Free Consent and factors making it ‘not free’ in the Indian Contract Act, 1872

Posted on May 7, 2020

This post is written by Anushree Tadge, 3^rd year law student of ILS Law College, Pune, she tries to explain briefly what the concept of free consent is and why it is regarded as foundation stone of other Acts like Transfer of Property Act, Company Act, Family Laws etc.

Introduction to ‘Free Consent’

‘Consent’ as a word is heard very often by individuals around the globe, as the feeling of ‘individuality’ is given importance more and more, consent as a provision is also evolving. Derived from the Merriam Webster dictionary, ‘Consent’ is explained as ‘compliance in or approval of what is done or proposed by another.’
In simple words a voluntary agreement of one party to the proposal of others in order to reach or not reach the desired motive. Now even consents are of different types, these include implied, expressed, informed consent and unanimous consent. But, again for a person to provide consent, he/she should not be diagnosed with a mental disorder, age more than 18 years etc along with the major factor being the consent should be voluntary and not affected by any form of coercion. Fraud, undue influence.

‘Free Consent in the Indian Contract Act, 1872’

Section 13 of the Indian Contract Act, 1872 (hereinafter referred to as Act) defines the term ‘Consent’ as Two or more persons are said to consent when they agree upon the same thing in the same sense.
For example, suppose there are two parties in a contract, A and B. It was seen that there was some land and “A” put a proposal to sell. “B” after being made aware of this proposal, analysed that it was the perfect opportunity, agreed to it. In this case, both parties showed their consent.
The principle of consensus-ad-idem is to be followed in contractual agreements.

Section 14 of the Act states that Consent is said to be free if the following factors are satisfied:
If the consent is free from coercion.
If the contract is not done under any undue influence.
If a contract is performed without any fraud.
The contract should not complete with any misrepresentation.
The contract should not be agreed to by mistake.
If there is no consensus, moreover free consensus between parties is very vital for the contact to be binding and legitimate. In case there is no free consent, the voidability of the contract depends if the aggrieved party wishes to challenge the legality of the contract leading them to be ‘voidable’ in nature.

Coercion

According to Section 15, it is the committing or threatening to perform, any act that is forbidden by the Indian Penal Code, 1860; or (ii) the unlawful detainment or threatening to do the same of any property, to the prejudice of any particular person, with the intention of leading any individual to enter into an agreement.
In the famous case of Ranganayakamma Vs. Alwar Setti (1889), A Hindu Widow of 13 years, was coerced into adopting a boy under the threat of not allowing cremation of her husband’s death. Following which, the widow feared and adopted the boy. Later she even applied for cancellation of the adoption. It was held that the adoption was voidable at her option as her consent was not free it was rather obtained by coercion is an offence under Sec 297 of the Indian Penal Code.
Now for cases where coercion is obtained by threats like ‘filing a suit’, it will also fall under the same category, because it is explicitly stated as an offence by the Indian Penal Code. In another interesting case of Ammiraju v. Seshamma, the issue was put forth whether ‘threat to commit suicide’ was a punishable offence? The Court ruled otherwise and put forth that such kind of coercion was not punishable by the IPC,1860.

Undue Influence

The second factor which makes ‘consent’ of particular cases to be compromised is Undue Influence. Section 16 (i) of the Act, defines undue influence as to where if the relationship existing between the parties are of such nature that one of the parties is in a superior position or can dominate the will of the other easily and actually uses that position to obtain an unfair benefit over the other person or force him/her to act particularly in a contract is ‘Undue Influence’.
Section 16 (2) of the Act states that a person is deemed to be in a position to dominate the will of another where:
He holds a real or some apparent authority over the other person. For e.g. Master and Servant
There exists a fiduciary relationship based on trust and confidence for e.g. guardian and ward
Contract with a person experiencing mental distress/ disorder/ weak intelligence/ illiterates etc.
The burden of proof lies on the party at whose end the contract seems voidable, there has to be compulsory proving of the fact that there existed a relationship where one party could dominate another and the party actually used such position to obtain an unfair advantage.

Fraud

The third way by which consent is unfree can be explained is Fraud. The term ‘fraud’ is defined in Section 17 of the Act as follows:
“Fraud includes any of the acts committed by one of the parties in a contract or by anyone of his agents, with an intention to deceive the other party so as to lead him to enter into the contract:

i) the suggestion of a fact, that is not true,

ii) the active concealment i.e. hiding of a fact.

iii) making a promise without any actual intention of performing it;

iv) any other act in order to deceive; any act or omitting the law which especially shows it to be fraudulent.”

A very interesting point to note is that the Section 17 says “Mere silence as far as facts are concerned are likely to affect the willingness of an individual to enter into a contract is not really fraud”. Although this rule has an exception to circumstances where there is a duty to speak and if the ‘contract is made in good faith.’

Misrepresentation

A representation, when performed in a wrong manner, innocently or intentionally, is called ‘misrepresentation’.
Misrepresentation should be made innocently, absolutely believing it to be true and without any intention of deceiving the other party.
Misrepresentation should be pertinent to the facts of the case. A mere expression of one’s opinion is not stating of a fact. It should also be used in inducing the other party into entering the contract. Like all the other forms explained in this post, even misrepresentation is voidable at the part of the aggrieved party, he can challenge the contract to be null and void or ask for an honest performance of the same.
However, under few circumstances the aggrieved party loses the right to rescind the contract, these are-
If the truth could be discovered with ordinary diligence.
If the consent is not actually induced due to misrepresentation.
If the parties cannot be led back in such a way that they acquire their original positions.
Even, after coming to know about misrepresentation if the party acts in such a manner that it shows it’s an affirmation to the contract, the party, in such case will automatically lose the right to rescind.

Mistake

Mistake is an incorrect assumption turning into a belief concerning anything.
Mistakes are of two kinds- Mistake of Law and Mistake of Fact.
Mistake of law can be of two types further

(ii) mistake related to foreign laws

(i) mistake related to the law of the land

A mistake of fact can also be divided into two –

(a) bilateral mistake.

(b) unilateral mistake.

Bilateral mistake may relate to topics like the subject-matter where both parties are combinedly at fault. Mistake of fact regarding subject-matter may be the existence of, the identity of, the title of, quantity of, quality of the subject-matter, or even its price. Such a mistake makes the Contract void.
A unilateral mistake is when only one party is at fault by virtue of the assumption that there is the same sense of subject matters in both parties. For e.g. A wants to sell a horse but B thinks it’s a pony.

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Citizenship in India

Posted on April 28, 2020

This article has been written by Nidhi Chillar, Marketing Head and Co-editor at Lexpeeps.in

INTRODUCTION

Several categories of the Citizens have been defined under Part – II of the Constitution of India. A citizen of the state is a person who enjoys full membership of the state. The Citizens of the country are different from aliens and mere residents. Citizens have all the rights provided by the state which may not be available to aliens and residents. For example, in India, the aliens don’t enjoy all the Fundamental Rights, the right to vote is available to the citizens alone. Citizenship inheres only in natural persons and not in juristic persons, like corporations.

What is Citizenship

Citizenship refers to the state of being recognized as a citizen of the state. Citizenship ensures that the person is a member of the state. It further provides the social and political rights to the citizens. A citizen has the right to take part in the governance and administration of the state.

Difference between Citizenship, Nationality, Overseas Citizenship and Resident

Nationality

Nationality refers to the status of belonging to a particular nation. Thus, the person enjoys the nationality of the place where he is born. For example, a person born in India, automatically acquires Indian Nationality, however, in order to obtain the citizenship of a country, a person is required to apply for it, whereas, the nationality is automatically vested on a person, he need not apply for it. A national of one country may apply for the citizenship of a different country. Thus, one can change his Citizenship but can not alter his/her nationality.

Overseas Citizenship

Overseas Citizenship is granted to the people who are not ordinarily the citizens of the country. Thus, the person of India who migrated to other countries except for Pakistan and Bangladesh and has obtained foreign citizenship is awarded overseas citizenship. This should not be confused with dual citizenship. Overseas citizenship is provided only if the home country allows dual citizenship in some form or the other. However, the Overseas Citizens cannot enjoy all the rights which are provided to the citizen of the country for example

1. Overseas don’t have the right to vote.

2. He is not eligible to obtain an Indian passport.

3. One can not contest the elections of Lok Sabha, Rajya Sabha, Legislative Assembly or Legislative Council.

4. A person can not hold constitutional posts like President, Vice-President or the Judge of a Court.

5. He is not eligible to apply for government jobs.

6. He can not acquire the agricultural or plantation property but can inherit the same.

Resident

A resident is a person who resides in a country. A resident is not always the Citizen of the country. A foreign national residing in India can be termed as a Resident of India but not necessarily the Citizen of India unless he acquires Citizenship.

What are the different modes of acquiring Citizenship

Article 5, 6 and 8 of the Indian Constitution specifies certain methods by which a person can acquire the citizenship of India. These are discussed below:

By Domicile

Article 5 lays down two conditions for citizenship

A person must have the domicile in the territory of India before the commencement of the Act.
He must fulfil any of the three conditions given below:

He must have born in the territory of India, or
Either of his parents must have born in the territory of India, or
He must have been ordinarily resident in the territory of India for not less than 5 years immediately preceding such commencement.

‘Domicile’ refers to the intention of residing in a country for an indefinite period.

The domicile is of two types:

Domicile of Origin
Domicile of Choice

1) Domicile of Origin

Every person is born with the Domicile of Origin. The domicile of origin is received by him at the time of his birth. The basis of obtaining such domicile is the paternity or maternity. Thus, a child will acquire the domicile of the same country to which the father was domiciled at the time of the child’s birth. The domicile of origin continues until a person acquires the domicile of choice. Once the domicile of choice is suspended then he again obtains the domicile of origin. In the case of a posthumous child, the child will have the domicile of the country to which his father was domiciled at the time of death.

2. Domicile of Choice

A person can acquire the domicile of choice by fulfilling two conditions:

a) Residing in a particular place

(b) Intention to reside permanently or for an indefinite period.

It must be noted that a child whose parents are unknown gets the domicile of the country in which he is found. After the marriage, the wife acquires the domicile of the husband. However, the case is different if they are judicially separated. In India, a person can not have two domiciles.

Citizenship by Migration

Article 6 of the Constitution of India provides that any person who has migrated to the territory of India from Pakistan shall be the Citizen of India at the commencement of the Constitution of India. For the purpose of Citizenship, people have been classified into two categories:

Those who migrated to India before 19th July 1948
Those who migrated India after 19th July 1948

The people who have migrated to India before 19th July 1948 have to fulfil two conditions in order to obtain citizenship:

The person migrated to India or either of his parents or either of his grandparents was born in India as defined in the Government of India Act, 1935.
The person migrated to India has been ordinarily residing in the territory of India since the date of the migration.

The people who have migrated to India after 19th July 1948 have to fulfil the following four conditions

The person migrated to India or either of his parents or either of his grandparents was born in India as defined in the Government of India Act, 1935.
The person has applied for citizenship.
He has resided in India for 6 months
He has been registered as a citizen of India by the officer appointed by the Government of the Dominion of India.

Citizenship by Registration

Article 8 of the Indian Constitution provides that the persons whose parents or grandparents were born in Indian but residing abroad can obtain the citizenship of India by registration.

Persons Voluntarily acquiring citizenship of a foreign state

Article 9 provides that any person who has voluntarily acquired the citizenship of a foreign state shall not remain the citizen of India. The cases of voluntary acquisition of foreign citizenship shall be dealt with by the Government of India under the Citizenship Act, 1955.

Rights of Citizens

Certain rights are available only to the citizens of India and not the aliens or foreign nationals. These rights are:

Right to Vote
Prohibition of discrimination on the basis of race, caste, sex, place of birth. (Article 15)
Right to Equality of opportunity in matters of public employment. (Article 16)
Protection of Freedom of Speech and Expression. (Article 19)
Protection of language, script or culture of the minorities. (Article-29)
Right of minorities to establish and administer educational institutions of their choice.

Power of Parliament to make laws with respect to citizenship

Article – 11 of the Indian Constitution provides that the Parliament can make laws related to the acquisition and termination of citizenship and matters relating to citizenship. In exercise of this power, the parliament enacted the Citizenship Act in 1955. Several changes were made in the Act in 2003 and 2005 to introduce the concept of overseas citizenship of India.

References

V.N. Shukla, Constitution of India 44 (13th ed. 2017)
State Trading Corpn. of India Ltd. v. CTO, AIR 1963 SC 1811
Anmol Goyal and Sumit Gyal, Concept of Domicile, 1 JUSIMPERATOR, 5 (2017)
Pradeep Jain v. Union of India, (1984) 3 SCC 654
D.P. Joshi v. State of Madhya Bharat, AIR 1955 SC 334
Kulathil Mammu v. State of Kerala, AIR 1966 SC 1614
State of U.P. v. Rehmatullah, (1971) 2 SCC 113

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