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

INTRODUCTION

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

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

STRICT LIABILITY

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

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

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

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

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

ABSOLUTE LIABILITY

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

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

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

THE DIFFERENCE

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

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

REFERENCES

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

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

INTRODUCTION

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

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

1. United States of America

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

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

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

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

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

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

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

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

2. The United Kingdom

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

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

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

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

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

3. IRAN

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

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

4. Australia

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

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

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

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

6. Canada

● Federal system with a strong central government.

● Power-sharing between the central government and state governments

● The advisory jurisdiction of the Supreme Court

● Appointment of State governors by the Centre

7. Soviet Union (USSR)

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

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

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

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

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

11.Government of India Act 1935

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

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

Framing of the Constitution

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

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

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

EVIDENCE

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

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

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

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

BURDEN OF PROOF

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CONCLUSION

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

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

What is Delegated Legislation?

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

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

What exactly means by the term ‘Delegated Legislation’?

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

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

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

Is it prospective or Retrospective?

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

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

What controls it?

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

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

Benefits

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

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

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

Disadvantages

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

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

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

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

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

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

What cannot be delegated?

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

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

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

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

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

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

Conclusion

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

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

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

References

Black’s Law Dictionary
Manupatrafast.com

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

INTRODUCTION

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

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

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

ESSENTIAL REQUIREMENTS FOR ONLINE CONTRACTS

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

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

DEVELOPMENT OF THE CONCEPT OF ONLINE CONTRACTS

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

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

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

LAWS THAT GOVERN THE ONLINE CONTRACTS

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

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

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

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

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

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

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

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

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

JUDICIAL RECOGNITION OF ONLINE CONTRACTS

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

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

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

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

CONCLUSION

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

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

REFERENCES

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“Wars are not won in a day”

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

Introduction

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

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

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

History

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

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

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

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

Current Scenario

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

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

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

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

Cause and Effects

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

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

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

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

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

Conclusion

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

References

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This article has been written by Yash Dodani, a first-year student at NALSAR University of Law. He has tried to explain the similarities and differences between Law, Justice and Morality.

The three terms, viz, law, justice and morality are used interchangeably in terms of a common man. However, in legal terms, these terms are used differently. Although they have a similarity but they have differences too. We will try to understand the similarity and the differences. But let us first try to understand the meaning of all these terms separately to get more clarity in the parts where I will try to locate the similarity and the differences.

Law

What is Law?

Now when everyone will try to find the definition of the term Law, we will face a lot of problem to find a concrete definition. Law is that vast area where the definition is next to impossible to be accepted by the universe as a single definition. Law can be anything from the written statutes to the unwritten rules that govern the behaviour of the society from the ancient times. However, the Jurists have tried to find a working definition of the Law by taking something as a base. And that thing can be ‘nature’, ‘source’, ‘effects’ etc.

The society plays a major role in shaping of the law. Laws can’t be made against the will of the society. If any law is made against the society, the society will resist the law and will try to disobey it. The laws are made by the society, and the law govern the society in the sense that the law tells the society what they should do and should not do as a part of society. The society also acts as a part of the law, mostly in the unwritten manner. There are various things which we should do according to the rules of society, and if we don’t do so, the society will look down to us. For example – respecting the elders is an unwritten rule, which is not told by any law but told to us by the society.

Law is a social science which runs by the society. The law of any state cannot be rigid. It is because of the social changes by the time. There can be one offence at a particular time or place, but after some time, may it be a no offence? If the law is so rigid that it can’t accommodate itself with the changing society, that law is bad. If the law is so changing, there can’t be any concrete definition of the law. Hence the law can’t be defined by a single definition. To define law the analysis of various legal concepts against various disciplines like sociology, political science, history, psychology, economics is needed to be done with the element of logic and practicality, to meet the ends of justice.

Justice

The justice is a very age-old concept in the society. It can be done through law or without the law. When I say without the law, it means that justice can be administered without a law. The justice can be administered under the general principles of giving justice which are independent of the law. Every person is expected to live peacefully. Without the justice an orderly society is unthinkable. These lines were said by Salmond. Justice come up with rights, duties and equity which then after takes the shape of laws.

The justice ensures that there is a uniformity in the interpretation of the law [if any] and in absence, do justice to the innocent party in whatever way feels suitable. it expects everyone to be Impartial and just to others as well.

Justice in the Modern society

The modern law concept of justice is called as ‘Justice according to Law’. It implies that justice can be given without law as well. As various prominent authors have called it as ‘Rule of Law’. It also means that no one is above law. Law is the supreme rule in the modern society.

Civil Justice

The civil justice system involves the protection of rights in the first place and not the punishment. Just to give some sort of compensation, the court orders to give some amount of damages to the innocent parties. This ensures that they will refrain from committing the same wrong again.

Criminal Justice

The main aim of the criminal justice is to punish the offender. The crime is so harsh that if the offender is just asked to compensate the innocent party, it will not ensure that people will not commit the crime again and again.

There are various types of theories of punishment which were/are used by the courts in administrating justice and to reduce the crime.
1.Deterrent Theory
2.Preventive Theory
3.Reformative theory
4.Retributive theory
These are the punishments which are used to punish the offender
(For details on theories, visit my article on Theories of Punishment)

Morality

In the ancient time, there was no distinction between Law Justice and morality. In Hindu law, there were Smritis and Vedas. The Greeks in the name of ‘natural rights’ formulated a theoretical moral foundation of law. The Romans recognized moral laws based on ‘natural law’. In middle age, churches came in power and Christian morals were considered as the basis of law.
The morals are nothing but established rules when the human life was made. It means that morals are the basic human rights. It also means that those abstract rights which are in the public interest.

The law derives its authorities from the supreme state and not the established morals. When the church was removed from the power, it was said that law and morals are different. Austin said in the 19th century that the law and morality are two different terms and the law has nothing to do with morality. But he being too positivist, forgot that there is a relation in the law and morals. But at the same time, they are not the same.

The Distinction between Law and Morals

Morals are not laws, but are an end in themselves. It is followed by the people because it helps in improving the character of an individual. After all, they are good to follow. There are acts which are morally correct but are wrong as per the law and vice versa. Morals are universal and are not affected by the state. Morals are more related to the individuals and not the group per se. Roscoe Pound said “ As to the application of moral principles and legal principles respectively, it is said that moral principles are of individual and relative application; they must be applied regarding circumstances and individuals, whereas legal rules are of general and absolute application”

S.No.	Law	Morals
1	Tries to make society an Ideal one, but is dynamic	Is an end in itself.
2	Related to the society and to make it ideal.	Related to regulate individuals.
3	The conduct is looked and punished.	They look into the motive to do act, that motive could be correct morally.
4	They are followed because the law is backed by sanctions.	They are followed just because it’s good for the individuals to follow.
5	State is responsible to enforce it.	Individuals are left upon to decide if they want to follow or not.

Relation between Law and Morals

There are indeed a lot of differences between the law and the morals, but it does not mean that there is no sort of similarity. They are very closely related to each other. The type of law will determine how important the morals are to that particular law.

Morals are used to make the laws.
Morals are used to test the positive laws.
Morals as the end of the law.

Starting point of law

The law and morals have the same origin but have different developments throughout the time. There were common things between law and morality. The sanctions which were charged due to breaking of the law or the morals were the same. But after some time, the state thought that some things should have more sanctions and confided things, and this came out to be ‘law’.

The ruled which were for the ‘good’ of humanity but the state could not ensure its observance were left as they were. These are called ‘moral’. Thus, it could be said that law and morals have a common origin, but diverge in their development. Many rules are common to both of them such as NOT killing a person, NOT stealing.

Queen v/s Dudley and Stephen’s Case: 14 Queens Bench Division 273 (1884)

This is a very leading case in the English Law. This case features the need/necessity to commit an act to save the life of shipments. The facts are very interesting and the reasoning of the court is equally good. The defendants, in this case, were travelling in a ship to reach a particular purpose. However, in the middle of the journey, there was a thunder broke out and they were stuck in the sea. They stuck in so long that they ate their whole food and there was nothing left for them after some time. It was so worse that they were trying to however live somehow. But after some time, there was nothing at all left. With them, there was a boy of about 17 years old. That boy was sick and the other members of the ship thought that he is young and sick and might die anytime. And then they killed him and ate his flash. When they reached the destination, the police arrested him and charged for murder. The defendants took the defence of necessity.

The court held that the person can’t take the life of another to save his own life and was considered as morals. But the court decreased the punishment from death to life imprisonment.

Mr X v/s Hospital Z (1998) 8 SCC 296

Another interesting case on the front of morals, where the court again brought the similarity between the morals and the law. The facts were that a person had HIV+ he was about to marry a girl. But the hospital authorities gave the information of him being HIV+ to the girl whom he was about to marry. The boy filed a case against the hospital authorities and claimed that they should not have revealed the information without the consent of the boy. The hospital authorities claimed that they have done this on the moral grounds and hence they should not be held liable.

The court here held that the hospital authorities were not liable because the right of Ms A to be informed about the safety of her life will override the right of Mr X’s to privacy. The court said that in the public interest, there cannot be upheld of individual rights as it will be against the morals and not always law should be considered. The following lines were said.

“As a human being, Ms. ‘Y’ must also enjoy, as she is entitled to, all the Human Rights available to any other human being. This is apart from, and, in addition to, the Fundamental Rights available to her under Article 21, which, as we have seen, guarantees “Right to Life” to every citizen of this country. This right would positively include the right to be told that a person, with whom she was proposed to be married, was the victim of a deadly disease, which was sexually communicable. Since “Right to Life” includes right to lead a healthy life to enjoy all faculties of the human body in their prime condition, the respondents, by their disclosure that the appellant was HIV (+), cannot be said to have, in any way, either violated the rule of confidentiality or the right of privacy. Moreover, where there is a clash of two Fundamental Rights, as in the instant case, namely, the appellant’s right to privacy as part of right to life and Ms. ‘Y’s right to lead a healthy life which is her Fundamental Right under Article 21, the RIGHT which would advance the public morality or public interest, would alone be enforced through the process of Court, for the reason that moral considerations cannot be kept at bay and the judges are not expected to sit as mute structures of clay, in the Hall, known as Court Room, but have to be sensitive, “in the sense that they must keep their fingers firmly upon the pulse of the accepted morality of the day”

Morals as a test of positive law

Morals can be used to check if the law is being more positive or not. If the law will not consider morals, it is very positive. But it is not that the positive laws will not be binding, laws are made to be binding on the people. In those laws where strict liability will be read, we can’t say that it will consider morals in determining the cases. Morals are used to test the extent to which laws are positive.

Conclusion

Hence the law justice and morals have a difference but at the same time are related to each other. Morals have often been considered the end of the law. Many jurists have defined law based on ‘Justice’. Thus, there is a relationship between law justice and morality. Most jurists say that the end of the law is to secure ‘justice. Justice has more or less been defined in the terms of ‘morals’. Thus, the law is used to give an idea of both morals and justice.

In modern terms, there is a lot of difference between the law and the morals, justice being the base of law.

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This post is written by Anushree Tadge, 3^rd year law student of ILS Law College, Pune, she tries to explain briefly what 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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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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