Tag: #legalarticle

Introduction

Tort is a civil wrong, meaning it is a wrong committed against a person. Tort comes from the Latin word “tortum,” which means “crooked” or “twisted.” It is equivalent to the English term ‘wrong’ in this sense. There are two kinds of law: civil and criminal. Tort and contract law are two subsets of civil law. It’s essentially a violation of a legal obligation. It violates the legal rights of others. A tort happens when someone intentionally or carelessly harms another person.

Civilization and law coexist. It is not possible for one to exist without the other. If one thrives, the other develops as well, and if one declines, the other suffers. As a result, tort law was created to deal with everyday offenses.

The Tort Law can be traced back to the Roman precept alterium non-laedere. The maxim means “not to harm another,” implying that no one should be harmed by their actions or words. This maxim is similar to the maxims of honesty vivere, which means “to live honorably,” and suum clique tribuere, which means “to render to every man that which belongs to him,” or “to bring fairness to every person.” The development of tort law can be traced back to these three maxims.

What is Tort according to jurists?

Salmond defined tort as, “It is a civil wrong for which the remedy is a common-law action for unliquidated damages and which is not solely a violation of contract, trust, or other essentially equitable obligation.”

Winfield mentions, “Tortious liability comes from the breach of a primary legal obligation: this duty is owed to all individuals, and its failure is redressable by an action for unliquidated damages,” Winfield says.

The definitions of Winfield and Salmond are incompatible. The practical point of view is represented by Salmond’s definition, but the theoretician point of view is represented by Winfield’s definition. Salmond’s point of view is preferred by lawyers, but Winfield’s is preferred by students. Furthermore, Salmond’s perspective is narrower, whereas Windfield’s perspective is larger.

Application of English Law of Torts in India

In India, tort law is based on English tort law.
The English Law of Torts has a significant influence on Indian tort law, despite the fact that the act has been changed to reflect Indian legislation. When the British ruled India, they established their own set of rules and procedures for administering justice. Jimha, which means crooked in Sanskrit, was believed to be akin to “tortious of fraudulent conduct” in ancient Hindu law. At the time, the scope of British tort was limited.

Because the Indians were utterly uninformed of the English laws, they were found to be unjust and inequitable. It was difficult to administer Indians in the early days of British law since there was an English Judge who had to deal with a case in a foreign language. As a result, they resolved to draught an Indian Tort Law based on English concepts in order to avoid chaos. They chose to set up courts in India in the 18th century after studying the Indian laws at the time and obtaining the necessary approval.

Mayors Courts in the Presidency Towns of Calcutta, Madras, and Bombay were the first courts established by the British in India. These courts were subject to English statutes and Acts, which were then implemented in England.
The courts established that “justice, equity, and good conscience” were the guiding principles at the time. The Privy Council understood the phrase “justice, equity, and good conscience” to include norms of English law that are suitable to Indian society and circumstances. All of this meant that the High Courts of Bombay, Calcutta, and Madras adhered to the Common Law of Torts, while the other courts applied the principles of justice, equity, and good conscience.
Also, when looking at Indian decisions, Justice Bhagwati stated in M.C. Mehta v. Union of India,

“In a highly industrialized economy, we need to develop new ideas and lay down new rules that will effectively deal with new challenges that occur.” We cannot allow our judicial thought to be shaped by the law as it currently exists in England, or for that matter, in any other country. We are absolutely open to receiving illumination from any source, but we must first establish our own jurisprudence.” We can infer from the words that Justice Bhagwati recognized the importance of having one’s own law and how it contributes to the nation’s growth.”

The main purpose of Law of Torts in India

The primary goal of tort law is to provide compensation to people who have been injured. Though, in current times, the goal is to distribute losses among those who are connected in some way.

Furthermore, some authors argue that Tort Law is more concerned with punishing than compensating. For the purpose of Torts, everyone has their own point of view. The violation of a general duty is a common ingredient in both crimes and torts. Murder, robbery, burglary, and other major crimes are all under governmental supervision. The state has power over all common wrongs in Tort Law as well. Individual harm is thought to be equivalent to societal harm.
As a result, the primary goal of tort law is to punish wrongdoers and foster social peace.

Reasons for the slow development of Law of Torts in India

In comparison to other countries, India’s tort law is not well developed. Even the Indian Tort Law does not have a codified version. There are several reasons for India’s sluggish development of tort law, some of which are stated below:

1. The law is ambiguous. People face a great deal of uncertainty because the legislation is not codified and is still in its early phases of development. This is why only a small number of cases are filed under Indian Tort Law. Furthermore, there are few precedents, which adds to the vagueness of Tort law. The existing precedents are from English Tort law and cannot be applied to Indian law.
2. There is a general lack of political awareness among the general public. Because most people are unaware of their rights, tort law is rarely employed in the country. This issue arises as a result of India’s widespread illiteracy, which also causes people to avoid going to court to exercise their rights. People who carry out their responsibilities are given more weight than those who demand their rights.
3. Why do people disregard their legal rights? This is due to a lack of awareness of their rights and the country’s high illiteracy rate. Because of their illiteracy, people are unaware of their rights and are hesitant to seek redress through the courts.
4. Poverty continues to be a factor in India’s delayed development of tort law. The majority of India’s population is economically poor, and as a result, they are unable to afford the hefty costs of litigation. This is still a major reason to avoid bringing a Tort case.
5. The court system is also highly expensive. The cost of going to court and hiring a lawyer is extremely significant. As a result, rather than approaching the court, the poor man chooses to suffer the torture. The cases are likewise handled in a molasses-like manner. On the other hand, in England, the administration of justice is so cheap and quick that these types of cases are resolved in under a year. All of these issues contribute to the tort law’s delayed evolution.

The number of pending cases in India as of October 13, 2018, is depicted in the graph below.

The graph was created using data from the National Judicial Data Grid. Due to the sluggish evolution of Indian legislation, a considerable number of cases are still waiting.

Have Torts been Ignored in India?

The next stage will be to see if the Indian court system has disregarded tort law. Simply said, tort law has not been forgotten. The M.C. Mehta case, which established the absolute liability rule, the Supreme Court’s direction on Multinational Corporation Liability, recognition of Governmental tort by government employees, principles on the legality of the state, the evolution of the tort of sexual harassment, a grant of interim compensation to a rape victim, and award of damages for violations of human rights under writ jurisdiction are all examples of this.

Despite the fact that most areas of law, such as crimes, contracts, property, trusts, and so on, have been systematically organized, India’s lack of a torts code is notable. The work of Indian attorneys and judges has contributed significantly to the evolution of tort law. Tort reform has been advocated for about a century and a half, with the earliest support coming from Sir F Pollock in 1886, who drafted the ‘Indian Civil Wrongs Bill.’ The bill, however, was not brought up for consideration in the legislature.

The value of code cannot be denied, but it is vital to remember that tort law is still in its infancy, and codifying it would not only be difficult but may also stifle its progress. However, the lack of a code prevents torts from becoming the dominant mode of litigation. The evolution of tort law in India pales in comparison to that of other progressive countries, where tort law is substantially more mature.

As previously stated, codification of tort law at this time would be premature. A more prudent approach would be, to begin with, enactments in areas where case law is lacking. The subject of the government’s liability when it comes to torts committed by its workers is one of the first suggestions made by the Law Commission in this regard.

In the report of the commission led by MN Venkatachaliah CJ, the National Commission for Review of the Working of the Constitution (NCRWC) has also recommended a statute that makes the state liable for the torts of its employees (2002). The small volume of tort litigation in Indian courts, on the other hand, contributes considerably to why an Indian code on this branch of law may be premature. Currently, only a small percentage of tort lawsuits are ever brought to court. However, this is a catch-22 since until a code for tort law is developed, there will be few tort cases brought in courts because people have no means of knowing what they are getting into.

Concerns with Tortious Litigation in India

Despite the fact that India is regarded as a litigious country, the number of lawsuits filed is quite modest. This is because of the limits and roadblocks that have been placed in place, including prohibitive fees, lengthy delays, and inadequate harm grants. In recent years, there has been a notable increase in the number of cases completed, particularly in cases involving the administration. This is typically linked to India’s financial development and, as a result, increased awareness of legal rights.

Common law jurisprudence shaped the Indian legal system and was introduced to the Indian people in an uncommon way. Although the English tort law served as a model for its Indian counterpart, its application is still ambiguous and limited. Several decisions and cases involving defamation and contributions between joint tortfeasors plainly illustrate that India cannot and does not adhere to English common law.

The English tort law applied differentially to Presidency towns and the mofussil throughout the colonial era. Indian citizens are exempt from the champerty and maintenance statutes. In fact, only those provisions of English tort law that suit the local conditions in India have been upheld and are valid in India. Given this situation, determining whether a given English statute also applies in India is difficult.

It was also unclear whether a specific statute remained in force in India after being abolished or changed under English law. For such a question, there is no final answer. As a result, unless a judge decided otherwise, it was difficult to know whether aspects of English law were applicable in India. Tort law remained uncodified even after the Constitution took effect. Article 372 of the Indian Constitution states that legislation in effect immediately prior to the adoption of the Constitution remains in effect. Any rulings issued by English courts, on the other hand, are no longer required to be upheld by Indian courts.

These decisions may only have persuasive power at most. As a result, the state of tort law remains unchanged. Because English tort law cannot be applied generally to the Indian setting, Indian tort law as a whole remains ambiguous. Furthermore, there is still a discrepancy in the application of laws in Presidency towns against the mofussil.
Citizens do not have a clear knowledge of their rights and responsibilities before going to court. Lawyers are likewise constrained in how much assistance they can provide in this circumstance because many areas of the law are still uncertain. The judge presiding over the case also has a difficult assignment ahead of him.

It’s simple to understand why victims often accept the wrongdoings they’ve been subjected to without pursuing legal redress. Is there always a way to stand up for one’s rights? The explanation, according to Professor Northrop, could be found in the cultural contrasts between eastern and western nations. Compromise is encouraged in Eastern societies. Furthermore, Asian tribes have a reluctance to use Western, right-wing legislation to resolve their conflicts. As a result, when it comes to torts, there is very little litigation.

People have been skeptical of such sweeping generalizations for a long time, while also urging that we reconsider the need for tort law litigation in India and its repercussions. Such recommendations strongly propose that empirical research be conducted to evaluate the validity of such reasons, which are mostly based on sociological, civilizational, and cultural elements.

If there is one thing that is certain in today’s culture, it is that quality justice is not provided; rather, it can only be purchased at a hefty cost. This is not to imply that the court is corrupt; rather, it demonstrates how a common man cannot even imagine receiving proper recompense for the damages to which he is entitled. This is true because the adversary can always use his money or influence to get around our country’s complicated judicial structure.

The commoner, on the other hand, will face a chain reaction of procedural issues as soon as he approaches the judicial system with his grievance, which will absorb all of his money, willpower, and time. The aggrieved will be obliged to pay hefty lawyer’s fees, court fees, and other incidental charges just to file his claim in court. To the uninitiated, it may not seem true, yet his legal expenses in seeking to recover his losses might sometimes much outweigh the original amount of his claim.

Unfortunately for him, if he loses at the conclusion of the trial, he may be forced to pay even more money to the court, first as costs, and then to file an appeal in a higher court. We haven’t even discussed the length of time it takes to resolve a civil case in India. According to studies, courts in tortious litigation cases take an average of nearly 6 years to reach a judgment. So far, the shortest time it has taken for a tort case to be resolved in 5 years, while the longest time it has taken is 13 years. Even severely harmed people are discouraged from resorting to civil action due to the excessive costs and lengthy decision-making process involved in tort claims.

We have highlighted a few cases that have further discouraged those who have been wronged in order to show the court attitude in such scenarios where compensations must be paid. According to precedent, in a case where the plaintiff’s claim was for Rs. 10,000/-, he was only awarded Rs. 1/- in compensation. In another case, two civil actions were valued at Rs. 500/- apiece, but the court only granted the aggrieved parties Rs. 60/- and Rs. 50/-, respectively.

The Hon’ble Nagpur Bench of the erstwhile Bombay High Court determined that in a matter where the claim was for Rs. 11,300/-, the aggrieved would be satisfied with an award of only Rs. 315/-. In a case before the Hon’ble Madras High Court, a plaintiff filed a claim for Rs. 10,000/- but was only given Rs. 650/- in compensation. It should be noted that these examples are somewhat ancient, yet they have been mentioned to emphasize the Indian judiciary’s inclination to ignore tort proceedings and award grossly disproportionate amounts when contrasted to the plaintiff’s claims.

Major Breakthroughs in Tort Law in India

UPHAR CINEMA CASE –The Gateway to Tort Law in India

The Uphaar Cinema, located in a wealthy suburb in the center of the country, New Delhi, caught fire on June 13, 1997, due to a malfunctioning generator mounted by the Electricity Board in the theatre’s basement. The exits from the balcony were clogged due to the installation of unlicensed seats years ago. As a result, the occupants inside the theatre were unable to flee, and fifty-nine people perished and another hundred were injured.

In November 1997, all of the injured’s outraged family members established an association and filed a complaint in the High Court of New Delhi, represented by a volunteer lawyer. The group sought Rs. 22.1 crore in compensation and Rs. 100 crore in punitive damages, which would be used to establish a trauma center, making it the biggest demand in an Indian tort case to date.

Following that, in 2003, the court ordered Rs. 21 crores in compensation for the families of the deceased people, as well as Rs. 1.04 crore for the 104 injured theatre-goers. In addition, a sum of Rs. 2.5 crore has been approved for the establishment of a trauma center in this regard.

The multimillionaire theatre owners were then charged with criminal offenses, and the Sessions Court found them guilty and sentenced them to two years in prison. However, the aggrieved association, dissatisfied with the penalty, went to the Supreme Court in 2007, which maintained the convictions and enhanced the sentence.

In India, the Uphaar Cinema Case was a watershed moment for tort relief in catastrophes. It had well-organized and affluent appellants represented by a dedicated lawyer who did not charge for his services, as well as a case with no evidentiary issues.

However, fourteen years after the fire, on October 13, 2011, the Supreme Court reduced the damages awarded to the deceased victims to a fraction of their original amount, from 2.5 crores to 25 lakhs, a 90% reduction, and all government agencies charged with the fire were exonerated except the Delhi Electricity Board. Even when it was a win-win case totally in favor of the appellants who had been tortured by the incompetent authorities, the future of mass tort in India appeared dismal once again.

In 2014, the Supreme Court heard a new appeal in the criminal case of Uphaar. It upheld the Ansals’ convictions, i.e. the cinema owners who had previously been found guilty, but it couldn’t agree on the amount of compensation to be paid to the victims. Justice T.S. Thakur favored restoring the Ansals’ original punishment, but Justice Gyan Sudha Mishra favored awarding Rs. 100 crore as compensation for the establishment of a Trauma Center in the Uphaar Victims’ memory. The judge’s readiness to award such a large sum for a tort law case in India, far bigger in magnitude than had previously been contemplated, demonstrated the growth of mass torts in India.

INDIAN MEDICAL ASSOCIATION VS. V.P. SHANTHA– The Saha Case

In 1986, Parliament passed the Consumer Protection Act, which established a three-tiered consumer grievance redress system to give remedies for substandard “goods and services” across the country. In 1995, the Supreme Court ruled that “medical services” would fall under the Consumer Protection Act of 1986’s “goods and services” category. As a result, medical claimants no longer have to travel to court and pay high court fees, and they began submitting claims in Consumer Tribunals, which accounted for the majority of the cases handled by the Consumer Tribunals at the time.
From 2008 to 2014, the National Consumer Dispute Redressal Service delivered 154 medical malpractice lawsuits, accounting for 8% of its total judgments. Surprisingly, the claimants won over the medical practitioner in nearly 45 percent of the cases. From the moment the lawsuit was filed until the final verdict was reached, it took an average of 11.7 years.

An Indian-American couple traveled to Kolkata a year after the Uphaar tragedy to meet their relatives. The husband was a medical doctor, and the wife was a child psychologist who was 36 years old. The wife had a treatable but uncommon skin ailment and was admitted to the AMRI hospital, where she was cared for by a number of famous medical professionals. The treatment involved the administration of massive amounts of Depomoderol, which exacerbated the wife’s condition and finally led to her death.

Dr. Kunal Saha, the dissatisfied spouse, filed a complaint with the West Bengal Medical Council, which cleared the doctors. The spouse then filed criminal charges against the doctors under section 304A of the Indian Penal Code. The doctors were convicted by the West Bengal courts, but the Calcutta High Court overruled the District Court’s decision and exonerated them. Regrettably, the Supreme Court confirmed the Calcutta High Court’s decision regarding criminal responsibility.

Dr. Saha’s wife died as a result of the negligence of the three AMRI doctors, and a claim of Rs. 77 crore was made with the National Consumer Disputes Redressal Commission (NCDRC). The National Consumer Disputes Redress Commission (NCDRC) dismissed his claim and complaint in 2006. Dr. Saha represented himself in all of these proceedings, which cost him in a number of ways: (1) He had to travel 50 times from the United States to India as the case advanced. (2) Due to legal and travel expenditures, he declared bankruptcy in the United States of America. (3) He did not take up his academic position in Cincinnati, and as a result, his academic career was cut short.

Finally, the Supreme Court of India rejected the NCDRC’s ruling in 2009, and the matter was referred back to the National Consumer Disputes Redressal Commission to determine the amount of compensation. In October 2011, the commission finally awarded Dr. Saha damages of Rs. 1.5 crore. When the matter was appealed to the Supreme Court, a sum of Rs. 6.08 crores was awarded to Dr. Saha, directed against the doctors and the hospital, plus interest of 6% per annum, more than double the compensation previously awarded.

The Saha Case is a classic example of a one-on-one case that resulted in a milestone in Indian tort law. The Supreme Court granted increased damages because of the loss of a long career with a high American income that was harmed. The Saha case is an interesting reversal of the Bhopal Gas Tragedy, in which the perpetrator was an American Union Carbide Company and the victims were Indians, whereas the Saha case involved Indian wrongdoers and an American victim. We still don’t know if the broad tort damages based on monetary losses perpetuate gaps and inequality among the general public.

The Future of Torts in India – Conclusion

There is no empirical evidence to claim that India is a litigious nation. The truth is that Indian courts move slowly not because they are inept, but because there are too many cases for too few judges. We need to increase capacity in order to make our judicial system more strong, not just for civil cases, but also for criminal proceedings. Personal harm, which is addressed by tortious litigation elsewhere in the globe, requires significant attention in India, as has been adequately portrayed in this study. Tortious responsibility claims, both against the government and private parties, abound in the country. The procedure of approaching the court, on the other hand, is so delirious for the plaintiff that they are better off not going.

In general, as things stand now, those with money and privilege are able to buy their way out of the judicial system and avoid responsibility for their own negligent behavior. With little resources, it is the poor who must fight the system and the aggressor. This deplorable state of affairs necessitates a reassessment of tort litigation in India. Perhaps there is a need to constantly issue statutes that correctly deal with diverse tort law principles, rather than codifying and therefore making the entire branch immobile. A strong civil-litigation system will undoubtedly strengthen the government’s and citizens’ discipline, while also protecting human life and dignity. A strong civil-litigation system will undoubtedly strengthen the government’s and citizens’ discipline, while also elevating the value of human life and dignity for all people, not just the wealthy.

This article is written by Uday Todarwal.

Introduction

One of the primary players in India’s journey to prevailing in quick structure its economy has been the banking sector. Since our present legal framework for business exchanges has not stayed aware of developing strategic policies and monetary sector changes. This outcome in an extended recuperation of defaulted advances and an expansion in the number of nonperforming resources held by banks and monetary organizations. The Central Government laid out the first and second Narasimham Committees, as well as the Andhyarujina Committee, to look at banking sector changes. These committees surveyed the need for changes in the legal framework in these sectors. These committees, among others, have proposed new regulations for securitization that would permit banks and monetary organizations to take care of protections and sell them without the requirement for judicial activity.¹

In light of these suggestions, the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI) were passed by the Parliament on December 17, 2002. The motivation behind this act is to permit banks and financial organizations to expeditiously recover cash progress. The Act licenses banks and financial organizations to sell sold property to recover outstanding obligations that poor person been paid for quite a long time in spite of various updates. Non-performing assets (“NPA”) in the records of banks and financial foundations must be dealt with in much the same way. The property being referred to could be a private or business property that has been sold with a bank or financial establishment as security for the assets progressed. Before the execution of the SARFAESI Act, distressed parties, like banks or financial establishments, would record a common recuperation claim in common court, and the interaction would delay for quite a long time in light of the fact that the common suit was battled by the two sides. Considering this, the law-making body chose to enact regulation that would permit such nonperforming assets (NPAs) to be quickly settled, permitting the bank to reinvest the recuperated reserves. Banks and financial foundations will save time by not recording a claim in common court, which would regularly be an extensive strategy.² Unstable advances, credits under $100,000, and obligations that are under 20% of the underlying guideline are excluded from the resolution. This regulation allowed the arrangement of resource reconstruction organizations (ARCs) and the offer of non-performing assets by banks to ARCs. Without the assent of a court, banks are approved to take responsibility for the property and sell it.

Objective and Applicability

It’s a legal framework that governs securitization transactions. Security interests can be implemented without the support of a court. The Act encourages banks and financial institutions to manage their assets to successfully deal with NPAs, asset reconstruction, and asset securitization organizations are being established. This Act empowers banks and financial institutions to seize hypothecated or mortgaged assets to recover nonperforming assets (NPAs). Without the participation of the court, the SARFAESI Act enables the following recovery channels for NPAs: securitization, asset reconstruction, and security enforcement.

The following topics are covered under the Act:

• The Reserve Bank of India regulates and registers Asset Reconstruction Companies (ARCs). Facilitating the securitization of banks’ and financial institutions’ financial assets, with or without the use of underlying securities.
• The ARC supports the consistent transferability of financial assets by issuing bonds, debentures, or any other instrument as a debenture to buy financial assets from financial organizations and banks.
• By entrusting the Asset Reconstruction Companies with the task of raising cash through the sale of security receipts to eligible buyers, the Asset Reconstruction Companies will be able to obtain funds.
• Facilitating the reconstruction of financial assets obtained when exercising securities enforcement authorities, management change powers, or other powers intended to be placed on banks and financial organizations.
• The borrower’s account is classified as a non-performing asset following the Reserve Bank of India’s instructions or guidelines released from time to time.
• In this case, the officials authorized shall exercise the rights of a secured creditor in line with the Central Government’s laws.
• An appeal to the relevant Debts Recovery Tribunal and a second appeal to the Appellate Debts Recovery Tribunal against any bank or financial institution’s activity.
• The Central Government may establish or compel the establishment of a Central Registry to register securitization, asset reconstruction, and security interest formation transactions.
• Applicability of the proposed legislation to banks and financial institutions initially, with the Central Government empowered to expand the proposed legislation’s application to non-banking financial enterprises and other organizations.
• The proposed regulation does not apply to security interests in agricultural lands, loans under one lakh rupees, or circumstances where the borrower repays 80% of the loan.

Asset Reconstruction

Asset Construction is covered by RBI regulations and legislative provisions under the SARFAESI Act, 2002. It consists of the following:

• The fundamental definition of “asset reconstruction” is the process of transforming nonperforming assets (NPAs) into performing assets.
• It all starts with a specialist Asset Reconstruction Company purchasing defective assets, including hypothecated assets, and financing them by issuing Bonds, Securities, and cash.
• The Asset Reconstruction Company takes over or changes the management of the borrower’s business, sells or leases a part or all of the borrower’s firm, and reschedules the borrower’s debt payments using this approach.

Working of Security Enforcement

The SARFAESI Act gives banks and financial institutions the authority to enforce their securities. The procedure begins with the Debtor being given a 60-day notice period to pay the owing amount. If the outstanding dues are not paid within the required term, the Banks and FI’s have the authority to enforce their SECURITY INTEREST by taking the following steps:

• Banks and financial institutions have the legal right to take ownership of the secured property.
• Banks and financial institutions have the option of selling or leasing such property or assigning the right to security.
• Appointment of a “Manager” to oversee the aforementioned security.

It can approach the borrower’s debtors for payment of the borrower’s debts.

Landmark Cases

M/S Transcore vs Union of India & Anr³
The appellant is M/s Transco, while the respondent is Union of India and Anr. This case is of general interest since it brings up a public approach issue about whether the principal stipulation to Section 19(1) of the DRT Act, 1993 (added by the Amending Act No.30 of 2004) is a condition that should be met prior to utilizing the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The respondent (Indian Overseas Bank) recorded activity with the DRT in Chennai for the recuperation of duty from the appellant in Civil Appeal No. 3228 of 2006. In 2005, the Respondent gave a Possession Notice to the appellant under segment 13(4) of the Act, expecting him to reimburse his duty of Rs. 4.15 crores (around) in addition to premium inside sixty days, and expressing that the appellant had neglected to do as such and that the bank had claimed the undaunted properties recorded in the timetable to the Notice, which was then sold. In any case, a common allure has been recorded, and the sale deal has been deferred.

In this case, the Supreme Court reasoned that pulling out a case forthcoming before the DRT is definitely not essential for utilizing the SARFEASI Act. This choice has settled the lawful issue encompassing the send-off of simultaneous procedures under the SARFAESI Act. The allure/I.A. made by the appellant in this Court is excused, yet the allure/I.A. is presented by the banks/FIs. is allowed with no expense’s choice. Besides, the choice in the Transcore case permitted banks and monetary foundations to start systems under both the SARAESI Act and the DRT Act simultaneously. The court likewise held that segment 13(2) of the SARFAESI Act is a notification of interest expecting activity to be directed inside the time expressed and not a simple show-cause notice. At the point when a notice is given to the indebted person it is adequately evident, that borrower has neglected to put in his time and his record is classed as NPA. The obligation is distinguished and the record is delegated a nonperforming resource (NPA) under RBI rules. Prior to the bank/FI can summon Section 13(4) of the SARFAESI Act, the requirements of Section 13(2) of the SARFAESI Act should be met. Following the culmination of Section 13(2) conditions, the bank or FI would be qualified to assume responsibility for the borrower’s gotten resources or make different moves. For this situation, the possibility of the political race doesn’t matter in light of the fact that the Act is a beneficial solution for the DRT Act. They are joined to frame a solitary cure; henceforth the possibility of the political race doesn’t have any significant bearing. The SARFAESI Act gives an additional cure that isn’t in a struggle with DRT. The SARFAESI Act was intended to safeguard the bank/premium FI’s in monetary resources that it claims because of an agreement or the use of customary regulation standards. Segment 13 of the SARFAESI Act intends to recuperate reserves utilizing a non-adjudicatory way. Under the SARFAESI Act, a got resource is one in which the borrower makes revenue for the bank/FI and the SARFAESI is determined exclusively on that premise. The reason for adding the stipulation to Section 19(1) of the DRT Act is to bring the arrangements of the DRT Act, the SARFAESI Act, and Order XXIII CPC into the arrangement.⁴

Mardia Chemicals Ltd. vs Union of India⁵
Here, the protected authenticity of SARFAESI was addressed, especially Sections 13, 15, 17, and 34, on the grounds that they are erratic and outlandish. Whenever the Act became real, IDBI Bank gave a notification to Mardia. Mardia defaulted-spoke to the court, where a progression of comparable petitions was assembled and tended to as a solitary case. The appellant battled that section 13 of the SARFAESI Act gives full freedoms to banks and monetary establishments while overlooking the privileges of defaulters. Likewise, borrower interest was not thought about by any means in Section 13. Besides, the borrowers had no right of direction or response to an adjudicatory technique. Section 17(2) of the Act expressed that the defaulter should store 75% of the sum to like and allure the sum was inordinate and subsequently restricted admittance to the legal plan of action of allure maybe a suggested bar had been made/to this, respondent battled that few different regulations accommodated such preconditions/Pet contended that those were for the claim and not for the use of first occurrence/respondent attempted to invalidate that by expressing that The strategy for assuming control over the business and the board of an element, especially a firm, was canvassed in Section 15 of the 15. The appellant likewise fought that section 34 was indistinguishable from Section 34 of the RDB Act, which announced that DRTs have selective locale, i.e., no respectful court will give any request or order against a bank practicing privileges under the Act. SARFAESI was pointless on the grounds that there was at that point a regulation managing this subject issue, and a few regulations were not expected to deal with a similar topic. It was additionally brought up that the most inconvenient obligation section somewhere in the range of 25,000 and 1 lakh dollars-didn’t require separate regulations.

For this situation, the Supreme Court held that the Parliament’s prevalence in concluding the requirement for regulation is underlined. The association between the RDB Act and SARFAESI was dismissed since the last option manages the exceptionally specific issue of nonperforming resources (NPAs) (among different contrasts, for example, the last option managing got leasers). Accordingly, it really depends on Parliament to conclude regardless of whether regulation is required. Section 13 was viewed as intrinsically authentic by the Court. The got bank is just practicing his privilege on the grounds that the default that prompted the sec 13 measure may be viewed as a “second default”- NPA + 60 days additional chance to reimburse following notification. Prior to the 2016 Amendment, Section 13 recognized the Right of Redemption it might be said. Rule 8 and 9 of the SI Rules expressed that the bank should serve a notification affirming the offer of gotten property and that the borrower might take care of the commitment and recover ownership any time before the genuine deal. While the Supreme Court affirmed the section’s legality, it pushed it difficult for borrowers to reserve the privilege to the portrayal. The Supreme Court decided Section 17(2) to be inconsistent and requested that the heading be modified from “claim” to “application.”⁶

Pandurang Ganpati Chaugale v. Vishwasrao Patil Murgud Sahakari Bank Ltd⁷
“‘Banking’ relating to cooperatives can be included within the purview of Entry 45 of List I, and it cannot be said to be over inclusion to cover provisions of recovery by cooperative banks in the SARFAESI Act,” a five-judge bench of Justices Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah, and Aniruddha Bose, has held in this case. The ruling of the Court came in a reference made in light of contradictory decisions in Greater Bombay Coop. Bank Ltd. v. United Yarn Tex (P) Ltd.⁸, Delhi Cloth & General Mills Co. Ltd. v. Union of India⁹, T. Velayudhan Achari v. Union of India¹⁰, and Union of India v. Delhi High Court Bar Association¹¹.

The seat held that the whole situation and banking action of helpful banks is represented by a regulation authorized under Entry 45 of List I, i.e., the BR Act, 1949, and the RBI Act ordered under Entry 38 of List I, saying that “recuperation of duty would be a fundamental capacity of any banking foundation, and the Parliament can sanction a regulation under Entry 45 of List I as the action of banking done by agreeable banks is inside the domain of Entry 45 of List I.” Obviously, under Section 13 of the SARFAESI Act, Parliament has the position to endorse the solution for recuperation.” The Court likewise clarified that the principal part of the matter of the agreeable bank connecting with banking was covered by the BR Act, 1949, and the Reserve Bank of India Act, such regulations are connected with Entries 45 and 38 of List I of the Seventh Schedule. The parts of ‘joining, regulation and twisting up’ are covered by Entry 32 of List II of the Seventh Schedule. “As we would see it, such bankers’ banking movement is covered by Entry 45 of List I, which considers the Doctrine of Pith and Substance, as well as the passability of accidental infringement on the field held for the State.” The court reasoned that disturbing ‘banking,’ the regulation connecting with Entry 45 of List I of the Seventh Schedule of the Constitution of India administers cooperative banks enrolled under State regulation and multi-State level cooperative social orders enlisted under the Multi-State Cooperative Societies Act, 2002 (MSCS Act, 2002). The cooperative banks run by cooperative social orders enrolled under State regulation for ‘joining, regulation, and ending up,’ specifically, to issues that are outside the domain of Entry 45 of List I of the Constitution of India, are administered by the said regulation connected with Entry 32 of List II of the Constitution of India. The significance of ‘Banking Company’ is characterized under Section 5(c) read with Section 56(a) of the Banking Regulation Act, 1949, which is a regulation associated with Entry 45 of List I. It manages the ‘banking’ part of co-employable social orders’ banks. The Banking Regulation Act, 1949, and some other regulation appropriate to helpful banks interesting in ‘Banking’ in Entry 45 of List I, and the RBI Act appealing to Entry 38 of List I of the Seventh Schedule of the Constitution of India, deny agreeable banks from participating in any movement except if they conform to the arrangements of the Banking Regulation Act, 1949, and some other regulation relevant to such banks engaging to ‘Banking’ in Entry 45 of List I. Under section 2(1)(c) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, state-contracted helpful banks and multi-state agreeable banks are alluded to as “banks.” The recuperation component laid out under section 13 of the SARFAESI Act, regulation connected with Entry 45 List I of the Seventh Schedule to the Constitution of India is pertinent on the grounds that recuperation is a significant part of banking.¹²

Amendment to the SARFAESI Act

The Enforcement of Security Interest and Recovery of Debts Laws and Miscellaneous Provisions (Amendment) Bill, 2016, was introduced in Parliament to amend four laws: the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI), the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (RDDBFI), the Indian Stamp Act, 1899, and the Depositories Act, 1996. When secured creditor defaults on a loan, the SARFAESI Act permits secured creditors to seize the collateral used to finance the transaction. This procedure is carried out with the help of the District Magistrate and does not necessitate the involvement of courts or tribunals. The District Magistrate must finish this process within 30 days, according to the Bill. Furthermore, the Bill authorizes the District Magistrate to assist banks in assuming management of a company if it is unable to repay loans. This will be done if the banks convert their outstanding loans into equity shares and hold a 51 percent or greater ownership in the company as a result.

The Act establishes a single registry to keep track of secured asset transactions. The bill establishes a consolidated database that will allow property records from diverse registration systems to be integrated into one central registry. This contains registrations made under the Companies Act of 2013, the Registration Act of 1908, and the Motor Vehicles Act of 1988. Secured creditors will not be able to take possession of collateral unless it is registered with the central registration, according to the bill. Furthermore, after the registration of a security interest, these creditors will have priority over others in the repayment of their debts.¹³

Conclusion

With the recent judgment made by the Supreme Court of India, all state and multi-state cooperative banks will now be subject to the SARFAESI Act of 2002. Banks can now sell and seize defaulters’ properties to recover their debts, because of the Supreme Court’s crucial decision. The court bench also recognized a 2003 notification that cooperative banks are covered by the SARFAESI Act and are entitled to seek redress. Cooperative banks had to go to court to recover their dues before this notification was written. The Supreme Court went on to say that this decision was made to eliminate delays in collecting dues because cooperative banks are required to resort to civil courts under the Cooperative Societies Act to do so. The court also held that co-operative banks that engage in banking activities are subject to Sections 5 (c) and 56 (a) of the Banking Regulation Act of 1949, which are laws related to List I Entry 45. (Union List).¹⁴ After the judgment made by the Court regarding this issue, experts hope that it would bring the much-needed reforms in the cooperative banks sector, which has been subjected to bankruptcy and corruption. They also believe that it would bring large-scale implications.

References:

1. SARFAESI ACT, 2002- Applicability, Objectives, Process, Documentation, cleartax.in https://cleartax.in/s/sarfaesi-act-2002 
2. An overview of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI), Arun Bapat, iPleaders https://blog.ipleaders.in/overview-securitisation-reconstruction-financial-assets-enforcement-security-interest-act/
3. 2006(5) CTC 753(SC)
4. M/S Transcore vs Union of India & Anr, Darshika Rughani, Pro Bono India https://probono-india.in/research-paper-detail.php?id=415 
5. Case No.: Transfer Case (civil) 92-95 of 2002
6. Constitutional Validity of SARFAESI Act of 2002 tested under ‘Mardia Chemicals vs. UOI’, Shubham Phophalia, taxguru  https://taxguru.in/finance/constitutional-validity-sarfaesi-act-2002-tested-mardia-chemicals-vs-uoi.html
7. 2020 SC 431
8. (2007) 6 SCC 236
9. (1993) 2 SCC 582
10. (1983) 4 SCC 166
11. (2007) 6 SCC 236
12. SARFAESI Act applicable to Cooperative Banks: Constitution Bench, Prachi Bharadwaj, SCC Online https://www.scconline.com/blog/post/2020/05/05/sarfaesi-act-applicable-to-cooperative-banks-constitution-bench/ 
13. The Enforcement of Security Interest and Recovery of Debts Laws and Miscellaneous Provisions (Amendment) Bill, 2016, PRS India https://prsindia.org/billtrack/the-enforcement-of-security-interest-and-recovery-of-debts-laws-and-miscellaneous-provisions-amendment-bill-2016#:~:text=Amendments%20to%20the%20SARFAESI%20Act,intervention%20of%20courts%20or%20tribunals.
14. What is SARFAESI Act? Jagran Josh https://www.jagranjosh.com/general-knowledge/sarfaesi-act-1588850144-1

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

This article talks about Section 13(B) and the effects of the cooling period being waived off and various cases to understand this better.

INTRODUCTION 

Marriage is considered one of the essential sacraments for all Hindus. None other than the Hindus have endeavored to Idealize the institution of marriage. Due to this a divorced person was stigmatized and hindered in the Hindu Society but over the years as our nation developed and Hindu Marriage Act came into force eventually the divorce aspects also found their own place in the act. The Hindu Marriage Act, 1955 under Section 13 (B) states that a petition for mutual consent divorce is presented by the parties with the following averments: –

1. That both the spouses are living separately for a period of one year,
2. The Spouses have not been able to live together,
3. Both the spouses have been living separately by consent.

In recent years Supreme Court has given a new perspective to the cooling period in mutual and consented divorce. The court held that this clause of the Hindu Marriage Act,1955 which allows a cooling-off period of six months is not compulsory but just directory to the courts. According to this, the courts in which the divorce proceedings are ongoing under extraordinary cases have the right to suspend this time if other conditions are met, including the fact that the spouses have been piecemeal for a period of more than18 months, that all comforting and concession attempts to reunite the parties have collapsed and the parties have truly resolved their controversies, indeed in regard to alimony.

MEANING OF THE TERM ‘COOLING-OFF PERIOD’?

Under Section 13 of the Hindu Marriage Act, 1955 a married couple can get a divorce on the grounds of mutual consent through filing a petition to the court. It’s a straightforward method to dissolve the marriage where both the parties peacefully agree to the separation. According to Section 13 (b) of the Hindu Marriage Act, 1955 for a statutory interregnum understanding, a cooling period of six months between the first and the last motion for divorce by mutual consent so as the possibility of cohabitation and settlement could be explored. This period of 6 months is called the cooling-off period.

APPLICABILITY OF COOLING PERIOD IN CASES OF DIVORCE

The expenses are the clearest preferred position of consensual divorce. Consensual divorce that stays uncontested is sort of often the foremost economical method of dissolving the wedding. The minimal effort of the cooling period isn’t, be that because it may, but it’s the littlest bit of leeway in consensual divorce. In the event that the degree of contention between the 2 partners stays low, a consensual divorce offers an approach to stay it that way. It is extremely private and progressively helpful and is helpful to keep a greater amount of your advantages in all of your personal assets and not on the hands of the law, and other required things within the procedure of the dissolution of marriage. Separation by mutual consent expels superfluous squabbles and saves a lot of time and money. With the expanding number of uses being applied for a separation, a consensual divorce is the best alternative. Uncontested separation offers to break away life partners the chance to finish their marriage discreetly and with dignity.

UNDER WHAT CIRCUMSTANCES IT CAN BE WAIVED OFF?

In Abhay Chauhan v. Rachna Singh, 2006 both the parties were 30 years old, well educated, and mature and the marriage of the parties was solemnized four years ago and there was absolutely no possibility of reconciliation. The Delhi High Court in such a case held that the cooling period of 6 months can be exempted in certain cases but this controversy is still continuing. High Courts are overwhelmingly waiving this period by calling it directory rather than mandatory provision but some high courts beg to differ.

In an important judgment of Amardeep Singh vs Harveen Kaur on 12th September 2017, the Supreme Court held that this cooling period of 6 months can be waived in cases of mutual consent. Section 13B (1) of the Hindu Marriage Act deals with the petitions sustainability therefore it cannot be abolished and Section 13B (2) in spite of being administrative should be repealed after the details of every situation as they may vary from each other, wherever the little possibility of reconciliation is seen.

In the Avneesh Sood vs. Tithi Sood case and in the Shikha Bhatia case vs Gaurav Bhatia & Ors case, the courts held that a spouse who undertakes to comply with the consent given in the first motion for the dissolution of marriage under Section 13B (1) of the Hindu Marriage Act and for filing a second motion he/she would not be allowed to withdraw such an undertaking subject to an agreement reached between both the spouses.

Rajiv Chhikara vs. Sandhya Mathu, the Delhi High Court held that retracting from mediation would be considered as mental cruelty. The Court also noted in the case that the partner had lived apart since 2009 and that their relationship was now beyond repair. Therefore, under these circumstances, one partner demands that the marital bond be maintained and the same would be as putting the partner in extreme mental cruelty.

In Suman v. Surendra Kumar, the High Court of Rajasthan addressed this question for the purpose of the cooling period whose purpose is to give both the partner time and opportunity to reflect on their decision. The partners or one of them may have second thoughts in this cooling period and may change their minds about the dissolution of marriage.

However, the court always takes into consideration the following aspect before waving off the cooling period:

1. The statutory cooling period of 6 months as given under Section 13B (2) and the period of one year as specified under Section 13B (1) is already over before the commencement of the first movement of the divorce case.
2. If the parties have already dealt with their differences and have come to terms in matters such as alimony, custody of their child, and all other disputes between them then the waiting period only increases their agony and there is no point of it.
3. That all means of conciliation/mediation and efforts made in terms of Section 23(2) of the Hindu Marriage Act,1955 and Order XXXII A Rule of Code of Civil Procedure have failed to reunite and save the marriage, and no hope is left for saving the marriage.

Thus, the Supreme Court has given family courts the discretion to determine whether to waive the six-month cooling-off period or not. The Court also held that the application for a waiver of the cooling period can be made as early as one week after the divorce petition had been filed in the court.

SOME OTHER IMPORTANT CASES UNDER SECTION 13 (B)

In the Sureshta Devi v. Om Prakash case, the Hon’ble Supreme Court held that the phrase ‘living separately’ refers to not living as husband and wife. It has no reference to where the spouses live. It is possible that the partners may are living under the same roof and still may not live as husbands and wives. The partners don’t wish to fulfill marital obligations. The Supreme Court of India had ruled that mutual consent is a sine qua non I.e an essential condition for passing a decree of divorce and the said agreement must be binding and subsist until a final decree of divorce has been issued.

In Hirabai Bharucha vs. Pirojshah Bharucha, the High Court held that the courts are obliged to make every effort to maintain the institution of marriage. That is an arrangement between the partners specifying the terms of settlement runs counter to public policy, they should be regarded as void ab initio and it is unenforceable and, in such cases, it cannot be recourse to contempt proceedings.

The court ruled that where a solicitation is submitted for divorce through common concurrence under Section 13B of the Act, the Court will move that the concurrence granted by the mates persists until the date of the allocation of the divorce decree. And if one mate freely withdraws its support, in view of the provision of Section 13B of the Act, the Court doesn’t have the power to grant a divorce decree by collective concurrence.

CONCLUSION

Consensual divorce refers to that stage where both the partners dissolve their marriage by mutual consent. Divorce is an equally important part of society as marriage. As we all know that all marriages are not perfect and cannot be sustained or continued, ending such marriage is the best possible damage control that can be done for both spouses. Divorce by Mutual-consent is one of the recent addition to the Indian jurisprudence of divorce and is fairly integral. Earlier, Indian couples resorted to the very time-consuming and expensive method of ground-based litigation, which did no good to the parties but rather induced animosity between them and involved many maligning.

Reference: 

1. https://nrilegalconsultants.in/waiving-off-period-of-6-months-cooling-off-period in-case-of-a-mutual-divorce/ 
2. https://www.latestlaws.com/latest-news/couple-gets-divorce-without-6-month cooling-off-period/ 
3. https://www.thehindu.com/news/national/sc-sanctions-divorce-to-couple-without six-months-cooling-off-period/article25237873.ece 
4. https://health.economictimes.indiatimes.com/news/industry/future-of-artificial intelligence-in-healthcare-in-india/56174804

This article is written by Tanya Arya, a second-year law student at Vivekananda Institute of Professional Studies.

INTRODUCTION

The word ‘federalism’ is derived from the Latin word ‘foedus’ which means ‘covenant or treaty. Federalism refers to the distribution of powers between the state and the central government. Three lists are provided by the seventh schedule of our Indian constitution and the three lists are union lists, state lists, and the concurrent list. The central government deals with the issues mentioned under the union list such as defense, trade and commerce, citizenship, insurance, banking, highways, railways, higher education, navigation and shipping, and many more. The state government deals with the issue given under the state lists such as agriculture, pilgrimages within India, prisons, state court fees, public health and sanitation, and the last list is a concurrent list which consists of issues on which both the central government and the state government can exercise jurisdiction such as contempt of court, evidence, protection of wild animals and bird, labor welfare, stamp duties, food, administration of justice, etc. if there is a conflict between the central government and the state government then, the decision of the central government will supersede the decision of the state government.

PRINCIPLES OF FEDERALISM

SEPARATION OF POWERS
The power is divided into three branches: legislative, executive, and judiciary. These three organs of the government are independent of each other. These branches are well-known examples of the tripartite system in the united states. The main purpose of this separation of power is to prevent the concentration of power and autocracy.

CHECKS AND BALANCES
Checks and balances are important to prevent the concentration of power and violation of the separation of power. It is required for the proper functioning of the three organs of the government. Some of the examples of checks and balances are judicial review, basic doctrine structure of the Indian constitution, etc.

KEY FEATURES OF THE FEDERALISM UNDER THE INDIAN CONSTITUTION

DIVISION OF POWER
Division of power is the essential feature of federalism so that the power is not concentrated in the hands of the central government. In this, the power flows from the central government to the state government and the local government i.e panchayat.

SUPREMACY OF THE INDIAN CONSTITUTION
Supremacy of the Indian constitution means that the powers of the executive, judiciary, and the legislative are mentioned in the Indian constitution and they are bound by the constitution hence, no one is above the constitution. This feature gives strength to the basic structure doctrine of the Indian constitution which was given by the Keshvananda Bharti vs the State of Kerala¹.

WRITTEN CONSTITUTION
A written constitution is necessary to constitute a country as a federal nation. As it is difficult to distribute the powers orally among the center and the state government. Written constitution helps to maintain the supremacy of the Indian constitution and provides clarity.

RIGID CONSTITUTION
It is important to have rigidity in the constitution to maintain the supremacy of the constitution.

JUDICIARY
There can be a dispute between the center and the state and the judiciary provides the proper mechanism to solve the dispute between them and the decision of the judiciary is binding upon all of them.

• ARTICLE 131
  According to this article, the supreme court has original jurisdiction to hear the disputes between the center and the state, two or more states, etc.²
• ARTICLE 262
  This article focuses on the issue of water and valley disputes between states. This parliament Is allowed to make laws on the distribution of water or control of river valleys and can even bar the supreme court to hear disputes related to water or valley disputes.³
• ARTICLE 263
  Article 263 is based on the issue of the “establishment of the inter-state council”. In this article, the president can ask to establish a council on the charge of interest of the public or to resolve disputes between them. The duty of these councils is to advise and inquire the states if a dispute arises between them, make a recommendation for the better functioning of the policy, and discuss the subjects which are common to both the state and the union.⁴

BICAMERAL LEGISLATION
Like Canada, India has also bicameral legislation. India also has two houses upper house [Rajya Sabha] and the Lower house [Lok Sabha] and a bill have to be passed by both the houses of the parliament. In India even states also have bicameral legislation such states are Karnataka, Maharashtra, Uttar Pradesh, Bihar, Telangana, and Andhra Pradesh. They have an upper house [Vidhan sabha] and a lower house [Vidhan Parsihad].

QUASI FEDERALISM

Quasi federalism means a form of government that has features of both the federal government and the unitary government. For example India and Canada. But the major control and authority lie with the central government. India is a quasi-federal country in which the states have the power to make laws under list 2 of the seventh schedule of the Indian constitution and the central government has jurisdiction on the matters mentioned in the first list of the seventh schedule of the Indian constitution. The state government and the central government both have the powers to make laws on the matter listed under the third list of the seventh schedule of the Indian constitution. If the dispute arises between the center and the state then the opinion of the central government will prevail.

In India, emergencies can be imposed under articles 352, 356, and 360 of the Indian constitution. During an emergency center government retains all the power and the state government has no autonomy during an emergency. This way federalism loses its luster.

ISSUES AND CHALLENGES FACED BY THE INDIAN FEDERALISM

REGIONALISM
As center focuses more on bigger states than the smaller states and states work according to the democratic system. Then, the conflict can arise between them and they demand to be separated from the union.

ABSENCE OF FISCAL FREEDOM
Fiscal freedom basically means the distribution of financial and tax-related power between the center and the state government. It is necessary for the development of the nation. Though the main power lies in the hands of the center and also they have a finance commission whose work is to decide the state’s share in the center’s revenue.

OFFICE OF THE GOVERNOR
Governor is the head of the state and is appointed by the president of India under Article 155 of the Indian constitution. The decision of the president can overrule the decision of the governors appointed by the president.

INTEGRATED SERVICES
India has integrated services of the judiciary, audits, elections, and many more. The judiciary system of India consists of the supreme, the high court at the state level, and district courts. Supreme courts decisions are bound on the high court and the high court doesn’t have jurisdiction to entertain cases related to disputes between the states. The process of election is the same at both the center and the state level. At the center, it is conducted by the election commission and at the state level it is conducted by the chief electoral officer [CEO] but they are under the supervision of the election commission.

DIFFERENT RELIGION
India is a diverse country and has people who belong to many religions but India is a secular state and the word secular was added in the preamble under the 42nd amendment act which means India will not have any religion or will not promote any religion. This can lead to a conflict between the two religions and then makes federalism weak.

CASE LAWS

MANEKA GANDHI VS UNION OF INDIA
In the year 1978, the verdict passed under this law is that any law made by the legislature is considered to be ultra vires if it violates or infringes any of the fundamental rights. The fundamental rights can only be changed by the constitution, hence this is a check on both the executive branch and the parliament and the state legislatures. During times of emergency article 19 of the Indian constitution is taken away as during the times of emergency our country follows a unitary government. Therefore India is a quasi-federal country.⁵

STATE OF WEST BENGAL VS UNION OF INDIA
The exercise of sovereign rights by Indian states was the central issue in this case. The Parliament’s legislative competence to implement a statute requiring the Union to acquire land and other properties vested in or owned by the state, as well as the sovereign authority of states as separate entities, were also investigated. The Supreme Court of India ruled that the Indian Constitution did not contain an absolute federalism provision.⁶

Article 13 of the Indian Constitution will therefore become a non-issue, and it may be overlooked because even regular legislation will be exempt from judicial examination because they were passed on the strength of a constitutional amendment that is not subject to challenge.⁷

CONCLUSION

Federalism is the distribution of power from the central government to the state government and the local government. The main objective of this is to prevent autocracy. India is quasi federalism country which means it has the features of federalism but the main authority lies with the central government. No doubt there is a lack of balance between the center and the state government.

References:

1. Kesavananada Bharti vs state of Kerala, [1973 SC 1461]
2. Constitution of India, 1950 Art 131
3. Constitution of India, 1950 Art 262
4. Constitution of India, 1950, Art 263
5. Maneka Gandhi Vs Union of India, [AIR 567, 1978 SCR[2] 621]
6. State of West Bengal vs union of India, [AIR 1987 Cal 226]
7. Constitution of India, 1950 Art 13

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

Intellectual property rights play an important role in a country’s development. Every country’s intellectual property legislation is distinct. The tight implementation of the IPR role contributes significantly to economic growth in many industrialized countries. Intellectual property rights encourage innovation, which in turn results in economic progress. Every firm in the world today is because of innovation. How important the IPR laws are has been recognized in the modern era. In the present day, it is not just innovation, but also the name that matters. The name has a lot of goodness affixed to it. Brand names are sold by some businesses for a large sum of money. There is a significant impact of Intellectual property rights on a country’s economic development. In terms of economic development, the IPR can play both a detrimental and a good role.

INTRODUCTION

Intellectual property is defined as property created by the human mind and intellect. Intellectual property, as well as the rights associated with it, is becoming increasingly valuable. Both the state and the national economies rely heavily on intellectual property (IP). Hundreds of businesses rely on the proper protection of their patents, copyrights, and trademarks, while the consumers utilize IP to assure they are buying safe, guaranteed products. Intellectual property rights, we feel, are critical to protecting both at home and abroad. The legal rights are granted to the person who has invented or created something new and unique that has never been done before and the legal rights are granted to the person or his delegate for a set period of time to fully exploit that particular idea.

Owners of intellectual property are granted certain rights that allow them to enjoy their property without interruption and prevent others from utilizing it. These rights, known as “monopoly rights of exploitation”, are limited in geographical extent, time, and scope.

And because of this, there is a direct and significant impact of intellectual property rights on industry and business since IPR owners can defend their rights and prevent the manufacture, use, or sale of a product to the general public. IP protection promotes commercial enterprises to pick creative works for exploitation by encouraging distribution, publication, and disclosure of their production to the public rather than keeping it a secret.

INTELLECTUAL PROPERTY RIGHTS IN INDIA

One of the UK’s most important international markets is India. If you plan to conduct business in India, or if you already do business there, you must understand how to utilize, protect, and enforce your rights to intellectual property (IP) that your company or you own. This guide covers the basics of intellectual property and how to use these propositions in the Indian market. It explains how to deal with IP infringement in this country, gives guidance on how to deal with it efficiently, and provides links to more resources.

Copyright protects published or written works such as songs, books, films, artistic works, and web content; Patents protect commercial inventions, such as a new business product or process; Designs protect designs, such as drawings or computer models; and Trademarks protect signs, symbols, logos, words, or sounds that distinguish your products and services from those of your competitors.

It is possible to have a registered or unregistered IP address.
You instantly acquire legal rights to your creation if your IP is unregistered. Unregistered design rights, copyright, database rights, common law trademarks, confidential information, and commercial secrets are all examples of unregistered IP.

Application is to be given to an authority, like the Intellectual Property Office located in the United Kingdom, to have your rights recognized if you have registered IP. Others will be able to exploit one’s property if it’s not done so.
India has, as a fact, been a member of the World Trade Organization (WTO) since 1995. WTO members are required to provide some form of protection of intellectual property in their national legislation. This implies that if you do business with India, you’ll notice certain parallels between enforcement procedures and local IP law and those in place in the United Kingdom. Patents, registered design rights, and registered trademarks can be taken as examples of registered intellectual property. Copyright can also be registered.

India has signed the Berne Convention on Copyright. However, registering your copyright may be beneficial in proving ownership in the event of criminal proceedings against anyone who fringes this right.
However, in most circumstances, registration is not required to pursue a copyright infringement suit in India.
The Copyright Office accepts registrations in person or through a representative. Since 2016, India’s Ministry of Commerce and Industry has been in charge of copyright policy. All IPRs (DIPP) are now being managed by the Department of Industrial Property and Promotion. In India, if there is any piracy of films, music, games, and software on the internet, as well as unauthorized copying of physical books, is a problem.

The Patents Act of 1970, the Patent Rules of 2003, and the Patent Amendment Rules of 2016 govern the patent law in India. just as how they are in the United Kingdom, utility model patents are not permitted in India. The Patent Registrar is the governing authority for patents and is part of India’s Ministry of Commerce and Industry’s Controller General of Patents, Designs, and Trade Marks. For 20 years, Patents are valid from the filing date of the application, with an annual renewal charge. The ‘first to file’ concept governs Indian patent law, which means that if are two people who are applying for a patent on the same invention, the first to file will be granted the patent.

The Designs Act of 2000 and the Designs Rules of 2001 are the legislation that governs designs. For ten years, Designs are valid and can be renewed for another five years.

The Trade Marks Act of 1999 and the Trade Marks Rules of 2002 and 2017 make up India’s trademark legislation.
The Controller General of Patents, Designs, and Trade Marks is the regulatory authority for patents.

The Department of Industrial Policy and Promotion (DIPP) is a government agency tasked with promoting. Now, the police have additional authority in executing the law.

Trademark law, includes the right to examine premises and confiscate counterfeit items without a search warrant, However, these abilities are limited by the necessity that the police obtain a Trade Mark. Before acting, obtain the Registrar’s opinion on the mark’s registration, adding to the wait time and causing problems; resulting in the removal or sale of counterfeit goods.

In India, trade names are also a type of trademark, hence those who want to trade under their own title/surname are under protection, notwithstanding the existence of other trade names. Because of the common practice of ‘cybersquatting,’ which involves third parties registering domain names for well-known marks in order to sell them to the original rights holders, it is recommended that rights holders register their domain names as trademarks in India as soon as feasible. To complete the registration process, it can take up to two years. In India, a trademark is valid for ten years and can be renewed indefinitely for another ten years.

RELATIONSHIP BETWEEN INTELLECTUAL PROPERTY RIGHTS AND ECONOMY

In the economy, the intellectual property serves the following functions:
To give the creator exclusive rights and to preserve the creator’s interests, as well as to stimulate investment in information development and research;
Prohibit competitors or anyone else from abusing or misusing the property if the creator’s authorization has not been given; and#\
To develop a market for any kind of invention in order so that can be put to good use and inspire others to innovate and create.

It is now more cost-effective to incorporate fresh creations and ideas because they have a direct impact on the product’s material cost. As a result, it is critical to keep up with technological advancements and innovation. If there is a good IPR regulation in place to safeguard people’s interests, it will deter others from exploiting the same. Enforcement of good law matters just the same as its existence. It’s pointless to have strict legislation if it can’t be efficiently enforced. Loopholes and weak legislation can be abused and exploited, resulting in a lack of innovation. Individuals must be discouraged from exploiting intellectual property under IPR law.

IPR now gives the property’s owner or creator exclusive rights. There is complete control over the fair market value by the owner and he can sell them to anyone. A healthy return to developers will drive him and others to come up with new ideas, and we can all benefit from it. This right, however, can be exploited by the owner, who can charge far more than the marginal cost. This privileged status has the potential to create a market monopoly. Monopoly leads to unfairness and an imbalance in consumer and production markets. In the legal system, there are protections for intellectual property rights and antitrust. Competition plays a vital function in the market since it keeps the market in check and influences consumer happiness.

There are a few market giants who control the entire market. They have the resources and capacity to manipulate and control the market. The market is made up of consumers, producers, and developers, and IPR offers developers more rights and protection, which helps to keep the competition going. In the market, there should be a balance between the two. IPR can be used as an instrument to keep the market in check. IPR not only offers the owner exclusive rights, but it also allows him the authority to transfer his right of use to others, allowing him to permit anyone to use it in order for the exchange of money.

The positive aspect of this is that; a country like India, which is one of the world’s most developing economies, must concentrate on increasing market productivity. India has a long history of providing exceptional services to the entire world. Productivity can be boosted with better technology and processes. Innovation demands investment, and it demanded a sizable sum of money. These are costly, but they play a vital part in the investment. We may learn from industrialized countries like the United States and Japan, where the development rate grew fivefold when intellectual property rules were implemented.

There are now several ideas claiming that IPR has a negative impact on the economy. A trademark infringement in the 1980s, in China, had a severe impact on Chinese innovative businesses. Local businesses began to take advantage of the well-known corporation by creating counterfeit products and releasing them into the market.

Copyright infringements have a similar effect. In countries with lax copyright rules, pirate enterprises begin to take advantage of the market and the law. Even if low-quality or pirated versions are accessible on the market, technical advancement would be hampered, which will have a direct impact on the economy. Producers and consumers should both be enticed to invest in the market by IPR laws. This also ensures quality, which is critical for protecting customers’ interests. Customers may be at risk from counterfeit or imitation food products, beverages, pharmaceuticals, and cosmetics.

After the adoption of Trade-Related Intellectual Property Rights (“TRIPS”), the market began to shift. The act began by providing operating space and chances for businesses to innovate. In recent years, the private sector has begun to invest in development and research. In India, the number of patents filed has increased since TRIPS was implemented.

However, the major disadvantage of IPR is that it sometimes prevents technology from being used in the most appropriate way. The person holding the rights can occasionally abuse her or his position. They can charge whatever they want, and their innovation is protected by IPR, so it can’t be used by competitors. The most crucial aspect of an economy’s development is competition. The essence of competition maintains a check and balance on both pricing and product quality. On the other hand, IPR laws are anti-competitive. IPR legislation creates a market monopoly. It is pro-monopoly. Copyright, trademarks, and patents are all examples of laws that make it difficult for a competitor to use an idea.

Competition forces producers to consider the benefit and contentment of the consumer because if there is dissatisfaction, he or she will seek out other market competitors. The manufacturer can set any price he wants, and this has a direct impact on the market and the consumer. It would be due to the concept of the law of supply and demand, which defined that if the price is high, demand will be low. When, in the market, there is a monopoly however, this legislation does not apply. The consumer will have no other choice but to purchase the product at the producer’s set price. The producer is constrained to charge not exceeding the marginal cost due to competition.

CONCLUSION

Law is created for society and it’s not the other way around, every legislation is enacted for the improvement and benefit of society. Every law has both beneficial and negative consequences for society. Article 31 of the TRIPS Agreement allows for compulsory licenses to be granted in the following circumstances:

Anti-competitive practices in the benefit of public health in the event of a national emergency. As a result, the Intellectual Property Rights Act does not make the market inflexible while also keeping it dynamic in India.

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

INTRODUCTION

With the advent of social media and networking it is difficult to maintain privacy with the data available online. Data on the internet is flowing like water in the river. If the information of someone is available on the internet which the person has relevant context now or the reason for which it was there on the internet has been served is affecting the other person emotionally or making it difficult for another person to live peacefully. Then, it is a violation of article 21¹. This can be removed through the right to be forgotten which is provided under the right to privacy.

Right to forgotten means the deletion of the user’s personal information from the search engine, website, and many more. The European Union acquired the General Data Protection Bill [GDPR]² in the year 2018. Article 17 of this bill provides certain rights to the erasure of personal information and the certain rights include which are no longer necessary, consent has been withdrawn for particular information, and where there is legal obligation to erase. There are also some reasonable restrictions to some extent like in the area of public interest related to public health, or the data required in achieving historical, statistical, or scientific research.³

The right to be forgotten is to be followed in other countries also. In 2014, in Spain, the European court of justice managed a case Google Inc V Agencia Espanola De Proteccion De Datos in which a Spanish man whose name was Mario Costeja Gonzalez asked google to remove his information related to the auction for his unbridled home and the debt he had subsequently paid. Google was sued under the National High court which suggested a series of questions to the European court of justice. The court ruled the judgment in the favour of the Spanish man and asked google to delete the information.

In 2016, the first case of the right to be forgotten was heard by the Chinese court in Beijing in which they held that the residents don’t have the right to be forgotten. In this case, Ren Jiayu asked the Chinese web search tool Baidu to remove the search list that is related to Wuxi Taoshi’s previous business. Ren argued that the right of name and right of notoriety is reserved under Chinese law. Then the court ruled the judgment against Ren and said that he doesn’t have a right to be forgotten.

RIGHT TO BE FORGOTTEN UNDER THE PERSONAL DATA PROTECTION BILL

The right to privacy is our fundamental right under article 21 of the Indian constitution decided in the case of Justice K.S Puttaswamy Vs the Union of India⁴ in 2017. Data is a very sensitive thing that needs to be protected. The personal data protection bill⁵ was introduced in the Lok Sabha in 2019 with the objective to protect or conserve the data from getting into the wrong hands. This bill also includes the right to be forgotten under clause 20 of chapter V. it means that any person can ask the data fiduciary to remove or limit the data of the concerned person. The role of data fiduciary is to decide the means and the purpose of controlling the personal data it can be anyone an individual, entity, state, or cooperation. The data will be monitored by the Data protection authority and any removal of data has to be approved by the Data protecting authorities’ adjudicating officer. The officer has to see many aspects like the public interest in the concerned data, the extent of availability susceptibility, or the scope of divulgence before approving the removal of the data.

RIGHT TO BE FORGOTTEN VS THE FREEDOM OF SPEECH AND EXPRESSION

“Right to be forgotten is the biggest threat to freedom of speech and expression in the coming decade”
-Jeffrey Rosen

The right to be forgotten is a much-needed statute nowadays to protect the individual interest against defamatory or derogatory statements. Freedom of speech and expression is our fundamental right under article 19⁶ of our Indian constitution and also contains reasonable restrictions under Article 19[2]⁷. Whereas the right to be forgotten can undermine the lusture of freedom of speech and expression. It can affect journalism it will be difficult for media to express their views freely and to wait for the decision of the adjudicating officer. If any person wishes to delete some information on the internet then it will favor the individual, not the society at large. This will also create a sense of feeling in the minds of the people that they are not free to express their views through articles, books, blogs, etc.

CASE LAWS

• Jorawar Singh Mundy Vs Union Of India and Ors⁸
  In this case, the petitioner was an American citizen who visited India in 2009. He got acquitted under the narcotics drugs and substance [NDPS] act, 1985. After two years trial court convicted him on April 30, 2011. On 29 January 2013 through the appeal of state, the Delhi high court then affirmed her acquittal. After returning to America petitioner realized that the Delhi high court’s judgment is available on the internet and this can be harmful to his reputation or while screening test done by the employer. He sent directions to Google India Private Ltd., Google LLC, Indian Kanoon, and vLex.in but the judgment was not deleted then he filled a writ petition before the Delhi High Court for the violation of Article 21. The Delhi high court directed the respondents to delete the judgment.
  
• Dharmaraj Bhanushankar Dave Vs State of Gujarat and ors⁹
  In this case, the petitioner filed a writ petitioner under Article 226 of the Indian constitution before the Gujarat High court for the violation of Article 21. The non-reportable judgment was published by the Indian kanoon on their site and the petitioner contended that google and Indian kanoon has no right to publish any non-reportable judgment. The court held that the judgment was part of the proceeding and that merely publishing judgment on online websites will not amount to be reported. So, it is not a violation of Article 21 and there is no legal rationale to remove the judgment.
  
• Subhranshu Rout Gugul Vs State of Odisha¹⁰
  In this rape case, the accused has created a fake id on Facebook and uploaded objectionable photos of the prosecutrix on the fake id. The police were failed to take any strict action against the accused. The pictures were taken with the consent of the prosecutrix at the time they were in a relationship but now they got separated. It was observed that consent does not mean to misuse the phots or outraging the modesty of the women. In this case, the right to be forgotten should be exercised. The court held that the photo should be removed to protect the privacy of the victim. Irrespective of ongoing criminal cases. The Odisha High Court further noted that the Indian Criminal Justice system is more of a sentence-oriented system, with little emphasis on compensating victims for their losses and suffering. Allowing such offensive photographs and videos to remain on a social networking platform without a woman’s agreement is an outrage to her modesty and, more crucially, her right to privacy.

CONCLUSION

Information in the public domain is like toothpaste. They can not completely be deleted if someone has taken a screenshot or screened the concerned content. the right to privacy is our fundamental right under article 21 of the Indian constitution which needs to be protected. The right to be forgotten is also included in the personal data protection bill, 2019 which is a great step towards the safety of data and the privacy of the individual. In case one person was acquitted under any criminal action but later on find to be innocent and the judgment is reported on many websites or search engines. It can be difficult for the employee to get a job as during the screening process this can destroy the reputation of the employee. The right to be forgotten can be a major relief and can ask for the removal of the judgment. Also in the case when a person with the intention of taking revenge or with the feeling of animosity posts or share any picture or video which is offensive or outrages the modesty of the victim through the right to be forgotten victim can make them deleted. It is been a debatable topic whether the right to be forgotten undermines the fundamental right the freedom of speech and expression under Article 19 which also contains reasonable restrictions under Article 19[2] of the Indian constitution. If a person asks to remove some content from the website or from the internet then it can also cause feelings among the people that they are not free to express their views and opinion through writing articles, blogs, etc and the removal of the concerned content can lead to being in the favor of the individual rather than the society at large. According to me, it requires judicial administration, and article 19[2] which provides reasonable restrictions should be amended and should include privacy in it.

References:

ABSTRACT

The article seeks to discuss and elaborate on the crimes committed against women through the lens of the Indian Penal Code.

INTRODUCTION

Indian Penal Code is a comprehensive code that integrates and codifies the criminal law of India. The Code prescribes punishment for offenses committed within India. IPC was basically the brainchild of the English government. The first law commission of India¹, which was established by the Charter Act of 1833, steered the drafting of IPC, under the tutelage of Thomas Macaulay in 1834. The drafting of the code was completed in 1850 and was presented to the Imperial Legislative Council in 1856 which was ultimately enacted by the Imperial Council on 6th October 1860. The Criminal Code was initially enforced only upon selected Indian States. However, after the Independence of India, the ambit of the act was gradually widened and it covered the entire Indian territory except for the State of Jammu and Kashmir, wherein, after the Jammu and Kashmir Reorganization Act 2019, the IPC came into force. The IPC is divided into 23 chapters, spanning 511 exhaustive sections. Each Chapter of IPC deals with a separate category of offense in the most elaborative and fastidious fashion.

Women are the building blocks of any society. They are synonymous with empathy, motherhood, empowerment, and development. However, like the men and children and other sections of society, the women too need the constitutional and legislative safeguard to protect their interests. Women, as a quintessential section of Indian society, have been vulnerable to myriad crimes. The patriarchal mindset of Indian society coupled with inequity and physical fragility, have jeopardized the interests of women.

IPC serves as an effective tool to serve the interests of all the sections of the society, especially the women, and thereby in that furtherance, categorically lays down descriptive code to punish the people for their crimes. It addresses some of the most rudimentary and fundamental issues concerning the safety of women in everyday life in length and breadth.

PROVISIONS OF IPC THAT DEAL WITH CRIME AGAINST WOMEN²

In order to proceed further, it is to be noted that Section 10 of IPC describes ‘women’ as female human beings of any age group.

1. OFFENCES AFFECTING LIFE

• Section 304B of IPC: Dowry Death.
  It prescribes that if the death of a woman is caused within 7 years of marriage due to bodily injury or burns and it could be shown that soon before her death she was subjected to cruelty by her husband or his relative, then such death would be deemed as dowry death and the punishment for the same would be imprisonment for a minimum term of 7 years, which could be extended to imprisonment for life.

2. OFFENCES INVOLVING MISCARRIAGE AND INJURY TO THE UNBORN BABIES

• Section 313:
  Miscarriage without Consent: Causation of miscarriage of a woman without her consent and good faith is punishable with a term of up to 10 years or with a fine, or both
• Section 315:
  Any act done explicitly and not done in good faith, leading to the death of a child after birth or preventing it from being born alive is punishable with a term of up to 10 years and a fine.

3. OFFENCES CAUSING HURT

• 326A: Voluntary Causing Of Hurt With The Use Of Acid
  Voluntary causation of grievous hurt by throwing/administering acid, that leads to permanent or partial deformity/ damage to any body part of the victim is punishable with a minimum term of 10 years which could extend up to life imprisonment and with fine
• 326B: Attempting To Throw Acid
  Any attempt to throw or administer acid to any person leading to permanent or partial deformity of any body part is punishable with a term ranging from 5 to 7 years and with a fine.

4. OFFENCES INVOLVING USE OF CRIMINAL FORCE AND ASSAULT

• Section 354: Outraging Modesty Of Women
  Intentional use of criminal force (assault) to outrage or likely to outrage the modesty of women is punishable with a term not less than 1 year, which may extend up to 5 years, and a fine.
• Section 354A: Sexual Harassment Of Woman
  Sexual harassment of women by physically touching her, making sexually colorable remarks/ expressions, showing pornography against her will, demanding sexual favors is punishable with a term ranging from 1 year to 3 years or fine or both.
• Section 354B: Use Of Force To Disrobe Women
  Use of criminal force to disrobe a woman or compel her to be naked is punishable with a term ranging from years to 7 years or fine or both.
• Section 354C: Punishment For Voyeurism
  To capture an image or watch women engaging in the private act where women would reasonably expect privacy is a punishable offense wherein the offender is liable with a term of up to 3 years of fine or both.
• Section 354D: Punishment For Stalking A Woman
  Stalking a woman by contacting or following her, or attempting to develop personal interaction against the will of the woman, except in cases of discharging legal or public duty, is punishable with a term of up to 3 years and a fine, which may extend up to 5 years.

5. OFFENCES RELATED TO ABDUCTION/KIDNAPPING

• Section 366A and Section 366B
  Both these sections deal with the procuration of a minor girl under the age of 18 years from any part of India or abroad respectively for the purpose of forcing her into illicit intercourse with another person is punishable for a term of up to 10 years and with a fine.
• Section 370
  Trafficking of a person by means of force, fraud, abduction, inducement, threat, or force for the purpose of exploitation of the victim with or without its consent is punishable for a term ranging from 7 years up to life imprisonment along with a fine, depending upon the grievousness of the situation and crime.
• Section 372 and Section 373
  Selling and buying of minors respectively for the purposes of above Sections, under the age of 18 years for the purpose of prostitution is punishable with imprisonment for a term of up to 10 years and fine.

6. OFFENCES INVOLVING SEXUAL CRIMES

• Section 375: Definition Of Rape
  This section defines rape. Rape is committed if a man applies his mouth or penetrates his penis/ any object or into mouth, vagina, urethra, or anus; or manipulates any body part of a woman so as to facilitate penetration against the will of the woman or with her consent by coercing/ putting her under fear/ deceiving her to be her lawful husband or under intoxication or when she is under 18 years of age.
• Section 376: Punishment For Rape
  Rape is punishable with a minimum term of at least 10 years and with a fine that may extend up to life imprisonment. Rape by police officers, public servants, members of armed forces, jail staffs, hospital staff, staff of remand home, persons exercising fiduciary relationship, is punishable with rigorous imprisonment of five to ten years, extending to imprisonment for natural life along with fine.
• Section 376A: Punishment For Rape Resulting In Death
  This Section deals with punishment for causing death or persistently vegetative state of the victim due to rape. The offender will be liable with imprisonment of a minimum of 20 years which shall extend up to life imprisonment or even with death.
• Section 376AB
  Raping a woman under 12 years of age shall result in imprisonment of at least 20 years and with a fine, which may extend up to life imprisonment or with death.
• Section 376B
  Rape by husband upon his wife during the period of the decree of separation shall be punished with a term of at least 2 years, extendable up to 7 years, and with a fine.
• Section 376C
  Rape committed by people in authority, public servants, or by those in a fiduciary relationship, or by management of a hospital or by jail staff, shall be liable to be punished with imprisonment of a minimum of 5 years, which may extend up to 10 years, and with fine.
• Section 376D: Prescribes Punishment For Gangrape
  Rape committed by two or more men acting in furtherance of common intention shall be punishable with imprisonment of not less than 20 years which may extend up to life imprisonment.
• Section 376DA
  Rape of girls under sixteen years of age is punishable with imprisonment of a minimum of twenty years extending to imprisonment for natural life along with a fine.
• Section 376E: Prescribes Punishment For Repeat Offenders
  A person committing rape, who has been previously convicted of rape under Section 376, 376A-D, shall be punishable with imprisonment of life.

8. OFFENCES INVOLVING COMMITMENT OF CRUELTY BY HUSBAND UPON HIS WIFE

• Section 498A
  Cruelty includes the acts of harassment by the husband or his relative that is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb, or health; or any unlawful demand for any property or valuable security. The husband or his relative who subjects such women to cruelty shall be punished with imprisonment for a term which may extend to three years and with a fine.

CONCLUSION

Even in this 21st century, where the technological advancements and the cogent changes in the perception of the moral standards of Indian society have revolutionized our way of life, women continue to be subjected to multitudes of crimes every day. IPC as a criminal code provides the basic framework for legislative penal actions. It serves as a foundation and paves way for the introduction and enactment of specific women-centric legislative pieces to exhaustively address the issues of women and chalk out the way forward.

References:

1. Historical Introduction to IPC (PDF)
2. https://legislative.gov.in/sites/default/files/A1860-45.pdf

This article is written by Riya Ganguly, 2 nd year BBA LLB student at Bharati Vidyapeeth New Law College, Pune.

Equivalent Citation

[1992 SCR (1) 686, 1992 SCC Supl. (2) 651]

Bench

By Hon’ble Justice Sharma, L.M.,
By Hon’ble Justice Venkatachalliah, M.N.,
By Hon’ble Justice Verma, Jagdish Saran,
By Hon’ble Justice Reddy, K. Jayachandra and
By Hon’ble Justice Agrawal, S.C

Date of Judgment

February 18, 1992

Provisions Involved

Articles 102(2), Article 122(1), Article212(1), Article 368 of Constitution of India

Introduction

A constitution is a written document that contains rules, laws, and regulations for the government of a country. The Indian Constitution is regarded as the country’s supreme or “grundnorm” law. Its preamble speaks of people’s sovereignty, democratic polity, justice, liberty, equality, and brotherhood, all of which ensure the individual’s dignity as well as the nation’s unity and integrity. The Preamble is based on Nehru’s beliefs, which constituted the foundation for the constitution’s construction After the constitution was created, it didn’t take long for political insiders to convince Indian framers. Following Nehru’s death, India experienced a decline in political morals and an unpleasant increase in political corruption. The disorderly floor-crossing was a blow to the electoral system and weakened the government’s three organs. Parliament passed the Constitution (Fifty-Second Amendment) Act in early 1985, making defections illegal.

Factual Observations

The constitutional legitimacy of the Tenth Schedule established by the Constitution (Fifty-Second Amendment) Act, 1985, was challenged in the case of Kihota Hollohon v. Zachilhu and Ors. Writ Petitions, Transfer Petitions, Civil Appeals, Special Leave Petitions, and other proceedings presenting common questions were all heard jointly, bringing the petitioners together. The Constitution (Fifty-second Amendment) Act substituted the tenth schedule for four articles of the Constitution, namely 101(3)(a), 102(2), 190(3)(a), and 191(2). In a 3:2 judgment in the case, the Hon’ble Supreme Court upheld the constitutional legitimacy of the Anti-Defection Law. Justices M.N. Venkatachaliah, K.J. Reddy, and S.C. Agrawal made up the majority, while Justices L.M. Sharma and J.S. Verma made up the minority. Simultaneously, the Supreme Court ruled that the speaker’s directives under the law barring an MLA from serving because of defection are subject to judicial review.

Issues Raised

1. Whether the changes made by the 52nd amendment are legally acceptable?
2. Whether the additions made by the 52nd amendment have constitutional validity?

Applicability of Doctrine of Severability

As stated in the definition itself, the doctrine of severability can be applied to a composite amendment that contains amendments that do not require ratification by States as well as amendments that do require such ratification, and the amendment can be upheld in respect of the amendments that do not require ratification and are within the competence of Parliament alone by applying the doctrine of severability. Only the revisions to the proviso’s provisions that require approval must be struck down or declared illegal. The severability test asks the Court to determine whether the legislature would have adopted the legislation at all if the severed element was not a part of it, and if what remains after severance can stand alone and is functional.

The doctrine of severability applies when a piece of otherwise lawful legislation contains a provision that is invalid due to a lack of legislative competence, and the invalid section is severable, leaving the remaining valid provisions intact. This theory does not apply where legislation is invalidly enacted because of non-compliance with a mandatory legislative procedure, such as the mandatory special procedure for exercising constituent power. The theory does not apply to legislation that has not yet been enacted. Even if it may be feasible to keep a stillborn alive by surgical skillfully removing a congenitally faulty portion, it is not possible to infuse life into a stillborn referred in The Bribery Commissioner v. Pedrick Ranasinghe¹.

Laws/Provisions Involved

Schedule 10
The first paragraph begins with definitions, the second with disqualifications, the third with divisions within the party (now deleted by the 2003 amendment to the constitution), the fourth with a few disqualifications that do not apply just in mergers, and the fifth with some exemptions. The sixth and seventh paragraphs state who will resolve disputes and restrict courts from hearing concerns about a member’s disqualification, and finally, the last paragraph allows a speaker to make rules for a House to give effect to the provisions of the Schedule.

Most of these provisions are subject to adjudication and interpretation by the courts of the land. Paragraph 2, which outlines a member’s disqualifications, is perhaps the one provision that has been scrutinized by the courts.

Ratio Decidendi

People’s lifestyles shape the law’s profile, not the other way around. A finality clause is not a magical legislative incantation that prevents Judicial Review from proceeding. A decision’s statutory finality assumes and is dependent on its adherence to the law. The scope of judicial review under Articles 136, 226, and 227 of the Constitution in relation to an order made by the Speaker/Chairman under would be limited to jurisdictional errors, such as infirmities based on constitutional mandate violations, mala fides, non-compliance with natural justice rules, and perversity. The courts follow the notion that, notwithstanding a finality provision, it is open to the court to determine whether the action of the challenged authority is ultra vires the powers conferred on it. An action can be ultra vires if it is carried out in violation of a mandatory provision of the law granting the authority the ability to do so. If the authority’s powers are vitiated by mala fides or a colorable use of power based on extraneous and irrelevant considerations, it will be supra vires.

Case Law Referred

Eight sections of the Bombay Prohibition Act, 1949 were found illegal by the court in State of Bombay v. F.N. Balsara² on the grounds that they were in violation of certain constitutional provisions and essential freedoms. The Supreme Court ruled that the sections of the law that were declared unconstitutional were valid because they were not inextricably linked with the remainder of the Act, they were severable from the rest of it. It was one thing to say that the Legislature would not have enacted the Act, but it was another to say that the Legislature would not have enacted it. It would be impossible to pass the Act without adding the elements that were judged to be illegal.

Likewise, the Supreme Court stated in A.K. Gopalan v. the State of Madras³ that if a law is unconstitutional, just the part that is unconstitutional will be declared void, not the entire law, and every effort should be made to save as much of it as possible. If the invalid part’s omission has no effect on the character or structure of the document, it will be considered a severable legislative object.

Judgment

The minority judges held that the Constitution was violated because the Constitutional scheme for deciding on questions of disqualification of members after being duly elected contemplates adjudication of such disputes by an independent authority outside the House, namely the President or Governor, in accordance with the opinion of the committee, all of whom are high Constitutional functionaries.

The Election Commission came to the same conclusion as the minority judges in this instance. It issued suggestions in 1977, recommending that disqualification for defection be referred to the Election Commission for an opinion to be given to the President or Governor, because the matter might potentially be, and as with other disqualifications alluded to in Articles 102 and 191 of the constitution, the President or the Governor will act on the Election Commission’s recommendation.

As a result, it was determined that paragraph 6 of the Tenth Schedule did not create a non-justiciable territory. The Speaker/power Chairman’s to resolve disagreements could be considered judicial. The ‘finality clause,’ which prepared the way for the majority to prevail in the verdict, is an important construction.

Own Analysis/Opinion

The Anti-Defection Law was enacted to counteract the “evil of political defections.” However, the phrase “voluntarily giving up membership in a political party” must be defined more clearly. The President/Governor should make agreements under the Tenth Schedule based on the Election Commission’s binding advice. Disqualification should be limited to situations in which a member voluntarily resigns from his political party, abstains from voting, or votes against the party whip in a confidence/non-confidence vote.

The law that has prevented individual defections must now be used to prevent mass defections. It’s also necessary to challenge the speaker’s function. For his tenure, the speaker is reliant on the support of the legislature’s majority. As a result, he does not meet the criteria for an ‘individual adjudicatory body.’ It is not practical to repeal the Anti-defection law completely, but the long-term solution is to keep a check on political culture, and legislators who act in contempt or with mala fide intent should be voted out in subsequent elections, as the ultimate agency in the world’s largest democracy rests with the Indian people. That’s why the doctrine of severability has made it easy to combat with kind of issues and help in avoiding any kind of misuse of arbitrary powers.

The president of the parliament, and the governor of the state legislature, may report the subject to the Election Commission under Articles 102 and 192, respectively. This appears to be the only way to avoid the speakers’ political biases in their judgments. If the government wishes to keep the current arrangement, the Supreme Court will have to exercise far more judicial review power over the Speaker’s decision under the Anti-defection law than the Supreme Court is willing to do now under the Kihota Hollohon case.

Concluding Observations

After analyzing the situation in the instant case, it can be concluded that the concerns of construction and severability are distinct because, where more than one reasonable interpretation is available, one upholding the legitimacy of the legislation and the other invalidating it, the former would be accepted, and in the situation that both are possible, the former would be accepted.

If this isn’t practicable, the court has no choice but to decide whether the entire statute should be repealed, stricken down, or the excellent and bad elements can be separated. Also, the Separation of valid and invalid provisions of a statute is not determined by whether the law is enacted in the same section or in distinct parts; what matters is the substance of the matter, which must be determined through a thorough examination of the Act as a whole, as well as the enactment of the applicable provisions. Despite its relative obscurity, the philosophy has far-reaching implications. On the one hand, rejecting entire legislation for one erroneous provision is the most invasive remedy; on the other hand, the Supreme Court is hesitant about amending statutes by removing portions of them. Prior to the passage of the Tenth Schedule, there was no such thing as a “political party” under the Constitution, but their existence is now acknowledged under the Anti-defection Act.

Citations:

1. [1965] AC 172
2. AIR 1951 SC 318.
3. AIR 1950 SC 27.

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

INTRODUCTION

“The Indian constitution is first and foremost a social document, and it is aided by its Parts III and IV (Fundamental Rights and Directive Principles of State Policy, respectively) acting together as its chief instruments and conscience in realizing the goals set by it for all people.” The constitution was purposefully written in broad strokes (rather than ambiguous language) to ensure its flexibility. Constitutions are divided into two types: rigid and flexible. A constitution’s rigidity or flexibility is determined by the nature of the amendment. Anytime the ordinary laws and constitutional laws are amended separately, the constitution is rigid. In a flexible constitution, however, the two of them; ordinary laws and constitutional laws can be amended in an identical manner. The Indian Constitution is neither too rigid nor too flexible; rather, it is a hybrid of the two.

THE INDIAN CONSTITUTION

The Indian Constitution attempts to strike a balance between rigor and flexibility. A special majority of the Parliament, referring to the two-thirds majority of the members of each house i.e.; Rajya Sabha and Lok Sabha present and voting, the majority as well (which should be greater than 50%) of the total membership of each House, can change certain statutes.

Other clauses can be changed with a two-thirds majority in the Parliament and if there is ratification by half of the states. At the same time, there are certain provisions of the Constitution that can be modified in the ordinary legislative process by a simple majority of Parliament. The constitution’s flexibility is enhanced by provisions that allow the parliament to give an addition to the constitution’s provisions with legislation.

The basic structure concept was established in the Kesavananda Bharti case, which has unquestionably strengthened the constitution’s rigor. In fact, if the topic of Basic Structure arises, the Constitution of India is “completely rigorous” according to the Supreme Court. It clarifies that Parliament’s ability to amend the Constitution cannot be used to change, distort, or undermine the Constitution’s core characteristics and principles in any way.

The illustration of India’s constitutional nature has been outlined in this case, which allows for the Parliament to allow changes according to the ever-changing contexts, weighing the importance of such amendments. The Kesavananda case ruling was a thought-provoking, one-of-a-kind, and high-order decision. This 69-day case was meticulously examined, considering every possible outcome of the decision. After a thorough examination of the matter, it was clear that this ruling was required; otherwise, any political party with a two-thirds majority in parliament might propose any alteration that would jeopardize the constitution’s basic structure. Following the implementation of this ruling, the Judiciary, as mandated by the Constitution, is the last arbitrator in determining whether constitutional provisions have been violated. This case overruled Golaknath’s and opened the path for Parliament to fulfill its duty to construct an egalitarian society and welfare state in accordance with the Constitution’s Basic Structure.

This well-known case resulted in the creation of the basic structural theory, which went down in history as saving our constitution and restoring faith in the court, as well as saving the democracy of our country, for which the freedom fighters in the past gave their lives. As a result, the Kesavananda Bharati case has and will continue to have a place in our nation’s constitutional history.

RECENT AMENDMENTS MADE IN THE INDIAN CONSTITUTION

103TH CONSTITUTIONAL AMENDMENT ACT,2019
The Constitution (103rd Amendment) Act made in 2019 has altered two fundamental rights in the Indian Constitution, namely Article 15 and Article 16. These two clauses form the foundation of reservation in the realms of education and government employment. The state now has the power to establish a maximum of 10% quota for “economically vulnerable sectors” of citizens by adding two new paragraphs to Articles 15 and 16 of the Indian constitution. As a result, the total bookings over and above the existing program have increased to 59.50 percent.

Discrimination on the basis of race, caste, sex, religion, or place of birth is prohibited by Article 15 of the Indian Constitution. The amendment attempts to offer reservation to individuals who do not fall under 15(5) and 15 (4) (essentially, SCs, STs, and OBCs), i.e. economically disadvantaged sections so that they can be admitted to educational institutions other than the educational institutions for the minority mentioned in clause (1) of Article 30.

Discrimination in government employment is prohibited by Article 16 of the Indian Constitution. With the amendment, Article 16 (6) is inserted to enable reservations in government positions for people from economically disadvantaged groups. The “economic weakness” will now be determined based on “family income” and other “economic disadvantage factors.”

The Rs. 8 lakh income limit and asset restrictions to determine economic backwardness are the same as the bar set for determining the ‘creamy layer’ for OBC. This effectively eliminates the distinction between the “EWS other than SC, ST, and OBC-NCL” and the OBC-NCL under the 103rd Amendment. This would result in unequal being treated equally.

The Supreme Court has regularly held that overall reservations should not exceed 50% in order to be reasonable and to not jeopardize the basic right to equality. This ’50 percent ceiling’ however, has been effectively violated by the most recent Constitutional change.

Certain structural concepts, such as democratic government, republican government, secularism federalism, judiciary independence, freedom, equality, judicial review power, and so on, form the core or essence of the Constitution and give it a distinct ‘Identity’. This is dictated by the idea of basic structure, and it cannot be changed since it would jeopardize the constitution’s uniqueness.

The Supreme Court ruled in the landmark case of Kesavananda Bharati v. the State of Kerala that the Parliament’s power to amend the Constitution under Article 368 is not absolute and that even a constitutional amendment can be taken down if there are chances of it abrogating or destroying the Constitution’s “basic structure.” In September 1991, the then-P.V. Narasimha Rao government issued an Office Memorandum reserving ten percent of postings for ‘other economically deprived categories.’ The Supreme Court overturned this verdict in Indra Sawhney v. Union of India. The court in Indra Sawhney v. Union Of India and Ors. examined the constitutionality of the quotas in-depth, delving into the idea of backwardness. The reservation was made for a category of citizens who, according to Dr. BR Ambedkar, are those “groups which have not had so far representation in the State.” Indra Sawhney explains one of the reasons behind the 50 percent quota limit, stating that the Constitution allows for “appropriate representation” rather than “proportionate representation.”

The following are some of the key decisions made in the Indra Sawhney case regarding reservation:
• It supported the OBC reserve of 27%, with the exception of the “creamy layer.”
• It overturned the ten percent reservation for economically disadvantaged people, ruling that a backward category of citizens shall not be defined only on the basis of economic factors.
• It ruled that reservations for brought-forward or piled-up reserved vacancies should not exceed 50% of all appointments each year.
• It ruled that reservations can only be made in service or category if the State is satisfied that the representation of the backward class of citizens is insufficient.

In M. Nagaraj v. Union of India & Ors, the Hon’ble Court upheld the constitutional validity of Article 16 (4A) and the proviso to Article 335 and emphasized that the 50 percent ceiling, the concept of creamy layer, and compelling reasons such as overall administrative efficiency, backwardness, the inadequacy of representation, and are some of the constitutional requirements without which the point of equality for opportunities in Article 16 would be lost. Excessiveness in any form of reservation or evaluation, it has also been suggested, would result in a violation of this constitutional requirement. Because of this, the 50 percent reservation bar has been embedded into the fundamental structure of the Constitution’s code of equality.

The Supreme Court ruled in State of Kerala v. N.M. Thomas that Article 16(1), as a component of the notion of equality, allows justifiable categorization of all citizens who are in a similar situation with respect to the law. In other words, even if Article 16(4) of the Indian constitution is not there, Article 16(1) enables reserves and special treatment. Article 16(4) is not be made an exception to Article 16(1); rather, it aims to express what is already inherent in Article 16. (1).

Indra Sawhney provides a midway ground between N.M. Thomas and M.R. Balaji, according to the Supreme Court’s decision. It found a compromise between substantive equality and nominal equality by retaining the ‘50% ceiling’ criterion.

104th Constitutional Amendment Act, 2020
This Act abolished Anglo-Indian reservations in the Lok Sabha and state legislatures while extending reserves for SCs and STs for up to ten years. On December 9, 2019, Minister of Law and Justice Ravi Shankar Prasad introduced this bill for amendment in the Lok Sabha. The bill intended to modify Article 334 of the Constitution. On December 10, 2019, the Lok Sabha passed the Bill with 355 votes in favor and there were 0 votes against it. On December 12, 2019, the bill was introduced in the Rajya Sabha, where it gained 163 votes in favor and there were 0 votes against it. President Ram Nath Kovind of India gave his assent to the law on January 21, 2020, and it was published in the Indian Gazette the same day. On January 25, 2020, the amendment took effect.

Aside from the fact that the Scheduled Castes and the Scheduled Tribes have shown some significant progress for the last 70 years, the reasons that played a part in the Constituent Assembly’s decision to make provisions for the aforementioned reservation of seats still exist, according to Minister of Law and Justice Ravishankar Prasad. Due to this, an amendment to the Constitution was needed in order to keep the Constitution’s inclusive nature as intended by the founding fathers.

The Ministry of Law and Justice further stated that the issue of the extension of Anglo-Indian reservation in the Legislative Assembly had not yet been raised. However, he stated that the matter of terminating the reservation will be addressed by the center at a later date and that the subject matter has not been completely resolved.

The reservation seats for the Anglo Indians were not extended as it was for Scheduled Castes and Scheduled Tribes, which was one of the main criticisms of the amendment. The objective and reason for such an Amendment, provide justification for such enactment. The 104th Constitutional Amendment’s declaration of goal and reason explains the enlargement of the SC and ST reservations but it does not explain why the Anglo-Indian reservation seats were not extended or increased.

In Prashar v. Vasantsen Dwarkadas (1963), the Supreme Court decided that the statement of purposes and reasons for adopting a piece of law cannot be used to interpret the statute if the language used is plain enough. The declaration of objects and reasons, on the other hand, can be utilized to figure out what led to the law and what the problem was being solved through the legislation.

Parliamentarians have considered the interpretation of extending for SCs and STs with the goal of the founding authors of the Constitution. However, when it came to Anglo-Indians, the approach was not in the spirit of the founding fathers, but rather based on numerical data from the 2011 Census, rather than the report on the Anglo-Indian Community given by the 2013 Ministry of Minority Affairs. Anglo-Indians face challenges such as loss of culture, unemployment, identity crisis, educational backwardness, and a lack of acceptable housing amenities, according to a 2013 Ministry of Minority Affairs fact-finding report.

105th CONSTITUTIONAL AMENDMENT ACT, 2021
On August 9, 2021, the Ministry of Social Justice and Empowerment introduced the 127th Amendment Bill of the Constitution, which was later approved as the 105th Constitution (Amendment) Act. both the Houses of the legislature passed the act unanimously without delay on subsequent days. The major goal of enacting this Act was to bring back the states’ ability to identify their own state’s backward classes.

SEBC and OBC
In India, the Centre creates a separate list that recognizes the Other Backward Classes (OBC). Similarly, each State determines which classes are classified as Socially and Educationally Backward Classes (SEBC) of that state. Articles 15(4), 15(5), and 16 of the Indian Constitution have established these lists which are essential for the framework of reservation and quotas.

The Constitution (102nd Amendment) Act of 2018 was enacted to address the Central List of Socially and Educationally Backward Classes (SEBCs). Independent lists of the backward classes have been maintained by the Central Government and the State Governments since 1993. However, the Constitution (102nd Amendment) Act of 2018 raised the question of whether it mandated a single Central List of SEBCs detailing the SEBCs for each State, removing the State’s ability to establish and maintain its own State List of SEBCs. Furthermore, because authority has already been given to the Central government to issue lists, including Central in the then-amended Article 342A was redundant.

A contentious piece of legislation- which is The Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, 2018, was considered unconstitutional until the Supreme Court pronounced it illegal in Jaishri Laxmanrao Patil v. Chief Minister (2021).

Several writ petitions challenging the constitutional legality of the reservation act have been filed in the Bombay High Court. The petitioner’s primary points of contention were as follows:

The Act is unlawful because it exceeds the 50% ceiling established on a reservation in any state according to the Indra Sawhney v. Union of India decision (1992).

The Act establishes reservations based on the Justice Gaikwad Commission’s findings, which purportedly lacks trustworthy, scientific, and appropriate facts to prove either Marathas’ backwardness or the extraordinary circumstances that justify raising reservations in Maharashtra.

The Act establishes reservations based on the Justice Gaikwad Commission’s findings, which purportedly lacks trustworthy, scientific, and appropriate facts to prove either Marathas’ backwardness or the extraordinary circumstances that justify raising reservations in Maharashtra.

The state government had passed the Act without complying with the 102nd Constitution (Amendment) Act’s procedural provisions.

The respondent- The Maharashtra State Government, argued that special circumstances, such as an increase in the incidence of suicides among Maratha families due to social and economic issues, justified the Act.

The Bombay High Court upheld the reservation for the Marathas but requested the state administration to cut it to 12-13 percent — the level proposed by the State Backward Class Commission, as opposed to the 16 percent given by the Act. The rationale was that, as the Maharashtrian government demonstrated, the Supreme Court-imposed ceiling on the total percentage of seats might be exceeded in extraordinary situations.

The Supreme Court accepted an appeal from the Bombay High Court’s verdict for the Maharashtra state government on July 12, 2019. The bench overturned the High Court verdict and declared the SEBC Act unconstitutional since there were no special circumstances that allowed for the violation of the 50% reservation mark. This was the unanimous decision of the Bench.

Meanwhile, the majority of the Bench, with two exceptions, believes that the 102nd Amendment deprives the state of the ability to identify backward classes. According to the ruling, only the President can issue a list that points out the economically disadvantaged, which Parliament can then change. In this regard, states merely have a recommending power. On this point, Justices Bhushan and Nazeer dissented, believing that Parliament did not have any intention to withdraw the States’ identification authority.

CONCLUSION

The Indian Constitution is a fusion of the United States’ basic law doctrine and the United Kingdom’s unwritten constitution’s theory of Parliamentary sovereignty. In other words, the Constitution is very stiff that Parliament, the supreme law-making body, cannot modify it. India picked a medium ground between the formality of the United States Constitution and the flexibility of the United Kingdom’s unwritten customs in order to allow the new nation to grow smoothly.

These Constitutional Amendments are significant because it reflects our society’s growing need for development and advancement, particularly among those who need it the most due to their backwardness. The fact that many communities require the presentation of the OBC category for reasons other than political power is linked to the belief that many of them have a lot of room for development in India. The severe caste system has yet to be dismantled, and this bleak reality requires further reflection and policy creativity. Another problem raised by this Amendment is how will the responsibilities be carried out by the states, as states will now be driven by local politics to include newer communities in their OBC lists.

As a result of the Constitution Amendment Bill, the standard operating procedures of the OBC, the scheduled castes, and tribes reserve have been clarified, ensuring empowerment and representation for communities that are frequently left out of inclusive development debate. Its goal is to empower people from underdeveloped communities by improving their social status via quality education and job opportunities, paving the road for inclusive development.

Written by Tingjin Marak, a student at Ajeenkya DY Patil University, Pune.

Bench

Justice Indu Malhotra, Justice L. Nageswara Rao

Date of Judgment

9th July 2020

Provisions

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

Cases Referred

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

Introduction

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

Factual Background

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

Issues Raised

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

SC Analysis and Judgment

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

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

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

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

Conclusion

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

Citations

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

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