.

The Delhi High Court held the defendant liable for infringement of copyright of plaintiff work for streaming its copyrighted content without the knowledge and consent of the plaintiff. The Court granted injunction and damages and thus Plaintiff’s exclusive right to exploitation was re-ensured.

8. Marico Limited v. AbhijeetBhansali(2020) Bombay HC¹⁰

In this case, the defendant who is a YouTuber and a social media influencer has made objectionable and disparaging comments on ‘Parachute hair oil’ in one of his videos and has used the parachute hair oil bottle in his video.

The plaintiff Marico Ltd. who is the owner of Parachute Oil Brand has applied for the removal of the video on the grounds that the YouTuber through his video has harmed the goodwill of the company and has also violated its trademark ‘Parachute’.

The court while interpreting Section 29 of The Trademarks Act, 1999 held that defendant has violated the exclusive trademark rights of the plaintiff by not seeking prior permission or consent of the plaintiff, and thus, the court ordered the removal of video.

9. Bajaj Electricals Ltd. v. Gourav Bajaj &Anr.(2020) Bombay HC¹¹

In this case, the plaintiff was a duly incorporated company and a part of Bajaj Group conglomerates of businesses and industries. The defendant was a person who had the word ‘Bajaj’ as title in his name. The defendant in his 2 electrical stores and website had used the name ‘Bajaj’. He has also used the expression ‘Powered by: Bajaj’ on his product labels.

The plaintiffs proved that their name has become a well-known mark over several decades and therefore only they are now entitled to use it and not the defendant or anybody else. The defendant claimed legitimate use of his name but, the plaintiffs also proved the malafide intention of the defendant over the use of the name on the labels of his products where he has tried to deceive people by using the name ‘Bajaj’ in such a way that made people believe as if his products are endorsed by The Bajaj Group.

The court agreed with the grounds raised by the plaintiffs and thus passed an interim injunction against the use of the trademark by the defendant on their products as well as in their domain name.

10. ISKON v. Iskon Apparel Pvt. Ltd. (2020) Bombay HC¹²

The plaintiff ISKON has filed the case on infringement of its trademark by the defendant, where the defendant has used the word ‘ISKON’ on its products and has also passed off his brand. The plaintiff has also sought to get their trademark declared as a well-known mark.

It was held that the defendant has clearly infringed the trademark of the plaintiff and has also passed off his brand by deceiving people and giving them a false belief that its products are associated with the plaintiff. The court also held that plaintiff’s trademark has satisfied all the criteria to become a well-known mark.

References

1. Page 281 Book: Studies in Jurisprudence and Legal Theory by Dr. N. V. Paranjape
2. https://www.wipo.int/about-ip/en/
3. https://indiankanoon.org/doc/248352/
4. https://indiankanoon.org/doc/165776436/
5. https://indiankanoon.org/doc/123231822/
6. https://indiankanoon.org/doc/28519340/
7. https://indiankanoon.org/doc/1741869/
8. https://indiankanoon.org/doc/99626708/
9. https://www.casemine.com/judgement/in/5e55cdc49fca193984fd7305
10. https://indiankanoon.org/doc/79649288/
11. https://indiankanoon.org/doc/101671569/
12. https://indiankanoon.org/doc/83405343/

Written by Naman Practising Advocate at Patna High Court and student at Gujarat National Law University.