Tag: #supremecourtcase

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

By Hon’ble Justice Mr. Deepak Gupta and By Hon’ble Justice Mr. Aniruddha Bose

Advocates

Pritha Srikumar, Arunima Kedia (Appellant Side) & B.V. Balaram Das, Hrishikesh Baruah (Respondent’s Side)

Cases Referred

Dr. Subhramanium Swamy And Ors vs Raju through the Member Juvenile Justice [, SC (2014) 8 SCC 390]

Factual Observations

• A juvenile ‘X’, aged 16 to 18, is accused of committing an offense punishable under section 304 of the Indian Penal Code, 1860 (IPC)¹, which carries a maximum penalty of life imprisonment or up to ten years in prison and a fine in the first part and up to ten years in prison and a fine in the second part.
• The deceased in the car accident was the appellant’s brother. The Juvenile was between the ages of 16 and 18 at the time of the incident. The appeal to the Children’s Court was similarly turned down. Following that, the juvenile ‘X’ sought the High Court of Delhi through his mother, who ruled that because no minimum term had been set for the offense in question, it did not fall under the purview of section 2 of the Juvenile Justice Act, 2015. The deceased’s sister has now filed an appeal before the Supreme Court.
• Heinous, petty, and serious transgressions are defined in sections 2(33), 2(45), and 2(54). In the IPC or any other legislation in force, heinous offenses are those for which the sentence imposed is a minimum of 7 years in prison or more.
• Siddharth Luthra, counsel for the appellant, pointed out to the Court that the Juvenile Justice Act has left out the fourth category of offenses for which the minimum sentence is less than 7 years, or for which no minimum sentence is prescribed but the maximum sentence can be more than 7 years, including homicide not amounting to murder (offense of present case). He persuaded the Court to remove the word “minimum” from the definition of heinous crimes, allowing all crimes to be categorized as “heinous crimes” with the exception of minor and serious offenses.
• Furthermore, he argued that leaving out the fourth category of charges would result in absurdity, which could not have been the legislature’s objective.
• Mukul Rohtagi, a skilled senior attorney for the Juvenile, contended that the Court could not amend the law. He stated that the Court could not interpret the legislature’s meaning since a category of offenses was left out and that the Court could not interfere to close the gap in the Act.

Issues Raised

1. What does Section 2(33) of the Juvenile Justice (Care and Protection of Children) Act, 2015 mean and how is it interpreted?
2. What is the uncertainty created by the word “minimum” in the Statute, and how is it interpreted?
3. How can a juvenile be treated under a category of an offense that is not defined in the statute but that the appellant argues should be included as an offense?

Contentions

APPELLANT

• The appellant claimed that there was one type of crime that was not addressed in the Act of 2015, claiming that heinous crimes are those that carry a “minimum” sentence of seven years or more.
• The unincluded category, it was said, would introduce absurdity, which the Legislature did not intend. The argument was that the Act had a gap in it that generated ambiguity and, as a result, did not specify anything.
• It was also claimed that the word “includes” was used in the definition of “heinous offenses”² implying that the definition is inclusive and encompasses things not mentioned in the definition.

RESPONDENT

• The appearing counsel argued that the Court was not in a position to rewrite the legislation and that the Court could not deduce the Legislature’s intent only based on an unincluded category of offenses.
• Even if the court had to fill the gap in the Act, it was claimed that this was not practicable in this case.

Difference of Opinion B/W Lower Court and SC

The crucial question before the court was whether the youngster should be tried as an adult or not. In this case, the child was over the age of 16 but under the age of 18 when he committed the offense.

Juvenile Justice Board– Because the youngster committed an offense under the definition of a ‘serious’ offense, the Juvenile Justice Board ordered that he be punished as an adult. The mother of the kid then petitions the High Court because the sentence for the offense was not passed under Section 2 (33) of the Juvenile Justice (Care and Protection of Children) Act, 2015.

High Court– High Court stated that if a kid has committed any heinous offense such as rape or murder, which is punished for more than 7 years, a punishment similar to that given to an adult can be imposed. The order was found to be inconsistent, prompting an appeal to the Supreme Court.

Supreme Court– It was determined that this Act does not apply to the fourth category of offenses, which are penalized for more than seven years but do not include a minimum sentence or a sentence of fewer than seven years. As a result, under the context of this Act, this is referred to as a “serious offense”. This type of issue is to be dealt with according to this procedure unless the Parliament itself deals with it.

Judgment of SC

Luthra’s submission reasoned that it was not the Court’s responsibility to fill in the gaps and fix them. The Court stated that if the legislature’s purpose was clear, it might add or remove terms from the Act. However, in cases where the legislature’s intent is uncertain, the Court cannot add or remove words to provide meaning that the Court deems fit into the scheme of things. The Court was interpreting a statute, which had to be construed following its wording and intent.

The Court dismissed the appeal by resolving the issue and ruling that an offense that does not carry a minimum penalty of seven years cannot be considered terrible. The Act, however, does not address the fourth category of offenses, namely, offenses where the maximum sentence is more than seven years in prison but no minimum sentence or a minimum sentence of fewer than seven years is provided, shall be treated as ‘serious offenses’³ within the meaning of the Act and dealt with accordingly until Parliament takes a call on the matter.

Unless the Parliament acts with it, this type of matter must be dealt with using this approach. It was decided that the Legislature’s objective does not have to be the same as the judge believes it should be. When the statute’s wording is obvious but the Legislature’s intent is ambiguous, the Court cannot add or remove terms from the statute to give it a meaning that the Court believes fits into the scheme of things. However, if the Legislature’s aim is obvious, the Court can see behind the statute’s inartistic or clunky wording and determine the problem that must be handled under the code’s objectives. The court also ordered the High Court to remove the child’s name from the Child in Conflict with the Law registry. As a result, the case was resolved in favor of the child.

Ratio Decidendi:

The rationale or the ratio decidendi is one of the crucial aspects in analyzing the mindset behind a judgment. According to Section 14 of The Children Act, 1960, If the child offender has committed a heinous crime, the Juvenile Justice Board must conduct a preliminary examination to determine the child’s mental and physical capacity to commit the crime, as well as the child’s ability to comprehend the consequences of the crime and the circumstances in which the crime was allegedly committed. The Board has the authority to enlist the assistance of experienced psychologists, psychosocial workers, or other field experts. The statement makes it clear that the preliminary assessment will not focus on the trial’s merits or the child’s allegations.

Further, under section 15 of The Children Act, 1960 –
(1) There is a need to try the child as an adult under the provisions of the Code of Criminal The procedure, 1973 (2 of 1974), and pass appropriate orders after trial, subject to the provisions of this section and section 21, taking into account the child’s special needs, the tenets of a fair trial, and maintaining a child-friendly environment;
(2) There is no requirement for the child to be tried as an adult, and the Board may conduct an inquiry and issue appropriate directions in accordance with section 18. (2) In the case of a child in conflict with the law, the Children’s Court shall ensure that the final order includes an individual care plan for the child’s rehabilitation, including follow-up by the probation officer, the District Child Protection Unit, or a social worker.

In Dr. Subhramanium Swamy And Ors vs Raju through the Member Juvenile Justice…, on 28 March 2014⁴, only one of the five people was not sentenced to death by the session court on March 28, 2014, according to the Member Juvenile Justice… In their appeal, the petitioners demanded that the juvenile be prosecuted and punished alongside the other four defendants. The first appeal, which was dismissed by the Delhi High Court, was filed. Another appeal was filed with the Supreme Court, but it was dismissed. As a result, Dr. Subhramanian Swamy’s application was denied by the Supreme Court. Furthermore, the court dismissed the victim’s parents’ writ suit.

Concluding Observations:

After analyzing the situation in the instant case, while acknowledging that the court cannot legislate, the reasoning of the bench that if it did not address the issue, the Boards would have no guidance on how to deal with children who have committed fourth-category offenses is concluded to be to the point. The court stated, “Since two viewpoints are feasible, we would prefer to choose the one that is in favor of children.” The bench, therefore, invoked its authority under Article 142 of the Constitution to order that, as of the date the 2015 Act took effect, all children who committed fourth-category offenses to be treated in the same way as children who committed serious offenses. Still, there is a need to make some serious amendments in the BOOKS OF JUSTICE.

We all know the maxim ‘Salum Populi Suprema Lex’ which means ‘the welfare of the society is the supreme law’, but unfortunately the court failed to apply the same in the recent case. I believe that sending the accused to a reform center will not affect him because his parents, who were aware of his repeated infractions, did nothing to stop him and may be able to “buy the system completely.” I personally feel that these verdicts by the Apex Court only encourage teenagers to become criminals and nothing else. A perfect example of the same is NIRBHAYA CASE.

References:

1. Section 304 of the Indian Penal Code, 1860: Punishment for culpable homicide not amounting to murder
2. Defined in Section 2(33) of the Juvenile Justice (Care and Protection of Children) Act, 2015
3. Defined in Section 2(54) of the Juvenile Justice (Care and Protection of Children) Act, 2015
4. Dr. Subhramanium Swamy And Ors vs Raju through the Member Juvenile Justice, SC (2014) 8 SCC 390.

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

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.

Whenever one’s right is wronged, it is imperative that there is always some way to remedy that sufferance or injury caused to that person, to bring back the conviction of being just in a just society. It is done to bring about that same level of equilibrium prior to the right being wronged, the damage and injury caused. One can use the imagination of a scenario where one is wronged and has suffered some type of damage but if there was no remedy, the sufferings of that person would be prolonged, contributing to lack of peace and hence rendering the society’s system as being ineffective. If there is no relief, it would only lead to pent-up frustration and a feeling of insecurity. There would be constant feelings of apprehension due to a lack of guarantee of restoration, which would have been an important tool to the path of peace and security. Hence, the concept of torts came into the practice for this very purpose; to restore the victim of the wrong to their previous position prior to that action that led to injury or damage.

INTRODUCTION OF TORT LAW

The beginning of the Law of Torts can be followed by Roman statute alterium non-laedere. The saying signifies “not to harm another” for example not to hurt anybody by deeds or words. This saying is like trustworthiness vivere which signifies “to live respectably” and suum inner circle tribuere which is disclosed as to deliver to each man that has a place with him or it is an overall articulation to give equity to every individual. This multitude of three sayings can be ascribed for the advancement of the Law of Torts.

The fundamental goals of tort law are to compensate affected parties for harms inflicted by others, to hold those responsible that caused such injury, and to deter others from harming others. Torts allow the degree of loss to be shifted from the party who was injured to the party who caused it. Typically, a person seeking remedies under tort law will seek monetary compensation in the form of damages.

Remedies that are not normally used are injunction and restitution. The common law, the system that India follows, and state statutory law set the limits of tort law. Judges have broad discretion in assessing which activities qualify as legally cognizable wrongs, which defenses may outweigh any particular claim and the appropriate measure of damages when interpreting statutes. There are variations in the tort law across states of a country. There are three types of torts- Intentional torts (e.g., purposefully hitting a person); negligent torts (e.g., creating an accident by failing to respect traffic laws); and recklessness torts (e.g., causing an accident by deliberately failing to obey traffic rules).

TORT LAW IN INDIA

Because tort law is comparable throughout common law jurisdictions, courts have frequently relied on case law from other common law jurisdictions, like the United Kingdom, Australia, and Canada, in addition to local precedent. When applying foreign precedent, however, consideration is given to local norms and conditions, as well as India’s unique constitutional framework. The legislature has also enacted legislation to address specific societal issues. Aspects of tort law have been codified, as they have in other common law countries.

The Indian Penal Code or other criminal legislation may make some behavior that gives rise to a cause of action under tort law illegal. When a tort is also a criminal offense, the aggrieved party is nevertheless entitled to seek redress under tort law. The overlap between the two domains of law is due to the different purposes they serve and the different types of remedies they offer. Tort law tries to hold a tortfeasor accountable, therefore tort proceedings are taken directly by the aggrieved party to obtain damages, but criminal law intends to punish and discourage conduct that is regarded to be against the interests of society, so criminal actions are conducted by the government.

As in other common law jurisdictions, tort law in India is primarily guided by court precedent, reinforced with statutes governing damages, codifying common law torts, and civil procedure. A tort, just like other common law jurisdictions, is a breach of a non-contractual duty that causes harm to the plaintiff and gives rise to a civil cause of action with a remedy. Because the reason for tort law is to provide a solution to the individual who has been hurt, if a remedy is not present, it will be considered that a tort has not been committed.

Despite the fact that Indian tort law is largely inherited from English law, there still are distinctions between the two systems. Indian tort law is unique in that it provides remedies for constitutional torts, which are government activities that infringe on constitutional rights, as well as an absolute liability system for enterprises involved in hazardous conduct.

So, considering that the basic rule of torts is to compensate the value corresponding to the damage or injury caused, how is such a practice calculated? In India, damages are based on the principle of restitutio ad integrum. In all circumstances, India uses a compensatory approach and argues for “full and fair compensation.”

The Indian court will seek similar cases to compare when assessing the number of damages. The multiplier approach, which awards compensation corresponded to the degree of compromise to the victim’s earning power, is used in India to calculate damages in tort cases.

The fair and just amount refers to the number of years’ purchase upon which loss of reliance is capitalized under the multiplier technique. Then, in order to account for future uncertainty, a reduction in the multiplier would also have to be made. Under the Motor Vehicle Act, the multiplier concept is enshrined in the statute for tortious proceedings that involve personal injuries that have been caused by motor vehicles. The court will, however, take inflation into consideration when determining damages.

Now, in case of calculating personal injuries, in tort lawsuits involving personal injury, Indian jurisprudence recognizes seven distinct forms of harm where damages may be awarded. These categories are known as heads of claim, and they can be separated into non-pecuniary and pecuniary, similar to the more general distinction established in other common law jurisdictions between economic and non-economic damages. The following financial grounds of claim are recognized by Indian tort law:

• Earnings are lost.
• Expenses for nursing care, hospital, and medical.
• Matrimonial prospects are dwindling.

The following non-monetary heads of claim are recognized by contemporary Indian jurisprudence:

• Loss of hope for the future.
• Loss of luxuries or the ability to enjoy life.
• Physiological function loss or impairment.
• Suffering and pain.

INTENTIONAL TORTS

Intentional torts are harms that the defendant has had the intentions to do or should have had an expectation to occur as a result of his or her action or omissions. When the defendant’s such acts or omissions were unreasonably dangerous, they are called negligent torts. Unlike deliberate and torts of negligence, torts of strict liability are unaffected by the defendant’s level of care. Instead, in these situations, the courts look to see if a specific result or injury occurred.

Some moves should be made with a reason to submit a deliberate misdeed and wrong, for example, an intention is a must for an act to be committed. It is fundamental that there is a psychological component.

The Supreme Court declared in the State of Maharashtra versus M.H. George that criminal intent is a psychological truth that must be proven even in cases involving exceptional conduct unless it is clearly ruled out or ruled out by whatever necessary inference.

That is because Mens rea, or the purpose to commit a criminal act knowing the negative consequences, is one of the most fundamental elements of a crime. Mens rea is expressed by the use of phrases like intention, malice, fraud, irresponsibility, and so on. Before committing an offense, one must be a guilty mind. Mens rea include what the person is intending to do and the refusal to perform anything that is demanded of you. The mere intent to commit a crime is illegal in and of itself. An accused will be found guilty if it is proven that he intended to commit the crime, however, the burden of proving it is on the other side, and there must be sufficient evidence to decide that intention exists.

In Ramachandra Gujar’s case, the court held that a person’s intention may only be inferred from their actions and that the likely consequences of such actions must also be considered.

NEGLIGENCE TORTS

Negligence is a type of civil tort that occurs when a person violates his duty of care to another, causing that other person to suffer harm or face legal consequences. In tort law, negligence can take the following forms, that is, a method of committing various torts such as trespassing or causing a nuisance. It can be considered as a separate tort by itself.

Negligence’s Essentials
The plaintiff must show that the defendant had a duty of care that was owed to him and that this duty was breached. The nature of negligence liability is strictly legal, does not have to be moral or religious. ‘Duty’ might be seen as a responsibility to be cautious of others.

Duty Violation: The second stage is to prove that there was an actual breach of duty once the first criterion has been demonstrated. The defendant is expected to perform his responsibilities in a rational manner. The deciding factor is whether or not the defendant exercised reasonable caution.

Damage: The plaintiff must have suffered some loss as a result of the defendant’s breach of duty. The case of Donoghue v Stevenson represents a watershed moment in the history of the tort of negligence. The plaintiff, in this case, went to a cafe to order a ginger beer, that was sealed with an opaque cork. When the contents of the bottle were emptied, a decaying body of a snail emerged. The plaintiff became ill as a result of consuming some of the tainted contents of the bottle.

The court determined that a manufacturer that manufactures a product for the end consumer on the basis that the consumer will be injured if the manufacturer fails to exercise reasonable care, does owe a duty of care to the plaintiff.

RECKLESSNESS

A person’s actions might sometimes be so rash that they become the subject of a criminal investigation or a lawsuit. If a person acts recklessly with complete disregard for the safety of others and has the knowledge or should that his activities may cause injury to others, he may be held accountable for the injuries produced by his actions. It suggests the person was aware (or should have been aware) that his or her actions had the potential to damage others.

Recklessness is defined as behavior that is less than intentional but more than mere negligence. Unlike negligence, which occurs when a person takes an action with a risk that they should have known about, recklessness refers to taking a risk knowingly.

For example, the Supreme Court has defined what constitutes criminal culpability and differentiated between recklessness, negligence, and rashness. A person is said to have acted negligently when he or she accidentally commits an act or omission that would cause a breach of his or her legal duty, according to the law. A person who has done rashly when he or she is aware of the consequences but stupidly believes that they will not materialize as a result of his or her actions. A careless person is aware of the repercussions yet is unconcerned about whether or not they are the result of his or her actions. ‘Any behavior that is not adequate to recklessness and wilful wrongdoing shall not be subject to criminal prosecution,’ the Court stated in Poonam Verma VS. Ashwin Patel.

Many risky activities are prohibited by state law, and irresponsible actors are viewed as social risks because they jeopardize the safety of others. A person who has been hurt as a result of another’s negligence may be entitled to compensation for medical bills, rehabilitation, pain, lost wages, and suffering. Furthermore, recklessness may allow compensation from those who are normally free from liability for simple negligence, like government employees and health care providers.

Recklessness is a subjective as well as objectively defined state of mind. There are two kinds of irresponsible behavior. The first examines what the performer knew or was thought to be thinking at the time of the act (subjective test). The second evaluates what a person with a reasonable mind in the defendant’s circumstances would have believed (objective test). In all cases, the question is whether the person was aware (or should have been aware) that his acts could injure someone else.

It is dangerous, for example, for a car driver to purposely cross a highway in violation of a stop sign if traffic is approaching from both directions. In comparison, he does not stop since his attention is diverted and he is unaware that he is approaching the crossing which otherwise would be considered negligent.

CONCLUSION

Tort law allows for not only full recompense for victims, but also for the revelation of wrongdoing and the discouragement of malicious or negligent acts. A verdict of the court can be spread all over the country, if not the world, and can result in harmful practices being changed or stopped. Tort law has progressed to level the playing field, having roots in English common law. It empowers those without resources to compete with anyone on the globe, not just direct action. Any multi-billion-dollar enterprise or overreaching government agency. Besides only compensating an injured sufferer, tort law offers further advantages. Automobiles, the roads, toys, and foods are safer.

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

INTRODUCTION

Any claim made in the suit flows from the cause of action, and claims made must be with respect to the cause of action from which they derive. In Om Prakash Srivastava v. Union of India and Anr., the Supreme Court stated that “Cause of Action” refers to the conditions that constitute a violation of a right or an urgent cause for a reaction in a limited sense. Due to the facts or circumstances, several causes of action may arise in some situations. Contractual actions, statutory causes of action, and torts including assault, battery, invasion of privacy, and defamation are only a few examples.

CAUSE OF ACTION, SECTION 20, CPC

“Cause of Action” as defined by section 20 of the Civil Procedure Code of 1908, is any fact that must be proven in support of the right to obtain a judgment. The term Cause of Action is mentioned in the CPC in various places. Under the Civil Procedure Code, 1908, Order II Rule 2, it is stated that a plaint must mention the cause of action if it is to be instituted as a suit. Order VII Rule 1 reaffirms the same. Further, Order I Rule 8 states in the explanation that the parties represented in the litigation do not have to have the same cause of action as the person representing them and Order II Rule 7 explains in detail whether an objection to misjoinder of the cause of action should be submitted before the matter appears in the suit if such a complaint is valued at that time.

As stated at the outset, a Cause of Action is not only an important part of a Civil Action, but it is also the cause for the civil suit’s existence. It establishes the disputed topic or the genuine nature of the parties’ relationship. If there is no cause of action, there will be no litigation. Although, inside the CPC, the cause of action has yet to be defined.

PURPOSE OF ORDER 7 RULE 11 OF CPC

Order 7 Rule 11 of CPC provides litigants with the option of seeking an independent and special remedy, allowing courts to dismiss a suit at the preliminary stage without recording evidence and proceeding to trial based on the evidence presented if they are satisfied that the action should be dismissed on any of the grounds outlined in this provision.

In the case of Dahiben v. Arvindbhai Kalyanji Bhanusali¹, the SC reviewed several precedents on the underlying goal of O7 R 11 while dealing with the appeal before it. The court would not allow protraction of the proceedings if no cause of action is disclosed in the plaint or if the suit is precluded by limitation. In this instance, it would be important to put an end to the phony litigation to avoid wasting more judicial time. It opined, citing Azhar Hussain v. Rajiv Gandhi², that the main aim of conferring such powers under O7 R 11 is to ensure that useless and bound to prove futile litigation should not be allowed to consume the time of the courts and exercise the mind of the respondent.

The Supreme Court went on to say that while considering a motion to dismiss a plaint, courts should look at the plaint’s averments in light of the documents relied on to determine if they reveal a cause of action. In this regard, it was also stated that courts would have to disregard the defendant’s pleadings in the written statement and application for dismissal of the plaint on merit when making such a conclusion. As a result, the Supreme Court stated that when deciding any application submitted under O 7 R11, the courts should limit themselves to the plaint and not delve into the specific facts outlined in the written statement or even the O7 R 11 application.

CASE LAWS

Subodh Kumar Gupta v. Srikant Gupta and Ors.³
In this case, an agreement was composed in Bhilai for the dissolution of the partnership and distribution of partnership assets. The Supreme Court held that the agreement was void and had to be ignored at the threshold to save the time of the court and to safeguard the parties from any harm. Further, it held that Chandigarh Court had no jurisdiction to hear the suit as part of the cause of action that arose at Mandsaur.

Bloom Dekor Ltd. v. Subhash Himatlal Desai and Ors.⁴
According to the Supreme Court, the cause of action encompasses those circumstances that, if present, would enable the plaintiff to provide support for his entitlement to a court judgment. That is, a set of facts that the plaintiff will use to substantiate his or her case.

M/S South East Asia Shipping Co. Ltd. vs M/S Nav Bharat Enterprises Pvt.⁵
The Supreme Court ruled that a cause of action is made up of a group of circumstances that constitute grounds for bringing a civil action for redress in a court of law. In other words, it’s a series of circumstances that gives the plaintiff the right to sue the defendant under the legislation that applies to them. The court further stated that a cause of action must include any conduct committed by the defendant because, without one, no cause of action will likely develop.

Raghwendra Sharan Singh vs Ram Prasanna Singh⁶
In this case, the cause of action arose when the injured party disputed the gift deed after approximately 22 years from the date of the equivalent’s execution. The offended party in the situation has contested the gift deed, claiming that it is a garish one that is therefore not authoritative. After hearing both sides’ perspectives on the facts of the case, the Hon’ble Supreme Court ruled that the Statute of Limitations indisputably bars this lawsuit. Furthermore, the plaint should be dismissed according to CPC Order VII Rule 11.

Rajasthan High Court Advocates Association vs Union of India & Ors.⁷
In this case, the court held that every fact that must be proved, as opposed to any piece of evidence needed to prove each fact, must have been mentioned the essential element of ’cause of action’ according to the Rajasthan High Court. In each circumstance, the location of the cause of action must be determined.

As a result, the court will only be justified in dismissing the plaint for failure to disclose a cause of action if it considers the claims in the plaint and decides that they do not reveal any cause of action, assuming the allegations are true. However, if the court finds that there is no cause of action for the suit after reviewing all evidence and materials after the trial, the suit is dismissed rather than the plaint rejected.

OBSERVATIONS

The plaintiff’s lawsuit may be dismissed at the outset if the cause of action is not adequately established just like in the recent case. In such a case, no court proceedings will be continued in the first place to save the time of the court and to prevent such malice. Further, the claims must be backed up by facts, law, and a conclusion drawn from the law’s application to the facts.

A statement of facts in a battery case, for example, might be “While walking through XYZ Store, the plaintiff was tackled by the defendant, a store security guard, who knocked him to the ground and held him there by kneeling on her back and holding his arms behind him, while screaming in his ear to open his bag. The plaintiff suffered injuries to her head, chest, shoulders, neck, and back as a result of these actions.”

However, the facts or circumstances that lead to a person seeking judicial redress may give rise to multiple causes of action. In the previous case, the plaintiff could allege assault, battery, intentional infliction of emotional distress, and violation of Civil Rights.

CONCLUSION

As for this regulation, the term “cause of action” refers to the key facts that make up the right and its infringement, which authorizes a person to sue the wrongdoer, defaulter, or anyone else who is liable for it.

However, Rule 6 of Order II of CPC states that the court may order separate trials if it appears to the court that joining causes of action in one complaint will embarrass or delay the trial or be otherwise inconvenient. It can be analyzed from the above-stated matter that a lawsuit can be dismissed if the cause of action is missing from the complaint. It is not enough to just assert that specific events or facts occurred that entitle the plaintiff to relief; the complaint must also include all of the elements of each cause of action in detail. However, if an offended party excludes any relief to which he is entitled to suit except when approved by the Court, he will not be granted such assistance later. The Court may award aid on reasons other than those specified in the plaint in exceptional situations. The aid requested by the injured party or the defendant might be broad or narrow.

Citations:

1. 2020 SCCOnline SC 562
2. 1986 AIR 1253, 1986 SCR (2) 782
3. (1993) 104 PLR 621
4. 1994 SCC (6) 322, JT 1994 (6) 89
5. 1996 SCC (3) 443, JT 1996 (3) 656
6. AIR 2019 SC 1430
7. AIR 2001 SC 416

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

ABSTRACT

The given article seeks to explore the evolution of the Arbitration laws in the Indian sub context from stem to stern. The article traces the journey of Arbitration from the enactment of the very first legislative piece in 1899 until the most recent amendment of 2019.

INTRODUCTION

In order to decipher the insightful journey of the arbitration laws, it shall be necessary to first comprehend the meaning of the term ‘arbitration’. Colloquially speaking, the term ‘arbitration’ basically means an adjudication of disputes by an impartial and independent third party i.e. arbitrator. Thus, arbitration is a private, out of the court procedure. Regular court procedures are usually complex, expensive, and time-consuming. Adjudication of the disputes via the less formal and alternate forums such as the ‘arbitration’ provides a more effective and speedy resolution of disputes.

Thus, Arbitration is the result of written agreements between the parties wherein the parties agree to submit the accruing present or future disputes arising out of a legal relationship between them to an arbitrator.

ARBITRATION PRACTICE IN THE ANCIENT WORLD

The practice of arbitration has been pervasive throughout the world since ancient times. King Solomon of the ancient Jewish empire is usually hailed as one of the first arbitrators as per the Old Testament. The book by Elkouri and Elkouri¹ describes in length the arbitration proceedings of Solomon that bear resemblance to the modern-day arbitration practice. Further, the Greece historian Homer also gave detailed accounts of arbitration in his poem wherein the third party adjudicators settled the disputes between the masses.

In the Indian subcontinent, mentions of arbitration can be found in ancient texts of Brhadaranayaka Upanishads² that mentioned about srenis, kulas, pugas, and other autonomous bodies which adjudicated arbitration proceedings. Instances of local adjudication of disputes without the intervention of courts via the panchayats can also be found in Mauryan and Mughal times. Even today, the Khap panchayats are examples of such extra-judicial bodies that arbitrate disputes among the parties involved.

SCOPE OF THE LEGISLATIVE ENACTMENTS

1. THE INDIAN ARBITRATION ACT 1899
The said Act³ came into force on 1 st July 1899 and was drawn on the lines of the English Arbitration Act. It was the first legal attempt to formalize and codify the laws and procedures pertaining to the arena of arbitration by filling in the void created due to the absence of legislative enactments. The Act sought to amend and facilitate the process of Arbitration by agreement between the parties which therein gave away the need for engaging in the long-drawn tedious and complex procedures of the civil laws. However, the applicability of the Act was limited only to the presidency towns of Madras, Bombay, and Calcutta.

The Act provided that if the parties explicitly agreed in writing to refer to an arbitrator in the event of any dispute, then in the event of an eruption of any dispute, an application could be made to the court, having jurisdiction in the said matter, to enforce the arbitration agreement, the subject matter of which should be legal off course, in accordance with the provisions of the agreement and appoint an arbitrator, in absence of any agreed provision for appointment of any specific arbitrator between the parties thereto.

The Act lays down in length and breadth about the ifs and nots for appointment of an arbitrator, procedure for the perusal of the evidence, grounds of mistake for setting aside an arbitration award, powers of the court to enact arbitration agreement, enforcement of arbitration award, stay of proceedings, award of the decree, and a host of other provisions.

The scope of Arbitration further got modified and codified with the enactment of CPC in 1908 under Clause 1 to 16 of Schedule II, whereby the provisions of arbitration were extended to the other parts of India. However, the infancy of the Indian Arbitration Act with its inborn imprudence coupled with the technicalities of the CPC 1908 proved to be incapable of governing the catena of arbitration and thus paved the way for the enactment of The Arbitration Act 1940.

2. THE ARBITRATION ACT 1940
The act⁴ provided systematic and comprehensive legislation on arbitration by improving upon the shortcomings of the previous Act. It came into force on 1 st July 1940 and extended to the entire Indian territory except for the State of Jammu and Kashmir. The Act sought to amend, bolster and integrate laws relating to arbitration and provide for a hassle-free arbitration experience, thereby saving the precious time of civil courts.

The Act provided for agreement between the parties thereto for the appointment of an arbitrator by a third party and; the appointment of up to three arbitrators by the parties themselves. The appointment of an arbitrator could be revoked only by the leave of the court and further, the death of the parties did not discharge the arbitration agreement. The Act widened the horizon of the court by empowering it to appoint, modify or remove the arbitrators; or modify/ remit the arbitration award after its filing in the court, if it deemed it to be fit. The Act also imbibed the provisions for insolvency of the parties, powers of the arbitrator to grant interim awards, powers, and procedure of civil courts, etc. It is to be noted that the Act was subservient to the provisions of the Indian Limitation Act 1908.

The major flaw of the Act was that it only dealt with adjudication of domestic arbitration rewards and had no imbibed provision for the enforcement of foreign awards. Further, ineffective application of the provisions of the Act, leading to irregular and faulty proceedings gave a major blow to the applicability and usefulness of the Act. In the case of Guru Nanak Foundation v Rattan Singh⁵, the Supreme Court lamented over the inefficacious working of the Act which had led to time-consuming and complex procedural claptraps.

Despite the inherent malaise in the applicability of the act, combined with other infirmities, the act remained operational until the year 1995. The economic liberalization policy of the 1990s necessitated the creation of a favorable and conducive business environment so as to attract investments and provide speedy dispute resolutions, thereby enhancing the ease of business. Now, in order to simplify the tedious and complex court procedures and facilitate the businesses, arbitration as a method for commercial dispute resolution was encouraged and it was in this background that the Arbitration and the Conciliation Act 1996 was passed by the parliament.

3. THE ARBITRATION AND THE CONCILIATION ACT 1996
The act⁶ came into force on 25th January 1996 and repealed the Arbitration Act 1940. The Act was enacted in consideration to and in consonance with the UNCITRAL Model Law on International Commercial Arbitration.

The Act provides for domestic as well the foreign commercial arbitration coupled with the enforcement of the international awards. The Act for the first time carved out an avenue for the process of conciliation. The Act is divided into four parts, spanning 87 Sections. Part 1 provides for the procedural details of domestic arbitration and Part 2 provides for enforcement of certain foreign awards in the light of New York and Geneva conventions while Part 3 deals with the aspect of Conciliation by elucidating it in length and breadth.

In the case of Bhatia International v. Bulk Trading S.A. and Another⁷, it was held that the arbitration benches seated outside India shall be subjected to Part 1 of the 1996 Act unless it was impliedly or expressly excluded.

The Act gives paramount importance to the autonomy of parties which can be adduced by the expressions used in the Act such as “with the agreement of the parties” every now and then. The Act underpins the necessity of the arbitration agreements for enforcement of arbitration proceedings, gives full autonomy to the arbitration tribunal to carve out the procedures, and seeks to clearly distinguish between arbitration and conciliation. Moreover, the Act intends to provide for speedy resolutions which could be deduced from the fact that it did not provide a second appeal except for an appeal to the SC.

In the case of Centrotrade Minerals and Metals Inc. v. Hindustan Copper Ltd⁸, the court underpinned the fair and impartial adjudication process of the arbitration tribunals that gave paramount consideration to the party autonomy and safeguards therein. However, the court criticized the cumbersome procedure for setting aside the arbitration awards.

Given the beneficiary aspect of the said Act, it suffered from the twin malady of excessive court intervention and procedural expensiveness. Challenge of an Arbitral award under Section 34 of the Act would put an automatic stay on the execution of an award thus, making it executable. Also, a charge of excessive fees by the arbitrators and absence of time limit for adjudication of the arbitration award would make the option of arbitration altogether as a means for dispute resolution unfeasible and cumbersome.

This necessitated the needful improvisations in the said act and hence the Arbitration and Conciliation Amendment Act was passed in 2015, incorporating the required amendments.

4. THE ARBITRATION AND CONCILIATION AMENDMENT ACT 2015
The act⁹ came into force on 23 rd October 2015 and sought to amend and consolidate the Arbitration and Conciliation Act 1996. The Act amended Section 2(1), 7, 8, 9, 11, 12, 14, 17, 23, 24, 25, 28, 29, 31, 34, 36, 37, 47, 48, 56, and 57, and furthermore, added a fourth, fifth, sixth and seventh schedule to the principal Act. The key features of the amended Act are as follows:

• The Act added to the meaning and interpretation of the term “courts” with respect to domestic and international arbitration. As regards domestic arbitration, the term ‘court’ shall include both principal civil courts in districts and High Courts in the exercise of their original jurisdiction and with regards to international arbitration, the term ‘court’ shall include only High Courts in the exercise of their original civil jurisdiction.
• International commercial arbitrations whose benches are seated outside India shall also be subject to the provisions of 9, 27, and 37 of the Act, and the ensuing arbitral reward of such cases shall be perfectly enforceable in India.
• As regards interim protection awarded by the courts, the arbitration proceedings shall commence within a period of 90 days or if any as determined by the court, from the date of order for grant of interim protection.
• In order to curb the unnecessary court interventions and uphold the spirit of the arbitration agreement, the act makes it necessary to refer the subject matter disputes to arbitration in case of the existence of arbitration agreements for such matters.
• The Act seeks to curb the discretionary power of CJI and bring to the center stage, the twin institutions of the Supreme Court and High Courts instead of keeping CJI and his nominated institutions at the forefront for the task of appointing arbitrators.
• The Act confers power upon the central government to amend the fourth schedule.
• In order to enhance the efficiency and effectiveness of the process of arbitration, the Act prescribes a period of 12 months for the completion of the arbitration proceedings under the Act and also accordingly awards the arbitrators for speedy dispute resolutions.
• To encourage transparency, impartiality, and fairness of the entire scheme of arbitration proceedings, the Act prescribes for disclosure of any past/present or direct/ indirect relationship of the arbitrator with parties thereto or subject matter of the dispute that may give rise to justifiable doubts as regards to impartiality and independence of the proceedings. The fifth schedule of the Act extensively and methodically lists out the cases of arbitrator’s relationship with parties thereto that are likely to vitiate independence and fairness of the proceedings.
• The Act provides a scope for the appointment of guardians during the course of arbitration proceedings for minors or for persons of unsound mind.
• The Act seeks to encourage to the greatest extent, the scheme for oral hearings. Moreover, the Act drives to foster the virtue of regularity as regards the arbitration proceedings and dissuades adjournments by levying heavy costs.
• The Act equips the arbitrators/ courts with discretion to determine and award the costs to be paid by the parties to each other and to the arbitrators/ courts per se.
• The Act uncovers speculations by defining the conditions that lead to a conflict of public policy in India. The conditions include the cases of fraud and contravention of Indian law and notions of morality or justice.

The case of Perkins Eastman Architects DPC and Ors. vs. HSCC (India) Ltd.¹⁰ dealt with the unilateral appointment of the arbitrators, wherein the two judges bench of SC held that a person who was ineligible to act as an arbitrator cannot appoint one of his choices and the court could exercise its power under the Section11(6) of the Arbitration Act 1996 and appoint an independent arbitrator to maintain fairness and impartiality of the proceedings.

In spite of the much-sought amendments brought in by the Amendment Act of 2015, the lack of institutionalized arbitration mechanism was deep-rooted in the country. In order to perpetuate the institutionalization of systematic arbitration, an ad-hoc committee headed by Justice B.N Srikrishna was constituted. On the lines of proposed improvements suggested by the committee, the Arbitration and Conciliation Amendment Act 2019 was enacted.

5. THE ARBITRATION AND CONCILIATION AMENDMENT ACT 2019
The amendment Act of 2019¹¹ came into force on 9th August 2019. The act seeks to amend Section 2, 11, 17, 23, 29A, 34, 37, 42 43, 45, 50, and 86 of the Principal Act. The Act further adjoins the eighth schedule and part 1A to the Act. The salient features of the Act are as follows:

• The act seeks to ease out the responsibility of the already overburdened HCs and SC by provisioning the addition of arbitral institutions for presiding over the process of arbitration which shall be accordingly designated by the SC and respective HCs, thereby ensuring speedy disposal of the disputes. In the absence of designation of arbitral institutions by the HCs, the CJ of the concerned High Court shall appoint a panel of arbitrators for the purpose of discharging the said functions of arbitral institutions.
• The arbitral institutions so constituted shall have the authority to adjudicate the cases of international arbitration.
• In order to expedite the process of admittance of claims and defenses during the course of arbitration proceedings and encourage speedy disposal of cases, the act provides for completion of the above-said claims and defenses within a period of six months from the appointment of arbitrators.
• The Act curbs the extraneous application of other laws as regards appeal under this Act and provides for only those appeals that are listed and validated by Section 37 of the Act.
• The Act absolves the liability of the arbitrators from those impugned actions that are done in good faith.
• In order to boost the competency of the arbitrators, the act prescribes minimum qualifications for the appointment of the arbitrators which shall ultimately lead to the excellence of the arbitration mechanism.
• The showstopper of the amended Act is the establishment of the Arbitration council of India that will seek to regulate the niche practice of Arbitration and Conciliation in India and make the country, a booming hub for inexpensive, effective, and sought after hub for the process of arbitration. Part 1A inserted via the amendment Act of 2019, describes in length about the constitution, functioning, and governance of the Arbitration Council of India.

CONCLUSION

The practice of arbitration as means for the settlement of commercial disputes has been a popular tool. Being speedy, cost-effective, and efficient, it provides viable options for the resolution of disputes that would otherwise take tremendous time, cost, and effort of the parties involved under regular civil litigation. The legislative enactments in the field of arbitration underwent major amendments since 1899 in order to keep abreast with the latest developments. The recent amendment of 2015 and 2019 took leap-bound steps to inculcate practices that would encourage transparency, independence, and impartiality of the arbitration proceedings, thereby preventing unnecessary intervention of the courts and ensuring speedy and timebound disposal of the cases.

References:

1. https://core.ac.uk/download/pdf/216936738.pdf
2. http://csjournals.com/IJITKM/PDF%2010-2/21.%20Sumit.pdf
3. http://jkarchives.nic.in/Record_Holdings_PDF/Acc.%20No.%201149.pdf
4. https://indiankanoon.org/doc/1052228/
5. (1981) 4 SCC 634
6. https://legislative.gov.in/sites/default/files/A1996-26.pdf
7. (2002) 4 SCC 105
8. 2006 11 scc 245
9. https://lawmin.gov.in/sites/default/files/ArbitrationandConciliation.pdf
10. SC/1628/2019
11. https://egazette.nic.in/WriteReadData/2019/210414.pdf

Written by Riya Ganguly student at Bharati Vidyapeeth New Law College, Pune.

Introduction

Over time, many changes occur in society; these changes have both beneficial and harmful consequences. As the nature of law evolves, new laws and amendments are introduced into society to regulate the violation of living beings’ rights, privacy, and security.

There’s a Bible proverb that goes something like this: “Either you can believe all of it or you can’t trust any of it,” and that’s how fake news spreads. If you can’t distinguish which news is real vs phony, which is truth vs lies, many people will quickly throw up their hands and declare that none of them can be trusted.

With the introduction of computers, the internet, social media, and networking websites, these developments, particularly on the technological front, became mass development with the introduction of computers, the internet, social media, and networking websites, which crept into and made their way into people’s lives.¹

The law of social changes as trends change. People are discovering new ways to conduct crimes in a high-tech manner as time progresses. However, by adopting new statutes and enactments, the law has broadened its jurisdiction and begun to remove these flaws from society. As a result, the Government of India has submitted a bill called the Fake News (Prohibition) Bill, 2019.

Fake News Prohibition Bill, 2019

The Fake News (Prohibition) Bill of 2019 was passed to make it illegal to create and distribute fake news in the media, as well as other related issues. In India, fake news refers to misinformation or disinformation conveyed by word of mouth and conventional media, as well as more recently through digital modes of communication such as altered videos, memes, unconfirmed adverts, and rumors circulated on social media. This statute applies to the entire country of India, it includes:

a) Misquotation of one’s remark is an example of fake news.
b) Altering audio and video files, causing facts and context to be distorted.
c) For the advantage of a person, agency, or entity.

Objectives of the Bill

Fake news has made it easier to spread false information in the era of the internet, where anybody can submit a report or a comment that appears to be a news item and declare it to be accurate and factual. Fake news or information must display or intend to exhibit propaganda to blacken or disgrace one’s reputation or create or plan to induce fear, division, turmoil, violence, or hate. Due to the propagation of fake news on social media platforms such as Whatsapp, Facebook, and Twitter, a huge number of mob lynching occurrences have been recorded around the country. Political parties were also discovered to be distributing misinformation on social media during the country’s elections, according to studies.

To control and the spread of fake news in any form, whether it is through circulation, sharing, misquotation of statements, editing of audio and video clips, fabricating content, undermining, sowing seeds of enmity, sedition, hatred, disseminate, edit, abet, etc., a debate took place in the House of Lok Sabha on the subject on February 8, 2019, and Shri. Tej Pratap Singh from Mainpuri proposed before the Hon’ble Chairperson to introduce The Indian media research organization CMS indicated in a report by The Guardian that the growth of false news was due to India’s “lack of (a) media strategy for verification.” Additionally, reporters and journalists have been imprisoned for “making false stories, “particularly when the pieces were contentious.

Fake News in India

In Alakh Alok Srivastava v. Union of India², the Supreme Court of India acknowledged the problem of infodemics in India and issued an order for state governments to follow the Centre’s orders to combat the threat of fake news. The top court also highlighted the necessity for the government of India to provide a daily bulletin through all media outlets as a source of real-time verifiable information on Covid-19 to alleviate the fear and apprehension generated by the uncontrolled flow of fake news.

The recent mass evacuation of migrant workers was caused, according to this petition, by the anxiety induced in the minds of the laborers as a result of bogus news that inflated the duration of the lockdown to endure for more than three months. Poor migrant laborers were killed as a result of this evacuation, which was brought about by the distribution of illicit information.

Fake news spread over WhatsApp in Odisha, claiming that a person from outside the state had been sick. After an inquiry, the police discovered that the claim was untrue. At the time, India lacks a specialized law to control false news; yet the epidemic is demonstrating the necessity for one.

Provisions of different laws in India

Information Technology Act, 2008 (IT Act)
In India, social media platforms that are classified as ‘intermediaries’ under Section 79(2)(c) of the Information Technology Act, 2008 are obligated to exercise due diligence when performing their tasks. Initially, under the Act and the April 2011 guidelines, intermediaries were not liable if they were not responsible for the origination, transmission, or reception of such content across their reach. As a result of this change, intermediaries gained protection, allowing them to be slackers in their efforts to combat bogus news.

When the government realized its error, it devised a remedy on the opposite extreme of the spectrum, instructing intermediaries to proactively block information. These restrictions have been compared to censorship in China. The government can use this as a political weapon to suppress stuff that does not benefit them. The free expression would be harmed by such a law.

Indian Penal Code (IPC)³
Section 505(1)(b) of the IPC deals with the dissemination of false and malicious material that causes fear or panic in the general public, or in any segment of the general public, with the intent of inducing an individual to commit an offense against the state or public peace. The offender under this section can be punished with imprisonment of a maximum of 6 years and a fine. Section 505(1)(b) combined with Section 54 of the DMA have been envisaged to include the expansion of fake news to a large extent.

The actual issue with fake news is fraudulent information that is disguised as real news in the form of unpaid pieces. The malice requirement might be avoided, and the spreader of misleading information could face severe responsibility and exemplary damages. The implementation of strict responsibility, on the other hand, would need tracking the disinformation back to its source, which has been recognized as a time-consuming and inefficient procedure.

Disaster Management Act, 2005 (DMA)⁴
Section 54 of the DMA professes to handle ‘false alarm or warning as to disaster or its severity or magnitude, leading to panic’ and this has been applied while recording arrests so far. It makes the offense punishable with imprisonment up to 1 year and the imposition of a fine. The same provision, on the other hand, has long been criticized for being too narrowly focused on catastrophes at a time when the breadth of false news is far broader.

While this one-of-a-kind characteristic of the Act restricts its use to disasters, it does have a good side effect. It ensures that the use of this clause does not extend beyond the extraordinary circumstances of a disaster, preventing the government from using it to further restrict free expression.

Curbing Fake News within Jurisprudence

Restriction of some rights can be permissible in the context of major public health hazards and public emergencies endangering the nation’s survival, according to international human rights law. The size and severity of the Covid-19 epidemic have elevated it to the status of public health danger, justifying limits on freedom of expression and speech. Such limits, however, must adhere to the standards of international human rights law. The same has been enshrined under Article 19(3) of the International Covenant on Civil and Political Rights (ICCPR)⁵ which requires the limitations to have a legal basis, to be solely significant, to be subject to review, and to be proportionate to acquire the aim. While it is vital to take steps to prevent the spread of disinformation, there is an unintended consequence. Efforts to combat false news might result in the imposition of censorship laws or the suppression of critical thinking that is essential to make educated judgments. To combat the spread of disinformation, Thailand’s government recently enacted restrictions that included a blanket prohibition on communications that are either “false” or “misleading”. The Thai government used this method to detain an artist who challenged the government’s reaction to the current public health crisis.

Concluding Observations

During this situation, it is critical to combat bogus news. It should not, however, come at the price of free expression. Temporary measures that take away some liberties in the near term but do not turn out to be a political weapon for any ruling administration are the way ahead in suppressing free expression. Temporary measures will allow the government to make necessary modifications to the current system to safeguard us. We should allow the government to protect us in our weak state, but this should not result in the government abusing our frailty. To combat the rapid spread of fake news, the government must collaborate with the public and intermediaries. We must do so; else, fake news may prove to be as deadly as the epidemic. Without a question, the problem of fake news and fake is growing like wildfire around the globe, necessitating the passage of legislation to regulate and restrict the transmission of fake news on social media and other platforms. The bill was constructed and prepared with the goal of prohibiting the transmission and distribution of false news, and thus “The Fake News (Prohibition) Bill, 2019” was created and presented to the Lok Sabha.

References:

1. Critical analysis of the Fake News (Prohibition) Bill, 2019, by Yogesh V Nayyar, Advocate in Supreme court. https://blog.ipleaders.in/critical-analysis-fake-news-prohibition-bill-2019/
2. ALAKH ALOK SRIVASTAVA v. UNION OF INDIA, Supreme Court Of India, Writ Petition (Civil) No. 76 Of 2018 | 01-05-2018 https://indiankanoon.org/doc/129422211/
3. THE INDIAN PENAL CODE, 1860 ACT NO. 45 OF 1860 1* [6th October 1860.]
4. Disaster Management Act (DMA), Power to remove difficulties. [23rd December 2005.] https://www.ndmindia.nic.in/images/The%20Disaster%20Management%20Act,%202005.pdf
5. International Covenant on Civil and Political Rights, United Nations, Treaty Series, vol. 999, p. 171 https://www.refworld.org/docid/3ae6b3aa0.html

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

The Supreme Court of India emphasized in Satish Chandra Verma vs. Union of India that the freedom to go abroad, like marriage and family, is a genuine and vital human right. “The right to travel abroad is an important basic human right because it fosters an individual’s independent and self-determining creative character,” wrote a bench led by Justices L. Nageswara Rao and M.R. Shah, “not only by expanding his freedoms of action but also by expanding his scope of experience.

In this case, an IPS officer filed an appeal, from Coimbatore, Tamil Nadu. He claimed in his appeal that he was the subject of a departmental inquiry and that the Central Administrative Tribunal (CAT) had denied him permission to visit relatives overseas because of it. Despite the fact that Inspector General of Police Satish Chandra Verma was not facing any criminal charges, the Madras High Court upheld the Central Administrative Tribunal’s decision that he may not go abroad without first obtaining Vigilance clearance. The Supreme Court overruled the verdict of the High Court, citing Maneka Gandhi vs. Union of India and Kent vs. Dulles, two landmark US Supreme Court cases (1958).

In its judgment in Maneka Gandhi vs Union of India, the bench stated that the right to travel abroad is a fundamental human right since it strengthens an individual’s independent and self-determining creative character by widening his job experience and giving him more freedom of action. The Supreme Court noted the ruling in the latter case, which stated that “freedom to go abroad is a fundamental human right with major societal relevance.” The Supreme Court said that the freedom to travel globally is a core human right that also relates to private life, such as marriage, family, and friendship.

Right to travel internationally

Article 19 of the Indian constitution guarantees the freedom to freely move beyond Indian territory; nevertheless, the right to go abroad is derived from Article 21’s right to life and personal liberty.

Liberal interpretations have given the phrase “life and liberty” huge meanings in this article. Life here refers to both one’s physical existence and one’s quality of life. Personal liberty, on the other hand, encompasses a wide variety of rights in addition to freedom from physical constraint or confinement.

The Supreme Court stated in Maneka Gandhi v. UOI that the term “personal liberty” as used in Article 21 has a very broad meaning and it encompasses a plethora of rights that include man’s personal liberty, some of which have been elevated to the status of separate fundamental rights and given additional protection under Article 19.

Article 21 defines the state’s negative duty, although it does not totally nullify restrictions or limitations if carried out in line with the “process” prescribed by law. An individual’s personal liberty and the rights that come with it, as well as the individual’s duties and obligations to the state and other citizens, must be balanced. Satwant Singh Sawhney v. D. Ramarathnam: The Supreme Court ruled in Satwant Singh Sawhney v. D. Ramarathnam that the “expression” of personal liberty includes freedom of movement and travel internationally. The necessity to hold a passport in order to
legitimately going overseas may raise the question of whether it is a barrier to an individual’s right to travel abroad, however, the Supreme Court found against this in the same case.

In a nutshell, the right to freely travel throughout India’s territory and the right to freely travel abroad both fall under the umbrella of “personal liberty,” although being provided under separate parts of the constitution. Specific limits on traveling overseas may apply, which must be followed in compliance with legal regulations. There are several fair restrictions on roaming freely throughout India.

Article 12 of the 1966 International Covenant on Civil and Political Rights addresses the freedom to travel abroad in international law. It empowers anybody, including themselves, to exit any country. As a result, it enhances the basic freedom of foreign travel. However, the Covenant, like the Indian Constitution, places limitations on the right “as may be needed by law to protect national security, public order, health, or morality in the interests of others’ rights and freedoms,” and these restrictions are compatible with the Covenant’s other rights.

The United Nations Human Rights Committee, which oversees the Covenant’s implementation, has underlined that Article 12 covers both the freedom to leave for permanent emigration and the right to travel abroad. It also safeguards a person’s freedom to pick his or her own travel destination.

While the UN Human Rights Council asserts that the right to dwell in a country includes the right to get the necessary travel documents, the Supreme Court has a different view on the passport and travel document problem. In Satwant Singh Sawhney v. D. Ramarathnam, the Supreme Court argued that a passport is a political document with no absolute right to get one because it is up to the state to give or deny one. The government does not appear to need to assert someone it does not think acceptable because the document states the holder’s respectability.

When there is a dispute between national and international law, the Supreme Court stated in Gramophone Company of India vs. Virendra Pandey in 1984 that national law shall prevail.

The right to travel freely across the world has been recognized by the Supreme Court as a fundamental right. Following Article 21, it is suggested that a new article, namely Article 21A, be included with the words “A21. (2) Nothing in section (1) stops the State from implementing legislation that sets appropriate boundaries in the interests of India’s sovereignty and integrity, friendly relations with other states, and the general public.” An individual provision for the right to travel abroad might help to accelerate the implementation of this critical right, which is now underway.

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

Introduction

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

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

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

Types of Intellectual Property

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

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

Landmark Cases on Intellectual Property Rights

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

References

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

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