Tag: #SupremeCourtCases

S.no	Contents
1.	Introduction
2.	The deep-rooted gender stereotypes and their legal consequences
3.	Landmark Cases
4.	Legal and Media Reactions to Gender Stereotyping.
5.	Legal Interventions
6.	Workplace Gender Bias: Legal Options and the Situation Today
7.	Conclusion

Introduction: Examining Gender Stereotypes in Indian Society

Deeply embedded in all communities, gender stereotypes frequently uphold social norms that specify anticipated behaviours, roles, and characteristics depending on a person’s perceived gender. In India, a nation rich in variety and cultural tradition, gender stereotypes have long affected the lives and opportunities of millions of individuals. This article examines the negative effects gender stereotypes have on Indian society as well as the initiatives taken to combat them.

The historical records and cultural perspectives have perpetuated gender stereotypes for a long time. As a result, they promote unequal power dynamics and prejudiced attitudes. These prejudices frequently limit the potential of people and uphold gender norms that favour one gender over the other. Such practices not only contravene the equality values stated in the Indian Constitution, but they also inhibit the development of a society that is inclusive.

This article emphasises the importance of the legal system in changing cultural beliefs by highlighting important court decisions that have contested pervasive gender stereotypes¹. It also looks at the legal measures put in place to control such representations as well as how media portrayals continue to reinforce these stereotypes². The article also addresses initiatives in workplaces where gender discrimination still exists as well as in educational institutions, where the foundations of these biases frequently take hold³.

Dismantling deeply embedded gender stereotypes calls for a multifaceted strategy as we navigate the complex web of legal frameworks, societal dynamics, and cultural perspectives. This article seeks to add to the ongoing discussion about changing the legal system to promote a more equal and impartial society for all people, regardless of gender, by examining legal changes, significant cases, and current difficulties.

The deep-rooted gender stereotypes and their legal consequences

Deep-seated gender stereotypes still have a significant impact on legal issues and inequalities in society, casting a wide shadow over social institutions. These stereotypes frequently take the form of presumptions about traditional gender roles and talents, which has an impact on people’s access to opportunities, care, and resources. Therefore, these skewed viewpoints go against the equality values stated in the Indian Constitution and impede the development of a just and inclusive society.

The historic case National Legal Services Authority v. Union of India (2014)⁴ emphasised the need for laws to recognise and defend the rights of transgender people while also highlighting how difficult it is to combat gender stereotypes in the context of the law. Additionally, the 2013 passage of the Gender Sensitization and Sexual Harassment of Women in the Workplace Act⁵ emphasised the legal commitment to fostering impartial and safe workplaces. Legal changes that reframe societal standards are necessary to combat these preconceptions, creating an environment where the law can be a powerful weapon for eliminating ingrained gender biases.

Legal Conflicts Against Gender Stereotyping: Landmark Cases.

In the continuous battle against deeply embedded gender stereotypes in Indian society, landmark judicial decisions have become significant battlegrounds. These instances not only show the discriminatory effects of such preconceptions but also demonstrate how the judicial system has the ability to question and change social norms.

National Legal Services Authority v. Union of India (2014)⁶ is a landmark case that recognised the rights of transgender people and the need to combat stereotyping. A landmark framework to combat workplace sexual harassment was established by the Supreme Court’s involvement in Vishakha v. State of Rajasthan (1997)⁷, which recognised the need for safe and impartial workplaces free from gender-based discrimination. These examples show how the judiciary has actively interfered to combat the persistence of gender biases, defying conventional wisdom.

Society confronts the damaging effects of gender stereotypes by delving into these incidents. These court cases raise people’s awareness and promote discussions that advance society. They show that eradicating long-held preconceptions necessitates both society’s joint efforts and the judicial system’s authoritative position.

Legal and Media Reactions to Gender Stereotyping. 

The media has a significant impact on how society perceives things, but it also frequently reinforces negative gender stereotypes that impede the advancement of gender equality. This influence has a double-edged effect, reflecting and strengthening existing prejudices. To buck this trend, however, legal responses are starting to emerge.

The National Legal Services Authority v. Union of India (2014)⁸ case brought attention to the media’s influence on public opinion and the need for regulation to stop the spread of damaging stereotypes. In order to meet the need to confront gender biases rather than perpetuate them, the legislative framework places a strong emphasis on the need for responsible media portrayal. By controlling media content, society makes progress towards eradicating entrenched stereotypes and promoting gender equality.

These legal actions serve as a reminder of the media’s significant influence on society’s views as well as its capacity to accentuate good change. Not only must media representations be changed, but legal measures that will assure their implementation must also be acknowledged in order to effectively combat gender stereotypes.

Legal Interventions: How Educational Institutions Can Drive Change

While educational institutions are important for breaking down gender stereotypes, they can also unintentionally reinforce prejudice. Legal actions are crucial in converting these settings into places that support inclusion and gender equality. Legal actions to combat gender stereotypes and promote diversity have been taken against educational institutions, which play a significant role in forming cultural attitudes. Anuj Garg v. Hotel Association of India⁹ is one of these important cases in which the Supreme Court emphasised that educational institutions must uphold gender equality and ensure a setting free from prejudice and stereotypes. This case supports the requirement for institutions to stop discriminatory behaviour.

The Gender Sensitization and Sexual Harassment of Women at the Workplace Act, 2013, also broadens its application to educational institutions and requires a proactive strategy to combat gender-based discrimination. The value of education in influencing society’s perceptions and achieving equality is reaffirmed by these legal actions.

Workplace Gender Bias: Legal Options and the Situation Today

Strong legal remedies that change with the times are needed to address workplace gender bias. By focusing on equal compensation for equal work, a significant case—Air India v. Nergesh Meerza, (1981)¹⁰—expressed the judiciary’s position against gender discrimination. The precedent set by this decision served as the foundation for later legal systems.

A key piece of legislation that demands harassment-free workplaces and provides remedies for preventing it is the Gender Sensitization and Sexual Harassment of Women in the Workplace Act, 2013, which was passed in 2013. In terms of recognising and eradicating gender stereotypes in the workplace, this 2013 law is a positive step.

M.C. Mehta v. Union of India, (2004)¹¹, another significant case, demonstrates the judiciary’s dedication to eradicating gender-based discrimination. Even though it wasn’t specifically about the workplace, this decision demonstrated the Supreme Court’s commitment to environmental justice and gender equality, showing how the two legal fields interact and affect gender bias.

Despite these legislative developments, the labour environment today is nevertheless complicated. There are still gender pay gaps, a shortage of women in senior positions, and covert biases. Legal remedies have set the stage, but ongoing efforts from groups, people, and governments are necessary to create a truly equal working environment.

Conclusion: Using the law to eliminate gender stereotypes.

In conclusion, India’s legal system has greatly changed to address the deeply ingrained gender stereotypes that support inequality and prejudice. Through significant decisions like National Legal Services Authority v. Union of India (2014) and Vishakha v. State of Rajasthan (1997), the judiciary has emphasised its responsibility to combat these prejudices and promote a more equal society.

The legislative instruments created to redefine educational institutions as hubs of inclusivity and gender sensitivity are best illustrated by legislation like the Gender Sensitization and Sexual Harassment of Women at the Workplace Act, 2013, and the Anuj Garg v. Hotel Association of India (2008) case. The Sexual Harassment of Women at Workplace Act, 2013, and the Air India v. Nergesh Meerza (1981) case further highlights the struggle against workplace discrimination.

These legal avenues, linked to developing societal knowledge, highlight how crucial it is to destroy gender stereotypes. A more just and inclusive future is made possible by the Indian judicial system’s dedication to maintaining constitutional ideals and advancing equality.

As we proceed on this road, it becomes increasingly obvious how important it is for institutions, society, and legal systems to work together continuously. India is moving closer to a future in which gender stereotypes are a thing of the past by persistently questioning conventions and pushing for change.

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Endnotes:

1. National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
2. Vishakha v. State of Rajasthan, (1997) 6 SCC 241.
3. Gender Sensitization and Sexual Harassment of Women at the Workplace Act, 2013.
4. Ibid
5. Gender Sensitization and Sexual Harassment of Women at the Workplace Act, 2013.
6. Ibid
7. Vishakha v. State of Rajasthan, (1997) 6 SCC 241.
8. Ibid
9. Anuj Garg v. Hotel Association of India, (2008) 3 SCC 1.
10. Air India v. Nergesh Meerza, (1981) 4 SCC 335.
11. M.C. Mehta v. Union of India, (2004) 12 SCC 118.

This article is authored by Srishti Singh, a pass-out student at O P Jindal Global University, Sonipat

S.no	Contents
1.	Introduction
2.	Antecedents and Evolution of the RTI Act in India
3.	Importance of the Act
4.	Impact of the Right to Information Act, 2005
5.	Cases Related to the Right of Information Act, 2005
6.	Conclusion

Introduction

“A basic tenet of a healthy democracy is open dialogue and transparency”, said Peter Fenn. The RTI Act was passed by the Parliament of India on June 15, 2005, and it came into existence on October 12, 2005. Every citizen of India has been bestowed the fundamental right to free speech and expression under Article 19(1)(a) of the Constitution of India. The right to information regarding matters of public interest becomes a pivotal point when it comes to forming opinions regarding the governance of the nation. RTI assures the citizens that the rights they possess will allow them to have complete transparency on the part of the government. In modern times, the educated as well as the illiterate classes of society want to be informed regarding the functioning and operation of the administrations in the country. They want to be apprised of how their funds and taxes are being utilized by the government. The citizens look forward to maintaining a system of scrutiny of the administrative campaigns in order to keep a check on swindling and corruptible activities. The paramount objective of the Right to Information Act, of 2005, is to strengthen the functioning of the authorities and make sure that no anti-people policies are carried out, and if any such activities are detected, they can be backed by legitimate grounds. India has evolved over a time period of 82 years from being a country where the citizens had no right to demand information regarding the secretive official Acts passed by the colonial officers to being a nation where the Constitution vests the rights of citizens to have access to every information regarding the working of the state machinery wherein the citizens are allowed to know the power and authority vesting in the officers, the utilization of the funds, as well as “information” involving and pertaining to press releases, records, notices, circulars, contracts, memos, models, public data, and reports released by Ministries, public sector undertakings, etc. The Hon’ble Supreme Court has also substantiated at times the need for an act that allows the citizens to have knowledge in order to better judge and inspect the functioning of the government.¹

Antecedents and Evolution of the RTI Act in India

• Universal Declaration of Human Rights, 1948: It mandated the media to provide anyone and everyone seeking any information in regards to the government, irrespective of the frontiers, with the right medium to receive that information. It cleared the way forward for demanding the right to information in India.
  
• International Covenant on Civil and Political Rights, 1966: It encouraged the idea of freedom of speech and expression, under which people shall be provided with transparency to seek information and proclaim opinions and ideas.
  
• Mazdoor Kisan Shakti Sangathan: In the 1990s, the organization started the movement relating to RTI with regard to increasing lucidity at the village governance level and demanding the minimum wage. Although the movement didn’t turn out to be a successful moment because of a lack of a substantial platform and failed due to having a rural background, it still managed to draw the attention of significant personalities, including the media, lawyers, jurists, dignitaries, academicians, bureaucrats, and legislators, and led to the formation of the National Campaign on the People’s Right to Information (NCPRI)’. A ‘Shourie Committee’ was formed, which was led by the former bureaucrat H.D. Shourie, who was also a consumer rights campaigner. In July 2000, the draft prepared by the Shourie Committee was presented along with certain amendments and alterations and came into existence as the ‘Freedom of Information Bill, 2000’. The parliament passed the ‘Freedom of Information Act’ in 2002, and it’s a precedent of the current Right to Information Act that was passed by the parliament in June 2005 and came into implementation in October 2005.²

Importance of the Act

• Accountability: According to Abraham Lincoln, “Democracy is a rule of the people, for the people, and by the people” (Democracy is a rule of the people, for the people, and by the people). As a result, all authorities operating at various levels are accountable to the nation’s citizens, and each citizen upholds the right to hold the authority in question accountable for its actions. RTI has established a responsibility factor that applies to all government employees, not just those who are elected to serve in that capacity.
  
• Transparency: The Constitution has provided several rights to the government to work freely in an independent and cohesive manner, maintaining certain boundaries regarding their work profile, but RTI has also maintained within its provisions that the government should work on terms that are favourable to the public and nation, and to solidify that fact, it lays down that the public interaction on the part of the government should be absolutely transparent. Citizens possess the right to knowledge about where and how the taxes given by them are being utilized by the government, how the government functions, and what measures are being taken by the government to run the country.
  
• Rule of Law: RTI has also played a role when it has come down to posing certain limitations on the discretionary powers of the authorities. It has been established that the law is the supreme authority, and nobody has the power to cross the supremacy of the Constitution of India. Improvisations in regards to seeking judicial actions in cases of denial of information on inquiry have established a control on the powers of the government and have increased the efficiency rate of work in the government offices as well.
  
• Role of Media: Since the implementation of RTI, the role of the media and press has also received attention. From educating the public about their rights to publishing public opinion polls and assessments of the government and officials, the media has played a significant role in keeping the public informed about how the government operates, everything that is happening in the world, all international deals that are being made with other countries, and government policies.³

Impact of the Right to Information Act, 2005

RTI was implemented in order to improve communication between the government and its constituents. It has established the nation’s official definition of moral leadership. Keeping citizens and authority on an equal footing has caused changes in the orientation of superiority. The citizens now have a voice and a manifesto through which to voice their concerns, limit the authority granted to government officials and authorities, and monitor the services that are being rendered to them. The Act outlines a number of provisions and actions that the public may take to voice complaints and inquiries about any work done by any public office.

Earlier, many people were unable to benefit from the schemes and amenities that the government used to publicize, but due to a lack of familiarity and awareness, they had no access to any of those. However, since the RTI Act, the government has mandated that several sectors correspond and make sure that the general public consumes the benefit of every such service.⁴

RTI has proven to be successful in manoeuvring the corruption rate in the country, which was one of its prime agendas. Now every person sitting in government offices on a chair fears exposure, and it has led to improvisation in their accountability towards the nation. It has led to a significant diminution in bribery. It has made the public officers more service-oriented; people have started taking their jobs seriously because the general public wants an on-paper record of whatever roles the officers are imparted with and whether they are doing their work with scrupulousness.

Every level of administration in our nation, from the local to the federal, has greatly benefited from it. It has highlighted the seriousness of the statement that everyone holding a position of authority is answerable to the public in every way permitted, including giving written testimony upon request or producing any document or report for inspection. It calls for the full disclosure of all records that the public has a right to access.

Cases Related to the Right of Information Act, 2005

In the case of Hamdard Dawakhana vs. Union of India⁵, the Drug and Magic Remedies (Objectionable Advertisement) Act had put restrictions on advertising drugs with claims of having magical properties, which was challenged in court, saying that it was restricting their freedom to advertise. The Supreme Court held that advertising is no form of speech but a mode of trade and commerce, and therefore no such ideas can be put forth that might affect the purchasing power of the buyer. The customers have the right to information regarding what they’re purchasing.

In the landmark judgment of State of U.P. vs. Raj Narain⁶, Justice K.K. Matthew noted that in a “government of responsibility like ours,” where every officer is bound to be accountable for their actions, there has to be maintained a transparent relationship between the public and the citizens, and the public should be provided with every piece of information that relates to public affairs.

The court in the case of S.P. Gupta vs. Union of India⁷ granted constitutional validity to the Right to Information, highlighting the spirit of Article 19(1)(a)  and drawing prominence to the fact how essential openness of government is when it comes to establishing the notion of an ideal democracy, and it drew a parallel significance of the Right to Information with the freedom of speech and expression by noting that the Act follows a correct line of interpretation of the Fundamental Right.

The court again emphasized the contribution of freedom of speech and expression in running the country in a systematic manner while pronouncing its judgment in the case of Union of Civil Liberties vs. Union of India⁸, where everyone has a right to speak against what they do not consider a righteous attempt at the management of policies.

Conclusion

So far, we’ve understood the magnitude of the word ‘information’ that covers under its ambit every public figure, report and stance of the government that is released at different stages of their governance in which they bring amendments, pass orders and legislation, herald schemes and policies, several documents related to public interest matters, and the connotation of the right to sustain it. The crux of introducing the Act is to provide a platform for the general public to express their opinions regarding what they consider to be the right policy for them and whether or not they’re satisfied with the utilization of the resources for which they are paying a contribution and share to the government. The act was implemented because only when the citizens of a nation are aware of the affairs of the country and when the population is educated regarding matters concerning them can they decide a future for the country and can we progress in the world scenario. The passing of the act was the need of the time so that no one suffers from a lack of government information and everyone has a record of every function of the legislators of our country. It is a transition from the arbitrary system of governance to an unbiased and transparent form of government where everybody has a right to be informed and be given a reason for every course of action being taken.

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Endnotes:

1. The Right to Information Act, 2005: https://rti.gov.in/RTI%20Act,%202005%20(Amended)-English%20Version.pdf
2. Second Administrative Reforms Commission: https://darpg.gov.in/sites/default/files/rti_masterkey1.pdf
3. Report of the Workshop on The Right to Information and the Media Past Experiences and Future Possibilities: https://www.humanrightsinitiative.org/programs/ai/rti/india/workshops/wksp_rep_on_rtiact05_pune.pdf
4. Guide on the Right to Information Act, 2005: https://rti.gov.in/RTICorner/Guide_2013-issue.pdf
5. Hamdard Dawakhana vs. Union of India, P. (CRL)558/2016
6. State of Uttar Pradesh v. Raj Narain, 1975 AIR 865, 1975 SCR (3) 333
7. S.P. Gupta v UOI, AIR 1982 SC 149
8. Article 19 of the Constitution of India
9. Union of Civil Liberties vs. Union of India, AIR 1997 SC 568, (1997) 1 SCC 301

This article is authored by Vanshika Manish Tiwari, a second-year student at Vivekananda Institute of Professional Studies, GGSIPU.

S.no	Contents
1.	Introduction
2.	Definition of Section 74 of the Indian Contract Act
3.	Time Aspects and Other Dispositions
4.	Importance of Penalties
5.	Jurisdiction of Section 74 of the Act
6.	Analysis of Section 74 of the Act
7.	Principal of Mitigation
8.	Conclusion

Introduction

Since the passage of the colonial Indian Contract Act of 1872 (ICA)¹, much has changed or developed in the manner that commerce is done. Due to the act’s age, there are a few flaws that need to be reviewed and fixed to ensure efficient corporate operations. Unliquidated losses, which apply where a contract lacks a section addressing liquidated damages, are discussed in Section 74 discusses liquidated damages.

This clause deals with liquidated damages, however, the act doesn’t define them, and the courts have frequently issued contradictory rulings in various circumstances. These decisions are frequently viewed incorrectly or differently. This study aims to clear up any ambiguity about significant liquidated damages rulings. It is far more difficult to assert the liquidated damages since you have to demonstrate the extent of the losses the harmed party produced.

There are very few contracts where the damages in the event of a breach cannot be determined. In these kinds of circumstances, it might be challenging to assert liquidated damages that equal the actual harm. The ‘genuine prior estimate of losses’ provision, which the party who breaches the contract attempts to exploit, is given weight by the courts in determining whether liquidated damages are appropriate or not. Additionally, there is no distinction between a penalty and liquidated damages under Indian contract law because the awarded compensation cannot exceed the contract’s maximum value.

Definition of Section 74 of the Indian Contract Act

“The complaining party is entitled to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named, or the case may be, the penalty stipulated for when a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty,”² according to the law.

Exception of Section 74

Any person who signs a bail bond, recognizance, or another similar document, or who offers a bond by law, a directive from the [Central Government] or a 3[State Government] for the accomplishment of a public duty or act in which the public is interested, is liable to pay the full sum specified therein if the condition of the document is broken.

Illustrations

1. In exchange for failing to pay B Rs. 500 on a specific day, A has agreed to pay B Rs. 1,000. On that day, A fails to pay B the sum of Rs. 500. A must pay B the amount of money the court finds appropriate, up to a maximum of Rs. 1,000.
   
2. A signs a recognizance obligating him to appear in court on a particular day in exchange for a fine of Rs. 500. His recognizance is lost. He is responsible for paying the entire fine.
   
3. A and B have an agreement that if A works as a surgeon in Calcutta, he would pay B Rs. 5,000. A is a surgeon who works in Calcutta. B is entitled to compensation that the Court deems appropriate, up to a maximum of Rs. 5,000.

Time Aspects and Other Dispositions

Time is a crucial component of this specific Section 74 of the ICA 1872. The Indian Contract Act of 1872 has significant repercussions that follow a delay, making it difficult for the party in default to immediately breach the contract. The important aspect of these actions is their profound philosophy. The contractual provision of a penalty is meaningless in the absence of any loss. 

The idea of taking advantage of rewards coming from a violation of a contract is mentioned in the Indian Contract of 1872. The bare act states that “When the vendor sells to the defaulting vendee is not eligible to receive the benefits of the later contract if the price is higher than the market price on the day of delivery.” This is accurate even if the vendor received the advantages of a different contract that was desirable to him in return for the loss of the contract that the defaulting vendee had breached.

Importance of Penalties

The essence of a penalty is the payment of the agreed-upon monetary recompense to the party who was wronged. The fundamental idea behind compensation is that the aggrieved party should regain its prior position before the contract’s performance. The landmark case Tata Iron & Steel Co Ltd v. Ramanlal Kandoi³ established this rule, stating that it is important to be aware of the events that caused the plaintiff’s loss of income. The innocent person needs to comprehend the damages.

A comprehensive analysis of the types of fines and damages is necessary. The mere use of terms like “loss” or “damages” does not make the defaulting party liable. A sequence of events must occur for the loss brought on by the contract’s breach to be fairly assessed. Section 74 of the Indian Contract Act abolishes the rather convoluted differences established under English Common Law between provisions allowing for the payment of liquidated damages and clauses in the form of penalties.

Jurisdiction of Section 74 of the Act

Bal Kishan Das v. Fateh Chand⁴, the Court explained the application of Section 74 by dividing situations involving damages into two categories:

1. First, whether the sum to be paid in the event of contract violation has been predetermined and 
2. Any further penalty clauses that may be included in the contract.

Analysis of Section 74 of the Act

When considering the application of Section 74 in Fateh Chand v. Bal Kishan Das⁵, The Court stated that it handles issues involving damages, which are divided into two categories. when the compensation due in the case of a contract violation is predetermined. Where penalties in the form of extra provisions may be included in the contract.

The Supreme Court noted that the expression is meant to embrace several sorts of contracts in Maula Bux v. Union of India⁶, It might not be practicable for the court to determine compensation in cases of contract breaches. If the sum agreed upon by the parties is a real pre-estimate and not a penalty, then it may be used in some circumstances as the benchmark for appropriate compensation.

The party seeking compensation must establish the loss incurred in cases when a monetary loss may be identified. In these situations, the courts must consider whether the amount sought is reasonable. The courts will do this while using the Section 73 principles. The magnitude of the damage incurred by a party must thus be shown in every instance. The obligation to establish the level of loss was waived in some instances, however, where the harm was difficult or impossible to demonstrate.

In Indian Oil Corporation vs. Messrs Lloyds Steel Industries Ltd⁷, the Delhi Court ruled that IOC was unable to receive liquidated damages since it had not experienced any losses as a result of the contractor’s construction and commissioning delays at the terminal in Jodhpur.

The court determined that the pipeline arrived at the Jodhpur port significantly later than the construction project’s completion date and that the terminal could not have been used for commercial purposes without the pipeline.

According to the Supreme Court’s decision in Oil & Natural Gas Corporation Ltd vs Saw Pipes Ltd⁸, when evaluating whether the party seeking damages is entitled to them, the conditions of the contract must be taken into account. unless it is determined that such an estimate of losses or compensation is excessive or acceptable, allowing for liquidated damages in the case of a contract violation.

The person who was harmed by a breach of contract may now obtain a decree without having to show that he experienced loss or damage thanks to Section 74. Even if no real loss is demonstrated to have been experienced as a result of the contract violation, the court is nonetheless permitted to award appropriate damages in such a situation.

If the damages are a true pre-estimate by the parties as the standard for fair damages, the court may nevertheless award them even if they are not a punishment or are reasonable. The court may find it challenging to determine the appropriate damages in some contracts.

Principal of Mitigation

According to the idea of mitigation, the complaint must make a concerted effort to accomplish considerably more in the typical court of commerce. The efforts he takes to remove himself in the case of a contract breach shouldn’t be measured on a high-tech scale. The complainant doesn’t need to endanger his assets, his reputation, or that of his business to reduce the damages that the defendant will be compelled to cover. In M Lachia Setty & Sons Ltd. v. Coffee Board Bangalore⁹, the Supreme Court decided that the mitigation principle should be the only consideration made while calculating damages rather than granting any rights to a party that violated the contract. In this case, it was determined that the complainant was required to do all reasonable efforts to limit the loss and that he was barred from pursuing claims for avoidable losses if he failed to do so.

According to the decision in Esso Petroleum Co. Ltd. v. Mardon¹⁰, the court has the jurisdiction to treat a prediction made concerning the subject of a contract at the pre-negotiation stage as more than just an expression of opinion and as a continuing guarantee. This is because the prognosis was provided to sway the other party into signing a contract. The person who produced the prediction may be held accountable for a breach of warranty if the estimate is subsequently found to have been prepared with complete negligence.

 In Murlidhar Chiranjilal v. Harishchandra Dwarkadas¹¹, according to the Supreme Court, there are two criteria used to determine damages when a contract for the sale of commodities is broken. The first step is to place the party that can prove the other party did not provide what they were promised in a position financially equivalent to what would have happened if the contract had been completed. The plaintiff is also not entitled to any damages resulting from failure to take reasonable efforts to mitigate the loss resulting from the breach.

Conclusion

Thus, it follows that the requirement that the loss sustained be shown violates the entire reason why liquidated damages provisions are included in contracts. The Act’s Section 74 emphasizes the need for fair pay. If the contract’s compensation was offered as a penalty, The consideration would be altered, and the party would only be eligible for damages reimbursement. However, if the compensation provided in the contract is a true pre-estimate of loss, which the party recognized at the time of contracting, there is no doubt as to how to prove such loss. In actuality, it is the opposing party’s responsibility to provide evidence that no loss is anticipated to result from such a breach.

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Endnotes:

1. Indian Contract Act 1872
2. Section 74 of the Indian Contract Act 1872
3. Tata Iron & Steel Co Ltd v. Ramanlal Kandoi, (1971) 2 Cal. Rep. 493, 528
4. Bal Kishan Das v. Fateh Chand, AIR 1963 SC 1405
5. Fateh Chand v. Bal Kishan Das, AIR 1963 SC 1405
6. Maula Bux v. Union of India, (1969) 2 SCC 554
7. Indian Oil Corporation vs. Messrs Lloyds Steel Industries Ltd, 2007 (144) DLT 659)
8. Oil & Natural Gas Corporation Ltd vs Saw Pipes Ltd, (2003) 5 SCC 705
9. M Lachia Setty & Sons Ltd. v. Coffee Board Bangalore, (1981) SCR (1) 884
10. Esso Petroleum Co. Ltd. v. Mardon, [1976] QB 801
11. Murlidhar Chiranjilal v. Harishchandra Dwarkadas, 1962 SCR (1) 653

This article is authored by Animesh Nagvanshi, a student at ICFAI University, Dehradun.

Introduction

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

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

Grounds of Alienation

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

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

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

Father’s Power of Alienation

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

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

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

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

Karta’s Power of Alienation

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

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

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

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

Coparcener’s Power of Alienation

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

Sole Surviving Coparcener’s Power of Alienation

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

Unauthorized Alienation of Property & Burden of Proof

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

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

Coparcener’s Right to Challenge such Alienation

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

Alienee’s Right & Remedies

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

Conclusion

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

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

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Endnotes:

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

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

Introduction

The law of torts is a significant part of the Indian legal system, providing remedies to individuals who have suffered harm due to the wrongful acts of others. Over the years, the law of torts in India has witnessed significant growth and development, thanks to the active role played by the judiciary. The courts have interpreted and applied tort law principles in various cases, shaping and expanding the scope of the law. In this context, this discussion will examine the growth of the law of torts in India and the role of the judiciary in shaping it. We will also explore how the Indian courts have relied on the principles of tort law in other common law jurisdictions to fill gaps in the Indian law of torts.

Relevance

The law of torts in India has seen significant growth and development over the years, with the judiciary playing a crucial role in shaping and expanding the scope of the law. Tort law refers to civil wrongs or injuries that are committed by one party against another, resulting in harm or loss, and for which the aggrieved party can seek compensation.

The growth of the law of torts in India can be traced back to the colonial period when the British introduced the concept of negligence and other tortious liability concepts to the Indian legal system. Over time, Indian courts have expanded the scope of the law to include various types of torts, such as nuisance, defamation, and trespass.

One of the key factors that have contributed to the growth of the law of torts in India is the changing socio-economic and political landscape of the country. As India has developed into a more complex and diverse society, the legal system has had to adapt to meet the changing needs and demands of its citizens. The growth of tort law has been driven by a need to protect individual rights and interests, as well as to promote social justice and equity.

Another factor that has played a significant role in shaping the law of torts in India is the role of the judiciary. The Indian judiciary has been proactive in interpreting and expanding the scope of tort law, often relying on international legal principles and jurisprudence to guide its decisions. Through its judgments, the judiciary has not only clarified the legal principles and concepts of tort law but has also established new precedents that have had far-reaching implications for the development of the law.

One example of the judiciary’s role in shaping the law of torts in India is the landmark case of M.C. Mehta v. Union of India^[1]. In this case, the Supreme Court of India recognized the concept of absolute liability, which holds industries strictly liable for any harm caused by their activities, regardless of whether they were negligent or not. This decision has had a significant impact on the development of environmental law in India, as it has provided a powerful tool for holding polluting industries accountable for their actions.

Another example of the judiciary’s role in shaping the law of torts in India is the recent case of Shayara Bano v. Union of India^[2]. In this case, the Supreme Court of India declared the practice of triple talaq (instant divorce) among Muslims to be unconstitutional and violative of the fundamental rights of women. This decision has not only had a significant impact on the rights of Muslim women but has also expanded the scope of tort law to include violations of fundamental rights as a tortious acts.

In conclusion, the growth of the law of torts in India has been driven by a need to protect individual rights and interests, promote social justice and equity, and adapt to the changing needs and demands of society. The judiciary has played a critical role in shaping and expanding the scope of the law, through its proactive interpretation and application of legal principles and concepts. As India continues to evolve, it is likely that the law of torts will continue to grow and develop, driven by the changing needs and demands of its citizens and the role of the judiciary in shaping the law.

Criticism of Growth of Torts

The law of torts in India has seen significant growth and development over the years, and the judiciary has played a crucial role in shaping the law. Tort law is concerned with providing remedies for civil wrongs or injuries caused by one party to another. The development of the law of torts in India can be traced back to the colonial period when the British introduced the concept of tort law in India.

One of the significant contributions of the judiciary in shaping the law of torts in India has been the recognition and expansion of the scope of tort liability. In the landmark case of M.C. Mehta v. Union of India^[3], the Supreme Court recognized the principle of absolute liability, which holds that any enterprise engaged in a hazardous or inherently dangerous activity must pay compensation to those who suffer harm from such activity, irrespective of whether or not the enterprise has been negligent. This decision expanded the scope of tort liability and ensured that victims of industrial accidents and environmental disasters received compensation for their losses. Another important contribution of the judiciary has been the recognition of new causes of action in tort law.

For instance, in the case of Vishakha v. State of Rajasthan^[4], the Supreme Court recognized sexual harassment at the workplace as a violation of a woman’s fundamental rights and awarded compensation to the victim. Similarly, in the case of R.K. Anand v. Delhi High Court^[5], the court recognized the tort of criminal contempt, which had not been previously recognized in India.

The judiciary has also played a crucial role in developing the principles of vicarious liability in India. Vicarious liability holds that an employer is liable for the torts committed by its employees in the course of their employment. The doctrine of vicarious liability has been expanded to cover not only traditional employer-employee relationships but also situations where a person has a sufficient degree of control over the activities of another person.

However, there are also some criticisms of the growth of the law of torts in India and the role of the judiciary in shaping the law. One of the main criticisms is that the development of tort law in India has been slow and inconsistent, and there is a lack of clarity on many tort law principles. For instance, there is no clear definition of what constitutes a tortious act, and the standards for determining negligence are not well-defined. This lack of clarity has led to uncertainty and confusion in the application of tort law in India.

Another criticism is that the judiciary’s role in shaping the law of torts has been too expansive, and this has led to judicial activism. Some argue that the courts have taken on a policymaking role in developing tort law, which should be left to the legislature. Judicial activism has also led to an increase in litigation and the clogging of the court’s dockets. In conclusion, while the growth of the law of torts in India and the judiciary’s role in shaping the law have been significant, there are also criticisms of the slow and inconsistent development of the law and the judiciary’s expansive role in policymaking. There is a need for greater clarity and coherence in tort law principles to ensure greater certainty and predictability in their application.

Conclusion

In conclusion, the law of torts has seen significant growth and development in India over the years. The judiciary has played a crucial role in shaping the law through its interpretations and rulings on various tort cases. The courts have often applied principles from other common law jurisdictions to fill gaps in the Indian law of torts. Additionally, the judiciary has expanded the scope of tort liability by recognizing new causes of action and extending the boundaries of existing torts. Overall, the growth of the law of torts in India and the role of the judiciary in shaping it have been instrumental in providing a remedy to individuals who have suffered harm due to the wrongful acts of others.

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Endnotes:

1. M.C.Mehta v. Union of India, 1987 SCR (1) 819; AIR 1987 965
2. Shayara Bano v. Union of India, AIR 2017 9 SCC 1 (SC)
3. Ibid 1
4. Vishaka and Ors. v State of Rajasthan, AIR 1997 SC 3011
5. R.K. Anand v. Registrar, Delhi High Court, 2009 8 SCC 106

This article is written by Aehra Tayyaba Hussain, a 1st-year B.A. LLB student at Symbiosis Law School Hyderabad. 

S.no	Contents
1.	Introduction
2.	Safeguard Of Liberty
3.	Essential elements in Safeguards of Liberty
4.	Safeguards the protected liberty of Indian citizens
5.	Right in Safeguard of Liberty
6.	Landmark Judgment
7.	Conclusion

“Without freedom of thought, there can be no such thing as wisdom – and no such thing as public liberty without freedom of speech”

By Benjamin Franklin

Introduction

Safeguards of Liberty in India was to protect people who are suffering and aged 16 or above 16 and also who needed it. Liberty Protection Safeguards(LPS) care for those people and treated their mental capacity with the proper agreement. In India basic right of the human being is liberty, the right to live life without fall of dignity. 

Every Individual who could have a Liberty Protection Safeguards authorization incorporate those with dementia, mental imbalance, and learning handicaps who come up short on the pertinent limit.

The Liberty Protection Safeguards were presented in the Mental capacity (amendment) Act 2019 and will supplant the Hardship of Liberty Safeguards (DoLS) framework. The Liberty Protection Safeguards will convey further developed results for individuals who are or who should be denied their liberty. The Liberty Protection Safeguards have been intended to put the privileges and wishes of those individuals at the focal point of all dynamics on the hardship of liberty.

The liberty protection safeguards are wanted to come into force in April 2022.[1]

Safeguard Of Liberty

Liberty is the most valuable thing for an individual and viable advances are required for its safeguards. From days of yore, there is a tussle between the state’s power and individuals’ liberties. An individual appreciates more freedoms assuming that the power of the state is abridged. Liberty can’t exist in a domineering state. Prof. Laski calls attention to specific strides for protecting freedom. “Opportunity, right off the bat, won’t be accomplished for the mass of men clear under unique certifications” and it can’t “exist in that frame of mind of honor”. Besides, “extraordinary honor is incongruent with opportunity”. Thirdly, “liberty can’t be acknowledged in that frame of mind in which the privileges of some rely on the joys of others”. Fourthly, “What is the state’s fundamental duty for safeguards liberty”.

Essential elements in Safeguards of Liberty

• The democratic form of Government

Democracy system is a type of govern­ment where everyone has an offer in the organization. Just democrat; states can give an amiable environment to the turn of events: human character. It is helpful for the full pleasure in liberty.

The Foundation of a majority rule framework is a fundamental shield of freedom. Both liberty and a democratic rules system are valuable to each other. We can’t imagine a majority rules government without the presence of common, financial, political, and individual freedom. Moreover, without even a trace of the right to opportunity, there can be no genuine majority rules government. Liberty is more secure and safer in the Majority rules system than in some other type of government. Popularity-based government is the public authority of individuals though in different types of government (like Outright Government and Fascism) all powers are focused and brought together under the control of one individual or a gathering of people. The individual in power or a gathering of people in power can’t endure his or their analysis. The nature of A majority rules system inverse gatherings is given due regard in Majority rules government. The contrary gatherings structure the public authority after the disappointment of the decision party. Analysis of the public authority is invited in Majority rule government.

• Fundamental Rights

There should be a reasonable and unambiguous rundown of essential fundamental rights in the Constitution. Individuals should be con­versant with their freedoms and the public authority should know about the limita­tion of abilities. These freedoms are justiciable and any demonstration that contradicts the arrangements of the Constitution can be announced ultra vires.

One of the vital strategies for safeguarding liberty is to consolidate a sanction of central privileges and opportunities in the constitution of the State. Alongside it, legal insurance ought to be given privileges. They safeguard our freedom to an exceptionally extraordinary degree. These basic freedoms likewise restrict the power of the state. In the presence of crucial freedoms, the state can’t meddle in that frame of mind of individual life. Without a trace of key freedoms freedom of the individual is never out of risk and without freedom improvement of human character is preposterous.

• Separation of Power

The powers of the public authority ought to be isolated among the chief, law-making body, and legal executive. This will help in forestalling any organ of the public authority. To turn out to be outright. Each organ of the public authority. Will work in its system. As indicated by popular French Researcher Montesquieu, detachment of abilities is a fundamental condition for pleasure in the freedom and the nations where there is the partition of abilities, individuals appreciate more freedom. This interaction is finished through the utilization of balanced governance. Lord  Acton believes that “Power taints an; outright power undermines totally.” Power has an internal pattern for abuse and power ought to go about as a check to drive.

• Responsible Government

An administration framed by the representa­tives of individuals will undoubtedly be capable. Any error concerning the public authority will sound its mark of the end and the resistance will exploit it. A bi-party framework with solid resistance will guarantee essential safeguards for liberty.

• Love for Liberty

For the security of freedom, individuals ought to have limitless love for freedom. On the off chance that it is thus, individuals might never want to lose their freedom and will be ready to make each penance for its insurance. During the opportunity battle, lakhs of Indians made penances of their lives as they went to gallows and prisons for the fulfilment of opportunity for their homeland.

• Rule of law

The idea of Law and order implies all people are equivalent under the watchful eye of law and regulation. This law and Regulation see no difference between the rich and poor, the high and low.

The rule of law is laid out in Britain, the U.S.A. also, and India. The idea of Law and order implies that all individuals are equivalent under the steady gaze of regulation. Regulation makes no separation between rich and poor, the high the low. All individuals ought to be under similar regulations and limited by similar sorts of commitments. Nobody ought to be above regulation. No honours will be given to an individual having a place with a specific class nor will there be any arrangement for insusceptibility. No individual will be rebuffed or saved in care for quite a while until and except if his wrongdoing is demonstrated.

• Constitution

Just the constitution limits the power of the state. It sets out specific obstructions and these hindrances are not to be crossed by the state while utilizing its power. For the most part, the constitution is acknowledged as the incomparable law of the nation, and if any organ of the public authority disregards any arrangement of the const., that act is pronounced unlawful by the courts. In brief, every organ of the public authority. Will undoubtedly work inside the structure of the constitution and this way the constitution safeguards the liberties of individuals.

• Independent Judiciary

There should be a free and fair judiciary for the assurance and conservation and individual liberty. The judiciary should be free of chief and authoritative control.

The autonomous, strong, and fair-minded legal executive is the greatest defender of freedom. Thus, arrangements ought to be made to keep the legal executive free. Assuming that the Legal executive is subordinate to the Leader or on the other hand on the off chance that it isn’t liberated from the impact of the Chief, it can not grant equity nor can it safeguard the major freedoms of man. In socialist nations or in nations that have Fascism, basic privileges are given to individuals, yet the Legal executive isn’t liberated from the impact of the Chief. In such nations, the safeguards and security of central privileges, constitution, and freedom aren’t exactly imaginable and freedom becomes simply a joke. Here, just keen and fair-minded people ought to be delegated as judges. They ought to be paid significant compensation and adequate annuity after retirement. Their residency ought to be long.

Safeguards the protected liberty of Indian citizens

• Right to life and individual freedom

 Article 21[2] gives that no individual will be denied his life or individual freedom besides as per technique laid out by regulation.

• Habeas Corpus

Habeas Corpus is a writ that is accustomed to bringing an individual who has been kept or detained under the watchful eye of a court. This writ is utilized to safeguard the liberty of a person.

• Legal Review

 Legal Survey is the force of the legal executive to survey the activities of the leader and authoritative parts of government. This power is utilized to guarantee that the public authority doesn’t abuse the central privileges of residents.

• Partition of power

Division of Abilities is a successful protection for individual freedom. The blend of a chief, administrative or legal powers in a similar individual or set of people could bring about the maltreatment of abilities and loss of individual freedom.

• Right to constitutional remedies

The Constitution accommodates different cures, for example, writs, orders, and headings that can be utilized by residents to authorize their central freedoms.

• Freedom of speech and expression

The right to speak freely of discourse and articulation is a principal right ensured by the Constitution of India. It permits residents to offer their viewpoints unreservedly unafraid of oversight or discipline.

• Right to information

 The Right to Information Act, of 2005[3] accommodates admittance to data held by open specialists. This right permits residents to consider public specialists responsible and guarantees straightforwardness in administration.

Right in Safeguard of Liberty

Article 5[4] says that safeguards are for anyone who is being arrested or detained. It is for all the people who suffer and those who are detained those people are sent to judge. Detention can be challenged if it is lawful. Victims get compensation for unlawful detention.

Some Restriction

A.K. Gopalan v. State of Madras[5] it was contended that the ‘procedure established by law’ implied equivalent to ‘due process of law’. Both the terms are equivalent and similar security is being given in both nations with a distinction that ‘due process of law’ covers considerable and procedural regulation yet ‘methodology laid out by regulation’ covers just procedural law.

In Maneka Gandhi v. Union of India[6], Chandrachud J. said that the system must be simple, fair and sensible, not whimsical, abusive, or erratic and Krishna Iyer J. said that the ‘law’ signifies sensible regulation and no established piece.

Landmark Judgment

This idea originally came up on account of A. K. Gopalan v. State of Madras[7]. In this situation, the solicitor was confined under Preventive Detainment Act. He tested this in the court that it be violative of his right to opportunity of development, which is the quintessence of individual freedom under Article 21[8]. The Supreme Court gave the significance of individual freedom in an extremely tight sense. It said that individual freedom incorporates just the actual opportunity of the body like independence from capture or unjust repression. It likewise said that the term ‘law’ is the state-made regulation as it were. The High Court held that Article 19[9] has no association and relevance to Article 21.

On account of Satwant Singh Sahney v. Identification Officer[10], the option to travel abroad is remembered as ‘personal liberty’ and no individual can be denied his entitlement to go besides according to the technique laid out by regulation. Refusal to give the identification of the individual with practically no reasons allotted for it adds up to an unapproved hardship of individual freedom as given under Article 21.

There was another instance of the State of Maharashtra v. Prabhakar Pandurang[11]. In this situation, it was seen that the detainee does not stop being an individual not having key privileges. The right to compose a book and get it distributed by a detenu is his major right and its forswearing without the power of regulation disregarded Article 21.

Conclusion

Every one of the previously mentioned focuses addresses the manners by which we can defend a singular’s liberty. These are just conceivable when every single individual no matter what their situation in the general public no matter what their positions no matter what component can make discrimination attempts to guarantee that freedom as a guideline or element pervasive in the general public isn’t compromised. Freedom is an essential element that guarantees that the Majority rule government in space wins. On the off chance that it falls flat, that Democracy is no Democracy and acts as a joke to freedom all in all.

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Endnotes:

1. https://www.gov.uk/government/publications/liberty-protection-safeguards-factsheets/liberty-protection-safeguards-what-they-are
2. Constitution of India, Article 21
3. Right to Information Act, of 2005, https://rti.gov.in/rti-act.pdf
4. Constitution of India, Article 5
5. A.K. Gopalan v. State of Madras, AIR 1950 SC 27
6. Maneka Gandhi v. Union of India, AIR 1978 SC 597
7. ibid 5
8. ibid 2
9. Constitution of India, Article 19
10. Satwant Singh Sawhney vs D. Ramarathnam, Assistant Passport Officer, 1967 AIR 1836, 1967 SCR (2) 525
11. State of Maharashtra v. Prabhakar Pandurang, 1966 AIR 424, 1966 SCR (1) 702

This article is authored by Pranita Dhara, a student of Lloyd Law College.

S.no	Contents
1.	Introduction
2.	The Consumer Protection Act
3.	Features of The Consumer Protection Act 2019
4.	Rights of The Consumers
5.	The Consumers Protection Act 2019 Authority
6.	Issues with Consumer Protection Act, 1986
7.	Consumer Protection Act 2019 Amendment
8.	Consumer Protection Act Demonstration and Direct Selling
9.	Supreme Court Cases
10.	Different Features of the Consumer Protection Act 1986 and 2019
11.	Conclusion

Introduction

Each person purchases different goods and services in their everyday life. Anything they purchase needs to Pay for itself and get fulfilment from its utilization and use. But now and again they don’t feel happy with the item they buy. This might be a record of low quality of the item, cheating by the retailer, lower nature of constants, deceiving promoting, etc.^[1]

The digital era has guided and immensely filled in this new period of online business and acquired its degree new assumptions and wants of the shoppers. It has now become effectively available, with more extensive decisions to the customers, and gives viable techniques for business.

Because such a transformation is achieved by digitalization, the consumer protection act, of 1986 had a few difficulties and confronted numerous mishaps which required quick consideration. Be that as it may, the public authority achieved an extraordinary change and presented the Buyer Security Act, 2019 which came into force on 20 July 2020. This previous sanctioning had been reconsidered once in a while to get it congruity with changes achieved by globalization, financial progression, digitalization of items and administrations, and so on be that as it may, its execution was far to accomplish its ideal goal of financial regulation which looked to give security of the interests of the customers. While then again the new Buyer Insurance Act, 2019 will fortify and upgrade the extent of assurance given to the purchasers by redoing the promoting claims, supports, disciplines, prison terms, organization of the debates, and different variables.

The Consumer Protection Act

Consumer Protection Act^[2] is a law that protects consumers from unfair, harmful methods by businesses and sellers of goods and services. First Consumers Protection Act came in 1986 and the parliament of India elected it. It also gives consumers the right to Safety, Choice. Also, the Consumers Protection Act imposes duties and liabilities on producers. It gives hope for the bits of help of helpless consumers. This Consumers Protection Act came as a “Panacea” for consumers all over the country. The Consumers Protection Act makes a system name “three-tier” it is set up at the State, District, and National levels. The Consumer Protection Act was replaced by the Government as The Consumers Protection Act 2019.

Features of The Consumer Protection Act 2019

The Consumer Protection Act 2019 has some features that are: 

• The Consumer Protection Act defines a consumer as a person who buys goods and services with careful thought. 
• Consumer Protection Act does not allow goods and services for commercial purposes. 
• Consumers Protection Act covers transactions with all modes online, and offline through electronic, also multi-level marketing. 
• For Consumer Protection Act central Government made set up it was CCPA (Central Consumer Protection Authority). 
• It protects and enforces the right of consumers CCPA impose a penalty for those who supply goods up to 10 lacks and two-year imprisonment for any false advertisement.
•  For subsequent offense fine extend to Rs 50 lakh and imprisonment for five years.

Rights of The Consumers

In The Consumer Protection Act 2019, Consumers have some rights that are:

• Consumers have the right to know all the information related to the goods and services, like goods and services quality, quantity, how much pure, and also the prices should inform the consumer. 
• Sometimes consumers’ right to protect goods and services can be dangerous to their life and property. Rights to protect from hazardous goods and services.
•  The consumer has the right to be protected from unfair trade practices. 
• They have the right to access a variety of goods and services.
•  Consumers should have the right remedy or compensation for any losses or suffering.
• Right to give consumers proper education.
• Also, the consumer has the right to need a clean and healthy environment.

The Consumers Protection Act 2019 Authority

• The central government establish an authority to protect consumer goods and services, which is CCPA (Central Consumer Protection Authority) as a regulatory authority.
•  CCPA protects consumer rights and regulated some cases that are related to unfair trade practices. 
• CCAP gives power to consumers.
• Consumers can take Suo-Moto action, recall the product and cancel licenses. 
• CCAP has the right to investigate consumer law violations.

Product of Goods and Services Liability

The huge expansion to the 2019 demonstration is the arrangement for item obligation by which the makers or specialist co-ops have been made dependable to repay the purchaser for any mischief, injury, or misfortune experienced because of damaged items, or lack of help. This additionally incorporates web-based business inside its ambit and even they can’t get away from the fury of the go-about as now the item responsibility has been stretched out to the specialist co-ops and not simply restricted to the producers.

• The defeat of some Design. 
• Responsible for all the compensation for injuries and damages. 
• Services of the product provided faulty.

Issues with Consumer Protection Act, 1986

• Remove all the  imperfections from the goods;
• Substitution of the goods;
• Discount of the prices which are paid;
• Give compensation to the consumer for all the losses or injuries;
• Withdrawal of the hazardous goods from being made available for purchase; or Giving satisfactory expenses to parties.
• Evacuation of deformities or lacks in the administrations;
• Discontinuance of unjustifiable exchange rehearses or prohibitive exchange practices or course not to rehash them.

Consumer Protection Act 2019 Amendment^[3]

• In chapter one section 2 sub-clauses(4),(13),(14),(16),(40)
• In chapter two sections 3 to 9 both are inclusive
• In chapter four sections 28 to 73 both are inclusive. Except for some sub-clauses (iv) of clause (a) of sub-section(1) of section 58.
• In chapter five sections 74 to 81 both are inclusive
• In chapter six sections 82 to 87 also both are inclusive
• In chapter seven sections 90 and 91 except sections 88,89,92&93
• In chapter eight  sections 95,98,100 sections 101 except for some clauses (f) and clauses (zg), (zh), and (zi) of the sub-sections 2
• Sections 102,103,105, 106, 107 except sections 94,96,97,99,104

Monetary Limit

The National Consumer Disputes Redressal Commissions(NCDRC) will hear grievances where the debate esteem is worth more than Rs. 10 crores. The State Consumer Disputes Redressal Commissions will hear objections where the contested worth is more than Rs 1 crore but not as much as Rs 10 crore. While the Locale Buyer Questions Redressal Commissions will engage in protests when the worth of products or administration depends on Rs 1 crore.

Consumer Protection Act Demonstration and Direct Selling

One more change was connected with online business working as per the regulations set for direct selling. The rules make it obligatory for the e-organizations to uncover the dealer’s subtleties like their location, site, email, and so on, and data connected with discount, return, assurance and guarantee, conveyance, shipment, instalment choices, the wellbeing of instalment, complaint taking care of the instrument and so on. This step is fundamental as in the developing universe of online businesses damaged and lacking items and administrations are given and through this arrangement the organizations could be punished for something very similar.

“Under the new Demonstration, the web-based business will be represented like direct selling in India and online stages for selling labour and products, or conglomerating administrations will be expected to take responsibility for any infringement of customer privileges or embracing any out-of-line exchange rehearses,”^[4] Mehta said

Supreme Court Cases

• Rojer Mathew v. South Indian Bank LTD.^[5] (This Judgement came in November 2019) Judgement given by Ranjan Gogoi Chief justice of India Leave Granted.
• Association For Consumer Welfare And Aid v. Granite Properties Private Limited (2019) This case was dealt with by the Supreme Court of India. The Judgement of the Court delivered by DR. D.Y. Chandrachud, j. Civil appeal no 259 of 2019 The National consumer disputes redressal commission(NCDR). “ The consumer on whose behalf this complaint is instituted did not hire or avail the services of opposite party 1 and therefore they cannot be said to its consumers.“^[6]

Current cases:

• M/S. Texco Marketing Pvt. Ltd. v. TATA  AIG General Insurance Company Ltd (2022)
• Ibrat Faizan v. Omaxe Buildhome Pvt.Ltd.(2022)
• Shankarlal Nandani v. South Indian Bank LTD.(2022)
• Texco Marketing Private Limited v. Tata Aig General Insurance Company Limited And Others. (2022)
• Sunil Kumar Maity v. State Bank of India and another(2022)

Different Features of the Consumer Protection Act 1986 and 2019

In consumer protection act there is some kind of differences we find between the consumer protection act 1986 and the consumer protection act 2019 that’s are:

• Regulator:
  In Consumer Protection Act 1986 there is no separate regulator but in Consumer Protection Act 2019 there is an authority formed that is CCPA(Central consumer protection act)
• Consumer Court:
  In the consumer act, 1986 complaint was filed in the consumer court where the sellers or the defendant’s office is located but in Consumer Protection Act 201complaintsed filed the consumer court where the complaints are worked. 
• Product Liability: 
  In Consumer Protection Act 1986 there is no such provision of product liability consumers can apply in civil court but not in consumer court. In Consumer Protection Act 2019 consumers have product liability they get their compensation for any kind of harm caused by the services. 
• Mediation Cells: 
  In Consumer Protection Act 1986 there is no such legal provision for Mediation cells but in Consumer Protection Act 2019 court refer settlement through the mediation cells.

Conclusion

The Consumer Protection Act 2019 is a productive step that would bear natural products later on. The act incorporates inside itself a few new ideas which were the need of great importance and the prospect of executing a similar in a nation like India would give a palatable outcome. In the developing universe of digitalization steps like e-recording of cases, and procedures through video conferencing will change, create and upgrade customer freedoms by and large. However, one can’t deny and scrutinize the execution of down-to-earth earth use of the arrangements. For any law and regulation to find actual success, fundamental its execution ought to be done appropriately and productively. Hence, for the 2019 demonstration to become useful it needs to defeat its disadvantages and slack ought to be given to realize the help for the shoppers. Consumer Protection Act gives a law designed to ensure fair competition and free of truthful information in the market areas. The law is designed to prevent businesses that are engaged in fraud or UTP(Unfair Trade Practices). The Consumer Protection Act 2019, is a Constructive Step that would bear fruits in the Future.

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Endnotes:

1. Consumer Protection Act 1987, https://www.which.co.uk/consumer-rights/regulation/consumer-protection-act-1987-a5xTL3w6L9OI
2. THE CONSUMER PROTECTION ACT, 1986, https://legislative.gov.in/sites/default/files/A1986-68_0.pdf
3. The Consumer Protection Act, 2019, https://consumeraffairs.nic.in/sites/default/files/CP%20Act%202019.pdf
4. Draft Consumer Protection (Direct Selling) Rules, 2021, https://consumeraffairs.nic.in/sites/default/files/file-uploads/latestnews/Draft%20Consumer%20Protection%20%28Direct%20Selling%29%20Rules%2C%202021.pdf
5. Rojer Mathew v. South Indian Bank Limited, (2020) 6 Supreme Court Cases
6. Shipra Singh, Here’s how consumers will benefit under the new Consumer Protection Act, https://economictimes.indiatimes.com/wealth/spend/heres-how-consumers-will-benefit-under-the-new-consumer-protection-act/articleshow/70711304.cms?from=mdr

This article is written by Pranita Dhara, a student of Lloyd Law College.

S.no	Contents
1.	Abstract
2.	Introduction
3.	Constitutional Theory in Different Countries
4.	Constitutional Theory in the Indian Context
5.	Background of Formation of the Constitution
6.	Salient features of the Indian constitution
7.	Conclusion

Abstract

This article aims to present an overview of Constitutional Theory, its types, and its evolution over the period of time. Further on it explains in detail the constitutional principles of some of the world’s strongest constitutions, particularly the Indian and US constitutions.

Introduction

Constitutional Theory is an aspect of constitutional law that focuses on the underpinnings of constitutional government. A constitutional theory tries to draw upon bases of agreement that exist within a legal culture and to extend those agreed-upon principles to solve issues and problems in society. Its main aim is an organization of all points of agreement together in a formal manner in cases where there is no agreement. This theory can be both subjective as well as prescriptive. On one hand, the constitutional theory is prescriptive as it purports to tell what to do but at the same time, it is also descriptive as it cannot call for a wholesome departure from existing practices.
Constitutional theory can be best understood if seen as an exercise of justification. More or less, it is an effort to justify a set of prescriptions about how certain controversial constitutions should be decided. The justification is then addressed to people within a particular legal culture There are broadly two aspects of constitutional law:

1. The first aspect which is more of a formal theory covers
   • The overall structure of the government
   • Relations amongst branches of government
   • Relations between various levels of government
2. The second aspect relates to the theories of judicial review, which provides justifications for the occasions on which the courts, ruling on constitutional issues, will and will not displace the judgments of elected officials.

A constitution is a set of fundamental principles or established precedents, all of which altogether constitute the legal basis of an organization, and polity and determines how that entity is to be governed. When all the principles (to be followed) are written down in a single document or multiple legal documents and are written in a single, codified, comprehensive document it is said to constitute a constitution.

Constitutionalism is a legal political philosophy that recognizes the need for a government but at the same time also emphasizes restraining its power. This evolutionary philosophy is essential for a democratic setup. Like constitutional theory, there is no uniform definition of constitutionalism but in modern times it emphasizes restraining the powers of government to an extent that it doesn’t hinder the self-development of the society and economy.

Constitutions concern different levels of organizations, from sovereign countries to companies and even unincorporated associations. Moreover, even a treaty that establishes an international organization can be termed to be a constitution since it describes how that organization was constituted. Constitutions especially codified one act as limiters of state power, by establishing lines that a state’s rulers cannot cross such as fundamental rights.

The constitutional theory differs from one country’s constitution to another’s.

Constitutional Theory in Different Countries

CONSTITUTIONAL THEORY AS ESTABLISHED IN THE UNITED STATES OF AMERICA is more of an academic discipline that focuses on the meaning of the US constitution, which draws attention to all aspects ranging from ethical, political, linguistic to sociological to historical. US’s constitutional theory emphasizes a lot of Judicial Review.

Judicial Review is a process wherein the judiciary reviews the legislative, executive, and administrative actions. It is one of the checks and balances in the separation of Power wherein the judiciary has the power to supervise the legislative and executive branches when the latter exceeds their authority. The types and general principles vary according to the jurisdiction and the country.

This idea of Separation of Power; initially introduced by Montesquieu, is based on the idea that no branch of government should be able to exert power over any other branch without due process of law, each branch should keep a check on the other to create a “regulative” balance amongst all.

When carrying out judicial review a court may ensure that the principle of ‘Beyond the Powers’ (ULTRA VIRES) is followed i.e. the public body’s actions must not exceed the powers given to them by legislation.

The great influence of judicial review in constitutional theory was established in Marbury v. Maddison^[1]. Broad concepts explained by the Constitutional Theory:

1. It seeks to understand the relationship between
   • Branches of government
   • Individual rights and state power
   • Federal government and state
2. It seeks to understand how the constitution’s meaning shifts with
   • changes in cultural norms
   • changes in Political structure

Some of the US’s constitutional theorists are:

• Bruce Ackerman
• Jack Balkin
• Ronaldo Dworkin
• Robert Post
• Class Sunstein

GERMANY’S CONSTITUTIONAL THEORY was established by Immanuel Kant and is based on the supremacy of a country’s written constitution This idea is the foundation for the constitutional theory of the 21st century.
Similarly, based primarily upon the German legal tradition, the Russian legal system was borne out. Russian legal state concept adopts the written constitution as a supreme law of the country, it consists of 6 democratic federative legal states with a republican form of governance.

Constitutional Theory in the Indian Context

The Constitution of India is the supreme law of the land in India. The constitution lays down the framework that demarcates fundamental political code, structure, powers, and duties and lays down fundamental rights, directive principles, and duties of citizens. The democratic values in Indian society are deeply rooted in REPUBLICS since the era of the Janpadas, which can be traced back to 600 BC. The constitution very well upholds the principle of equality in all fields like ethnicity, gender, religion and creed. The success of the constitution in such a vast and diverse country like India can be traced to the fact that India has successfully accommodated the aspirations of people since its creation. Despite many internal challenges in illiteracy, inequality and diversity of cultures, traditions, and religions in contemporary India.

Background of Formation of the Constitution

The Constitution of India was framed by the Constituent Assembly, elected by members of the various Provincial Assemblies. Dr B. R. Ambedkar was the chairman of the drafting committee formed by the Assembly. Our Indian Constitution was finally adopted by the Constituent Assembly on 26 November 1949 and became effective on 26 January 1950. At the time of adoption, the Indian Constitution consisted of 395 articles in 22 parts and 8 schedules. Later, additional parts and articles have been included in the Constitution through various amendments. Presently, there are 25 parts, 448 articles and 12 schedules in our Constitution.

The first ever report prepared, also called the Nehru Report was formed in 1928 when the All Parties Meet convened a committee in Lucknow.

The Indian Constitution is drawn from a large number of sources, depending on India’s needs and conditions. It draws inspiration from the already proposed constitutional theories in other parts of the world.

The constitution declares India to be a Sovereign, Secular, Socialist, Democratic, and Republic and assures to all its citizens Justice, Liberty, Fraternity, and Equality as prescribed in the Preamble of the Constitution.

The Indian constitution prescribes the functioning of each organ and even the biggest to the smallest unit of administration in India. The three pillars of the Indian legal–political system are the Legislative, Executive, and Judiciary. Constitutions are broadly classified by political scientists as being unitary or federal. In a unitary constitution, the powers of the government are centralized in one government which is the central government, the provinces are subordinate to the centre. However, on the other hand, in the case of a federal constitution, there exists a division of powers between the Federal and State governments. Indian constitution is however termed as a mix combo of both types of constitution i.e., a Quasi Federal constitution. Dr BR Ambedkar termed the Indian constitution as a
predominantly federal constitution with a slight mix of unitary features.

Salient features of the Indian constitution

1. Lengthiest Constitution
   The constitution of India is a written constitution that happens to be the lengthiest written constitution in the world. It is an extensive, elaborate, and detailed document.
   
2. Drawn from Various Sources
   It has taken the majority of its provisions from the constitution of several other countries as well as from the Government of India act, of 1935. Ex: structural part from GOI, 1935, independence of the judiciary from USA, Fundamental Rights from USA, etc.
   
3. The Preamble of the Constitution
   The Preamble includes the objectives, ideals, and basic principles of the Constitution. The Preamble is the nature of the Indian state and its purpose is committed to safeguarding the people. The Preamble of the Indian constitution also called a short introduction to the constitution sets out the main objectives which the legislation is intended to achieve. It is often termed as expressing the phrase “what we thought or dreamt for India for so long”.
   
   In the Re Berubari case^[2], the Supreme court held that the Preamble to the constitution is a key to opening the mind of the makers and shows the basic objective for which they made the different provisions in the constitution. However, at the same time, it doesn’t mean that it can override the express provisions of the constitution.
   
   In Kesavananda Bharati v State of Kerala^[3], the Supreme Court held that Preamble is a part of the constitution. Sikri, CJ had observed, “It seems to me that the Preamble of our Indian Constitution is of extreme importance and the constitution should be read and interpreted in the light of the grand and noble vision expressed in the preamble.”
   
4. Fundamental Rights and Duties
   The Constitution of India allows and ensures Fundamental Rights to its citizens.
   
5. Directive Principles of State Policy
   A unique part of the Constitution is that it consists of a chapter in the Directive Principles of State Policy.
   
6. Federal Structure of Government
   The Indian Constitution has conceived a federal structure for India in view of the geographical vastness and the diversity of regions, languages, castes, religions, etc.
   
7. Concept of Single Citizenship
   The concept of single citizenship has been envisaged in the constitution of India where all citizens enjoy common uniform citizenship.
   
8. Integrated Judiciary
   The Constitution specifies a single integrated judicial system for the Union and the states.
   
9. Basic Structure Doctrine
   The basic structure doctrine was firmly established by the Kesavananda Bharti v. State of Kerala^[3] which means that the basic structure of the constitution cannot be either changed or destroyed through amendments made by the Indian Parliament. It is probably one of the most important, landmark cases post-independence. While deciding on the issue, it was contended that in case unfitted powers were vested in the hands of the parliament, it would lead to misuse of power by the government as per their own whims and fancies. In short, this limitless power can erode the fundamental governing, and guiding principles of the constitution.
   
   It was held in the case of Indira Gandhi v. Raj Narayan^[4] and in the case of Minerva Mills v. Union of India^[5] that the where comes the question that whether a particular feature of the constitution is to be covered under the basic feature or not, is upon the discretion of the relevant court, before which the case has been brought up to.
   
10. Judicial Review
    It was held in the case of State of Madras v. V.G. Row^[6], Chief Justice Patanjali held that judicial review is an important component closely attached to the legislature.
    
11. Living Document
    Last but not the least, In the case of Nagaraj v Union of India^[7] it was held that the Constitution of India is a living document which is a set of leg rules for the present society but at the same time it envisages principles for the futuristic society keeping in mind the adaptation it shall have to take during times of various crisis of human affairs.

Conclusion

There are many interpretations and analyses of constitutional theory. It differs from country to country, organization to organization as the purpose of a constitution, a legal document that serves society also varies accordingly. The Indian constitution, the world‘s lengthiest and most complex constitution is a great blend of features adopted from the constitutions of countries from all across the globe. India, which adopted the path of democracy much later than other western countries, took inspiration from all these borrowed features to create a constitution which can meet the demands of the heavily diverse India. Some of the most salient features of the Indian constitution which make it stand apart from the other constitutions include being the lengthiest constitution, the preamble or the unique short brief to the constitution, and the concept of basic structure doctrine which has been laid down and upheld in several landmark cases. The Indian constitution most importantly is neither too rigid nor too flexible, it allows amendments to the existing structure through specified procedures, to cope up with the changes of time and society, hence making the Indian constitution a living document. Despite, all flaws pointed out by the critics, the Indian constitution has stood all tests of time and won in all aspects of the Indian Democracy.

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Citations:

1. Marbury v. Madison, 5 U.S. 137 (more)1 Cranch 137; 2 L. Ed. 60; 1803 U.S. LEXIS 352
2. Re: The Berubari Union, AIR 1960 SC 845
3. Kesavnanda Bharati v State of Kerala, AIR 1973 SC 1461
4. Mineva Mills v. Union of India, AIR 1980 SC 1789
5. State of Madras v. V.G. Row, 1952 SCR: AIR 1952 SC 196
6. Nagaraj & Ors. v. Union of India & Ors. (2006) 8 SCC 212

References:

1. Constitution of India, V.N Shukla
2. WILLIAM & MARY BILL OF RIGHTS JOURNAL: constitutional theory in a nutshell by THOMAS E. BAKER
3. What is a constitutional theory? – DAVID A. STRAUSS; CALIFORNIA LAW REVIEW (VOL. 97:581)
4. http://lexpeeps.in/indian-federalism-issues-and-challenges-2/
5. http://lexpeeps.in/interrelationship-between-fundamental-rights-and-duties/

This article is written by Jasmine Sethi, a 1^st-year law student at Dr B.R. Ambedkar National Law University

S.no	Contents
1.	Introduction
2.	Judicial and Executive acts: A General Exception under IPC
3.	Judicial acts as an exception
4.	Executive acts as a general exception
5.	Analysis regarding the judicial and executive acts
6.	Issues
7.	Suggestions
8.	Importance and need in the present scenario
9.	Conclusion

Introduction

The Indian Penal Code (IPC)^[1] contains several provisions that serve as general exceptions to criminal liability. These provisions exempt certain actions from being considered crimes under certain circumstances.

For example, Section 76^[2] provides that acts done by a person who is bound by law to do them are not crimes, while Section 80 provides that an act done in good faith for the benefit of a person without their consent is not a crime if it would otherwise have been so. Section 81 provides that an act done by several persons to further a common intention is not a crime if done in good faith for the advancement of religion, science, literature, or fine arts. The general exceptions under IPC are meant to provide a reasonable balance between the protection of individual rights and the public interest.

Judicial and Executive acts: A General Exception under IPC

Section 197 of the Indian Penal Code (IPC) provides a general exception for acts performed by a public servant in the discharge of his official duties, or by any person acting under the direction of a public servant if such act is done in good faith. This means that criminal proceedings cannot be initiated against such individuals unless prior sanction is obtained from the appropriate authority. This provision is intended to protect public servants from baseless lawsuits and ensure that they are able to perform their duties without fear of legal harassment.

Judicial acts as an exception

The judicial act exception under the Indian Penal Code (IPC) is a provision in Section 197 of the code that exempts public servants and persons acting under the direction of a public servant from criminal liability for acts performed in good faith in the discharge of their official duties. This provision applies to acts performed by judges, magistrates, and other public servants in the course of their official duties and provides immunity from criminal prosecution for actions taken in good faith in the performance of such duties. The purpose of this exception is to ensure that public servants are able to perform their duties without fear of being sued for criminal offences and to prevent frivolous or malicious lawsuits from being filed against them. However, prior sanction from the appropriate authority is required before criminal proceedings can be initiated against a public servant under this exception.

Case Laws that give us a vivid idea regarding the prevailing exceptions

There are several case laws that have interpreted and applied the judicial act exception under Section 197 of the Indian Penal Code (IPC). Some of the notable cases include:

R. Rajagopal v. State of Tamil Nadu^[3]: In this case, the Supreme Court of India held that the judicial act exception under Section 197 of the IPC applies only to acts performed in the exercise of judicial or quasi-judicial powers and does not extend to acts performed in an administrative capacity.

State of Maharashtra v. Narayan Dattatraya Apar^[4]: In this case, the Supreme Court held that the judicial act exception under Section 197 of the IPC applies only to acts performed by public servants in good faith and within the scope of their official duties and not to acts of omission or commission that are mala fide or beyond the scope of their official duties.

K.R. Lakshmanan v. State of Tamil Nadu^[5]: This case dealt with the issue of whether the prior sanction was required before a public servant could be prosecuted for an act performed in the discharge of his official duties. The Supreme Court held that prior sanction was required before the prosecution could be initiated against a public servant under the judicial act exception in Section 197 of the IPC.

These cases provide guidance on the scope and application of the judicial act exception under Section 197 of the IPC and have helped to clarify the rights and obligations of public servants in the performance of their official duties.

Executive acts as a general exception and what makes it different from judicial acts

The executive act exception under the Indian Penal Code (IPC) is a provision in Section 197 of the code that exempts public servants and persons acting under the direction of a public servant from criminal liability for acts performed in good faith in the discharge of their official duties. This provision applies to acts performed by executive officials, such as government employees and officers, in the course of their official duties and provides immunity from criminal prosecution for actions taken in good faith in the performance of such duties. The purpose of this exception is to ensure that public servants are able to perform their duties without fear of being sued for criminal offences and to prevent frivolous or malicious lawsuits from being filed against them. However, prior sanction from the appropriate authority is required before criminal proceedings can be initiated against a public servant under this exception.

Analysis regarding the judicial and executive acts

The judicial act exception under the Indian Penal Code (IPC) serves an important role in protecting public servants, including judges and magistrates, from frivolous or malicious lawsuits arising from actions taken in good faith in the discharge of their official duties. This exception helps to ensure that public servants can carry out their duties without fear of legal harassment, which is essential for the effective functioning of the justice system.

However, the scope and application of the judicial act exception under Section 197 of the IPC have been the subject of debate and legal interpretation in several cases. Some critics argue that this exception provides too much protection for public servants, allowing them to escape accountability for actions that may have been taken in bad faith or outside the scope of their official duties.

Issues

The scope and application of the judicial act exception under Section 197^[6] of the IPC have been the subject of legal interpretation in several cases, with some critics arguing that this exception provides too much protection for public servants and allows them to escape accountability for actions taken in bad faith or outside the scope of their official duties.

For example, the Supreme Court of India has held that the judicial act exception under Section 197 of the IPC applies only to acts performed by a judge in the exercise of judicial or quasi-judicial functions, and does not cover acts performed in administrative or executive capacities. This interpretation helps to ensure that public servants are not immune from prosecution for acts taken in bad faith or outside the scope of their official duties.

Another issue with the judicial act exception under Section 197^[7] of the IPC is that it requires prior sanction from the appropriate authority before criminal proceedings can be initiated against a public servant. In some cases, this requirement has been criticized for being too burdensome, as it can result in delays in prosecuting public servants for criminal offences.

Suggestions regarding the judicial and executive act exceptions of IPC

One suggestion to address these concerns could be to clarify the definition of “good faith” under Section 197 of the IPC so that it better captures the essence of what constitutes an act performed in good faith. This could help to ensure that public servants are not immune from prosecution for acts of bad faith or malicious intent.

Another suggestion could be to provide a mechanism for the review of decisions regarding prior sanction for prosecution under Section 197 of the IPC so that individuals who believe that they have been wrongly denied the right to prosecute a public servant can have their case heard and reviewed.

Overall, it is important to strike a balance between protecting public servants from baseless lawsuits and ensuring accountability for actions taken in bad faith or outside the scope of their official duties. A careful review and re-evaluation of the judicial act exception under Section 197 of the IPC, along with the suggestions outlined above, could help to achieve this balance.

Importance and need in the present scenario

The judicial and executive act exceptions under the Indian Penal Code (IPC) serve an important function in protecting public servants from baseless or malicious lawsuits arising from actions taken in good faith in the discharge of their official duties. These exceptions ensure that public servants can perform their duties without fear of legal harassment, which is essential for the effective functioning of the justice system and the administration of government.

However, the scope and application of these exceptions have been the subject of debate and legal interpretation in several cases, with some critics arguing that they provide too much protection for public servants and allow them to escape accountability for actions taken in bad faith or outside the scope of their official duties.

To address these concerns, suggestions have been made to clarify the definition of “good faith” under Section 197 of the IPC and to provide for a mechanism for review of decisions regarding prior sanction for prosecution. A careful review and re-evaluation of the judicial and executive act exceptions under Section 197 of the IPC could help to strike a balance between protecting public servants from baseless lawsuits and ensuring accountability for actions taken in bad faith or outside the scope of their official duties.

Conclusion

In summary, the judicial and executive act exceptions under the IPC play a crucial role in the functioning of the justice system and the administration of government, but it is essential to ensure that they are applied in a manner that balances the protection of public servants and the need for accountability. The judicial act exception under the Indian Penal Code (IPC) is an important provision that provides immunity from criminal prosecution for public servants, including judges and magistrates, for acts performed in good faith in the discharge of their official duties. This exception is intended to protect public servants from frivolous or malicious lawsuits, which could have a chilling effect on the administration of justice.

To address these concerns, some have suggested that the definition of “good faith” under Section 197 of the IPC be clarified so that it better captures the essence of what constitutes an act performed in good faith. Additionally, a mechanism for review of decisions regarding prior sanction for the prosecution could be established, to ensure that individuals who believe that they have been wrongly denied the right to prosecute a public servant have their case heard and reviewed.

In conclusion, while the judicial act exception under the IPC serves an important function in protecting public servants from baseless or malicious lawsuits, it is important to ensure that it is applied in a manner that balances the protection of public servants and the need for accountability. A careful review and re-evaluation of the judicial act exception under Section 197 of the IPC, along with appropriate reforms and clarifications, could help to achieve this balance.

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Endnotes:

1. Indian Penal Code, 1860, Act no. 45 of 1860
2. Indian Penal Code, 1860, Sec. 76, Act no. 45 of 1860
3. R. Rajagopal v. State of Tamil Nadu, 1994 SCC (6) 632
4. State of Maharashtra v. Narayan Dattatraya Apar, (1981) 83 BOMLR 553
5. K.R. Lakshmanan v. State of Tamil Nadu, 1996 SCC (2) 226
6. Indian Penal Code, 1860, Sec. 197, Act no. 45 of 1860
7. Ibid

This article is written by Prashant Prasad, a second-year law student from University Law College.

S.no	Contents
1.	Introduction
2.	How crime is defined by society?
3.	Analysis of crimes against the society
4.	Recent developments
5.	Conclusion

Introduction

A crime committed against society at large that puts society’s safety at risk is known as public tranquillity or offense against society. It is not necessary that an actual offence is committed towards society, even an apprehension is created in the mind of the public at large or society, even if an apprehension is created in the mind of the public at large or the society that they are under the threat of an offense or an action by any person would result in an injury to them is necessary enough to constitute to an offense against the society. These offenses are usually committed by individuals in a group with a common object to hamper the peace of society. 

How crime is defined by society?

The word society has been derived from the Latin word ‘ socius meaning association. Therefore, a society can be defined as an ‘association of people or people in a group who are related to each other by means of some common traits. While governing a society, the interests of the people are taken at large rather than depending on the needs and wants of one single person. The requirement of the people at large is considered. Different Legislations are not passed for different individuals, for one single society common legislation is applicable to them. A committed is defined as a crime only when it is wrong in the eyes of society. 

If a particular act is not opposed by a group of people, then it can never be considered an offense. For example, trespass, money laundering, and bribery these acts wouldn’t be a crime if it was not wrong in the eyes of society. Therefore, what society thinks is important in defining a crime.

The foundation of a society lies in the maintenance of peace and morals. Therefore, chapter 8 of IPC has been framed to deal with those actions which would put society’s peace at risk. The offenses which put public safety at risk can be classified into rioting, unlawful assembly, affray, assembly of five or more people in a situation where dispersion has been ordered and promotion of enmity between different classes of people.

Analysis of crimes against the society

Section 141- unlawful assembly: Every person has the fundamental right to assemble peacefully under Article 19(1)(b). However, certain circumstances given under section 141 of the IPC lead to unlawful assembly and it is considered a criminal offense. Any assembly which has been formed with 5 or more people with the intention to commit an unlawful offense is called an unlawful assembly. People in groups with a common intention and object to gather unlawfully and create a threat to the public peace is always dangerous. This is the main reason why unlawful assembly is criminalized. When an assembly gathered lawfully turns out to be aggressive and indulges in unlawful means, it will come under the purview of section 141 of IPC. The instances where there is a shift from lawful assembly to unlawful assembly is when the object of the assembly changes to resist legal proceedings, using criminal force against the state or any public servant, to committing trespass or mischief of the property of any person, to using criminal force against a person to make him do something against the law. 

In the case P.S. Kirubakaran v. Commr. of Police, Vepery (2021)[1], In this case, a group of advocates indulged in certain criminal activities like forcibly getting possession of certain properties, destruction of properties, etc., and therefore they caused the interruption in the peace of the society. The court charged them with the offense of unlawful assembly and took measures to curb such practices.

In the case of Amrika Bai v. State of Chhattisgarh (2019).[2], dealing with the offense of unlawful assembly and the scope of section 141 of IPC was analysed. In this case, the cattle of the deceased jumped on the door of the appellant as a result exchange of words took place and the appellant started abusing the deceased after which an attack by a group of people took place, and eventually the deceased died. The appellant also sustained injuries during the attack and challenged before the court that he was unarmed during the attack and therefore he is not a part of the unlawful assembly. The court acquitted the accused.

 Merely a person being part of an assembly that has indulged in an unlawful act is not enough, it is also necessary that at the time of the commission of the act, the people indulged also had the same object. Therefore, in the present times, section 149 is one of the most misused sections as it is difficult to interpret every person’s object in an assembly and there are chances of misrepresentations where an innocent person would be charged with a crime.

Section 146- Rioting: Rioting is dealt with under sections 146 and 147 of the IPC. Riot is similar to that unlawful assembly, and the only difference is the term violence. If an unlawful assembly starts to get engaged in any violent act, it will be known as a riot. Therefore, the ingredients of rioting are the same as that of unlawful assembly which is a common intention. Engaging in violence is always a threat to the harmony of society. It will affect the co-existence of society. . Rioting Is committed as a means to show the group’s intention to oppose the policies of the government, the outcome of any legislation passed or a judgment made, etc. Under most circumstances, grave and sudden provocation lead to riots. An act done in sudden provocation is considered a defense under IPC. But the impact of this act is so huge as it can even cause disintegration and heavy losses and damages.

In the case Bilkis Yakub Rasool v. State of Gujarat (2019)[3], the appellant was a victim of gang rape that occurred during a riot in the year 2002 which came to be known as godhara train incident. She also lost her family during the attack. The Supreme Court in this case gave a compensation of 50 lakhs to the appellant under section 147 of IPC who was surviving with a daughter deprived of basic necessities of life such as food, shelter, etc. 

Affray: Affray is usually committed by 2 or more people when they fight in public which disrupts the peace of society. The offense is committed in such a manner that there must be some sort of disturbance to the public arising out of the actions of the people engaging in the fight. For example, If one person comes and attacks another person by knocking him down in a private place, it does not amount to affray as there is no chance of the act disrupting the peace of the society. Punishment for the offense of affray is imprisonment of one month or fine or both. Punishment is less compared to rioting and unlawful assembly only because of the fact that the impact caused by the offense of affray is much less.

Section 153- Promoting enmity between classes. The outcome of a clash between different communities of society is huge. Thus, the need to criminalize the act of causing enmity was considered, and causing enmity between people belonging to different classes or different sections of society based on class, sex, religion, language, place of birth, etc. is considered a criminal offense. This section is wide in nature and consists of those offenses like moral corruption. The validity of this section has been challenged overtime on the basis that it is a violation of Article 19(1)(a) as it restricts freedom of speech and expression for any statement made which can create an enmity between communities. But the validity of this section was still upheld considering the fact that creating disruption among communities can lead to a threat to the country’s national security and sovereignty. Every person has the right to express their opinions through any means but there are certain restrictions laid down under article 19(1)(f) and promoting enmity is one such restriction.

In the case Patricia Mukhim v. State of Meghalaya & Ors. (2021)[4], In this case, the appellant through the means of the social media platform ‘Facebook’ posted writing representing the non-tribal group of Meghalaya, and therefore, he was charged under section 153A of the IPC. The court in this case analyzed section 153A of IPC and held that the main intention behind this section is to prevent any sort of act which would disrupt public harmony and create a threat to the nation’s sovereignty or national security. The appellant didn’t have any motive to create disturbances among communities by publishing the statement and it was just pleading for equality. 

The concept of good faith plays an integral role to define the offense of promoting enmity. Actions that are done in good faith without a wrongful intention are always a defense.

Vinod Dua V. Union of India & Ors. (2020)[5], In this case, the petitioner filed for a writ petition under Article 32 of the constitution. The petitioner was accused of creating a disturbance in society by making malicious statements against the prime minister and the government through his youtube channel for providing false information regarding PPE kits to the public. The Supreme court in this case held that the statement made by the petitioner was just a disagreement against the policies of the government and that won’t cause any disturbance to the peace of the society.

In the case Bijumon v. State of Kerala (2018).[6], In this case, the accused was charged under section 153A for publishing wrong information regarding a communal war between Christians and Muslims. The petition for anticipatory bail from the side of the accused was dismissed by the court as a such publication can result in putting the public peace in danger.

Recent developments

The National Incident-Based Reporting System (NIBRS) by the Uniform crime reporting program, each offense reported where classified into offenses against persons, offenses against property, and offenses against society. Offenses against society are basically victimless offenses that put the safety of society at risk. Some offenses classified as offenses against society in the alphabetic order are animal cruelty, drug violations, gambling offenses such as betting or wagering, offenses under pornography or obscene material, prostitution offenses, weapon law violations, intoxication such as drunk and drive, family offenses, and trespass of real property. 

In a recent judgment, the Allahabad High court denied a bail application of a baba who was accused of raping a minor girl and stated that ‘rape is not just a crime against an individual it is a crime against society.’ Sexual assault against a girl would result in inducing trauma in the mind of any girl belonging to that society, not just the victim. The impact of the offense is something that must be overlooked. If the impact of an offense is on one single person it cannot be a crime against society. If a person is stabbed by his colleague during an argument it can never be a crime against society as the impact of the crime is on the victim only. But when the person has been murdered in a heinous manner, this creates a situation of fear in the minds of the people in the society too. The impact is not just on the victim or the family of the victim. It is collective in nature.

Similarly, a bench of Justices S A Nazeer and V Ramasubramanian made the observation that the practice of corruption by a public servant is an offense against the state or the society, and such cases cannot be dealt with under the suit of specific performances. The offense of corruption is of the nature that people in the society as a whole will start losing their trust in the government and other officials, as well as the rich or privileged section, would get an upper hand in the society. This might lead to the disintegration of the nation and society. Therefore, the impact is huge.

Conclusion

The public or society is considered the core of the country’s democracy, Therefore, any offense which is committed against an individual does not come under the purview of the chapter of IPC but it can disrupt public peace and is categorized as an offense against society. During the pandemic, there was a steady increase in the number of cases against society, especially through social media. A lot of wrong information about the spreading of covid 19 government policies was spread across the nation creating a situation that made society to be panic.

Along with the legislation and the laws brought in to tackle the offenses against society, the judgments passed in various cases are also an essential means to maintain public peace.

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References:

1. P.S. Kirubakaran v. Commr. of Police., SCC OnLine Mad 508.
2. Amrika Bai v. State of Chhattisgarh., (2019) 4 SCC 620.
3. Bilkis Yakub Rasool v. State of Gujarat., (2020) 13 SCC 733.
4. Patricia Mukhim v. State of Meghalaya & Ors., 2021 SCC OnLine SC 258.
5. Vinod Dua v. Union of India & Ors., 2020 SCC OnLine SC 1209.
6. Bijumon v. State of Kerala., 2019 SCC OnLine Ker 11481.
7. Press Trust of India, Rape is a crime against society, not just an individual: HC, The Times of India (Jan 03, 2023, 11:50 IST), https://timesofindia.indiatimes.com/city/allahabad/rape-a-crime-against-society-not-just-an-individual-hc/articleshow/85875192.cms

This article is written by Vishal Menon, from Symbiosis Law School, Hyderabad.