Tag: #SupremeCourtofIndia

Bench

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

Advocates

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

Cases Referred

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

Factual Observations

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

Issues Raised

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

Contentions

APPELLANT

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

RESPONDENT

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

Difference of Opinion B/W Lower Court and SC

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

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

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

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

Judgment of SC

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

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

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

Ratio Decidendi:

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

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

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

Concluding Observations:

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

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

References:

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

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

Abstract

Gambling, in the current time, is mushrooming at an enormous speed, thereby posing a grave threat to the stakeholders involved due to its inherent vulnerability. The vociferous and the reverberating calls for its legalization newer assume more significance given the nebulous state of gambling laws in the country. Although the legalization would bring with itself a gush of entailing benefits, the profound and the pressing issues at hand pertaining to legalization are required to be given a thorough perusal including the pricking need to overhaul enforcement mechanism rather than venturing into the question of how and when to legalize the gambling given the legal and socioeconomic intricacy of India.

Introduction

It would be apposite, to begin with, the scrutinization of the term “gambling”. Gambling is a game that involves chances of winning or losing money or possessions of bet. Cambridge dictionary defines betting as the habit of risking money and placing a wager on the outcome of sports events. Gambling is a genus while betting is a species and both function on the coefficient of unpredictability especially those of the sporting events. The modern world thrives on the perpetuities of monetary gains and gambling serves as a handy way to satiate those materialistic needs.

This article seeks to systematically articulate the advantages and disadvantages that ensued due to the legalization of gambling, thereby concluding with some apposite and congruous solutions.

Background

India and gambling have had a substantiative co-relationship since ancient times, with the Rig Veda believing to have documented its first description. Since then, gambling has been a popular choice in India among the masses when it came to quick monetary gains in the course of satisfaction with worldly needs. Initially, gambling was encouraged in colonial India due to its economic benefits, but soon, it was illegalized due to its ensuing negative consequences such as bankruptcy, criminal delinquency, etc.

Thus, the Public Gambling Act of India was passed in 1867¹ to regulate and restrict gambling practices, thereby, illegalizing gambling albeit without sufficient punitive sanctions. The Act sought to restrict most forms of gambling including sports gambling (lotteries, casinos, festive gambling, etc were allowed and regulated in a few states) that was wagering in nature involving pure chance (eg: using the roll of dice or marble to determine the outcome) baring the few games that involved “skill” and not pure chance such as horse racing; online games of skill such as rummy, poker, fantasy games, etc. In K.R. Lakshmanan v. State of Tamil Nadu², the Apex court held that “The test of the legality of gambling vis-à-vis nature of sports is dependent upon the dominance of the element of skill/chance with regard to a recognized sport.”

With the advent of the constitution, Subjects of betting and gambling were kept in the State list as entry no. 34. The States have been given the liberty to delve into their own legislation on betting and gambling, having the freedom to regulate and deregulate it. While some states such as Sikkim (which has legalized betting in the online form), Kerala (conducts State-run lotteries), Goa³ (which has legalized casinos), etc have framed their own betting laws, others continue to govern themselves via the Central legislation of 1867. In a nutshell, both online and offline sports betting baring the games involving “skill” are currently illegal in India.

In recent times, gambling has unfettered its wings, mushrooming at an enormous speed with no signs of ebbing down in near future, more so due to the advent of advanced technology, penetration, and access to the internet in even the remotest corner of the world. India, too remained at the forefront to exploit this vice opportunity, with the 2016 ICC and the 2013 IPL betting scandals that involved thousands of crores of Rupees, giving testimony to this booming trend. It was in light of such massive illegal betting markets and the large-scale flouting of the law by the masses that the Supreme Court of India, in 2016, mandated the Law Commission of India (LCI)⁴ to examine a logical way to deal with India’s illegal gambling.

The LCI mentioned in its report that– “since it is not possible to prevent these activities completely, effectively regulating them remains the only viable option” Also, a Private Member Bill was introduced by Mr. Shashi Tharoor in 2018 in this regard, which articulated the legalization of sports betting in India under strict surveillance as it would curb the illegalized betting ecosystem in India which was under the monopolistic ambit of underworld mafias. It would curb the black money market, along with the generation of massive revenues for the government which could then be utilized for funding the sports infrastructure and betterment of athletes. Some of the potential restrictions that the bill sought to introduce were barring the minors from participating and limiting the highest betting fees one can bid. The bill impeccably envisioned the regulation mechanism by introducing a 7 member committee that would be responsible for formulating the rules and regulations monitoring sports online gaming. The bill also sought to criminalize the activities of sports fraud and match-fixing to the extent of 5 years of imprisonment and hefty fines which in turn would espouse deterrence. The bill also focused on maintaining the integrity of sports and preventing any event such as manipulations or match-fixing as those current pressing issues were not dealt with by the present legal framework.

Advantages of legalizing gambling

Gambling is one of the forms that has been an inherent phenomenon in Indian society and curbing it entirely won’t be certainly possible, more so because of the willful and brazen flouting of the legal norms by masses. Hence, giving it a legal sanctity would be a desirable approach in the discourse of its regulation and fund generation thereby espousing public consent and adherence rather than remaining oblivious to its incongruous existence. Far from this realization has been the seemingly illogical approach of the legislative setup which has still kept it within the cloak of illegality. This has been further reinforced by the Indian Judiciary by keeping horse race (on the basis of predicting the winnability) under the gamut of ‘games of skill’ but not the other games involving technicality and intricacy of similar nature such as cricket or hockey.

The most popular form of gambling has been in the sporting activities involving bets, which has evolved itself as a clandestine ecosystem possessing a huge network of people and enormous amounts of money. The Drastic modernization in the sports ecosystem coupled with the digital boom has led to sweeping revolutionary changes across the spectrum. This in turn accentuated the gambling culture creating a mammoth web of individuals and finances involved in this subculture. The first step in the legalization process would involve systematic identification and acknowledgment of these prevailing entities. Next would come regulation, owing to the fact that an exorbitant amount of Rs 300,000 Crores of black money is used annually for betting and the sector involves an enormous cash flow worth 60 billion dollars which is 3.5% of India’s GDP. It will lead to transparency as the source of cash flow could be traced and tracked thereby keeping a tight check on the black money market. Licensing of the brokers would further keep a check on them by curbing the black money laundering in illegal betting which is often used to fund terrorism and related nefarious activities¹. Involving in such illegal activities could lead to the cancellation of their licenses which in turn would serve as a deterrence to them. The legalization of sports betting would also ensure the protection of the subtle interests of minors, uneducated, poor fellows with a limited income and lack of bargaining power, and the elderly with shrinking life savings, who are often cheated by brokers. They remain at disadvantage due to unregulated and unenforceable market agreements lacking legal recourse owing to the wagering nature of the contract where the interests of the weaker party lacking bargaining power is jeopardized.

Currently, the earnings under betting are not reported as a source of taxable income under the Income Tax Act, 1961, thus, creating an avenue for black money. Legalizing the same would make the disclosure of such income mandatory (paving the way for effective surveillance and regulation) along with the generation of revenue receipts for the government to the tune of a minimum of Rs 12000 crores per annum⁵. It would also check on the tax evasions by brokers and bettors. The fund generated could be used for revamping sports infrastructure and related welfare schemes of the country along with peddling the development of the tribal and conventional sports that have been grossly neglected owing to their unpopularity and lack of resources.

Legalization would also serve as the panacea for ever-rising unemployment in the country by providing jobs ranging from the post of officers (required to monitor betting transaction) to a new catena of brokers who would specialize in sports betting along with a majority of unskilled workers employed in the implementation of menial economic activity in the betting industry. India, having the required knowledge, expertise and population could also evolve itself into a niche avenue for cyber betting like Denmark, the USA, etc, thus bringing with itself valuable foreign exchange which in turn would fuel the economic prosperity of the country.

Further, policing of the current gambling laws which illegalize it becomes a major problem due to the sheer numbers of “law-breakers” and exhaust colossal time of the law keepers which could be efficiently used for other productive work. Even effective policing results in large numbers of people gaining criminal records, with all of the consequential social problems. (employment problems, social and family stigma due to criminal record, etc). Hence, legalization would serve to meet the above ends. One other argument often posed in favor of legalization/regulation is that gambling adversely affects only a minority (less than 1% of the population due to problem gambling). So depriving the majority of a harmless leisure activity when it could add to a mix of other advantages is not worth it

Disadvantages of legalizing gambling

It is argued that the job of the government is to lead the people and not to simply follow popular views, especially if there are “public interest” reasons for pursuing unpopular routes. The concept and practice of gambling have historically been frowned upon in the Indian context. The moral issues constrain the government from peruse the idea of legalization as this has been a forbidden virtue in the Indian sub context given its entailing disadvantages. Giving it a legal sanctity would go against this entrenched ideal of morality.

Legalization would entail massive social costs as various studies have revealed that adolescents engaging in such activities possess a higher rate in school and academic failure accompanied by a history of family conflict triggered by the loss of household income, erratic sexual activity, severe financial difficulties such as large debts, poverty, and even bankruptcy; conflict and breakdown in relationships and a variety of psychological illnesses including anxiety and depression and psychiatric disorders, thus, paving way for baleful tendencies to commit suicide arising out of the ensuing depression.

State-sanctioned gambling would disproportionately burden the socially and economically backward people who expend a greater portion of their income into such wagering contracts, thus, exposing them to the channels of destituteness and crimes such as fraud and embezzlement, to address the mounting financial demands of their gambling. It will also push them into the scourging avenues of alcohol and drug addiction thereby instigating a vicious cycle of economic losses. Apart from the above menaces, gambling would also seriously impact the integrity and the true sportsmanship spirit of the sports due to the money factor and instances of match-fixing.

A logical argument against gambling follows that if gambling were to be legalized, it follows that more people would gamble (due to its enticing nature), and subsequently, more would become problem gamblers who face the adverse effects of gambling. Studies corroborate the above fact showing that increased availability of and easy accessibility to 2 gambling increased the participation in gambling and also the consequent prevalence of problematic gambling that entails massive social costs. Studies show that in India, although the prevalence of gambling was low, the proportion of people who had developed problem gambling among those who did gamble was considerably higher as compared to other countries. The final argument against legalization is that, even if it were to be considered a good idea, in theory, the time for such a major policy change in India is not right, because India did not possess the infrastructure to conceive, implement, monitor, or regulate such a huge change.

Suggestions

Certain suggestions could be considered in the light of the given circumstances. First, because of India’s inherent diversity, changes should be piloted in one or few states instead of going for pan India legislations so as to evaluate the post and pre-policy changes along with avoiding the deleterious and incongruous effects. Second, sufficient research needs to be undertaken so as to generate the local and relevant empirical pieces of evidence vis a vis the Indian sub context instead of relying on foreign pieces of evidence. Third, the question of government or private ownership of gambling monopoly needs to be delved upon. Fourth, the safeguard mechanism for the stakeholders needs to be put in place along with relevant and requisite standardized norms for regulation.

Conclusion

Keeping gambling under the scope of criminal legislation in spite of its nonviolent nature has been a source of contention amidst the scholars who view this as a step to give legitimacy to State paternalism. Section 30 of the Indian Contracts Act 1872 renders such betting (wagering) agreements voidable and takes off the recourse of legal enforceability, thus, exemplifying its vulnerability to financial exploitation and illegitimate transactions. Now in recent times, with a drastic surge in online gambling, the IT Act, falls short to curb people from engrossing in illegitimate offshore gambling websites where there is the absence of the protective blanket of national laws.

Thus, the archaic legislation of 1867 and the present laws being incompetent, abruptly fail to regulate the ongoing inconsistencies pertaining to betting. Further, nonchalance concerning the present penal provisions and the recklessness of the stakeholders exacerbate the administrative incapacities and ineffective framework of government. Against this backdrop, the vociferous and the reverberating calls for newer legislations assume more significance given the nebulous state of gambling laws in the country.

Given the pros and cons of the current issue at hand, there is no unambiguous evidence to support the status quo. Although the legalization would bring with it a gush of entailing benefits, the profound and the pressing issues at hand pertaining to legalization are required to be given a thorough perusal including the pricking need to overhaul enforcement mechanism rather than venturing into the question of how and when to legalize the gambling.

References

1. The Public Gambling Act, 1867. http:// www.sangrurpolice.in
2. 1996 AIR 1153, https://indiankanoon.org/doc/1248365/
3. https://www.scams.info/online-casino/india/#laws
4. Law Commission of India. Legal framework: Gambling and sports betting including in cricket in India. Report number 276. New Delhi: Law Commission of India, 2018.
5. http://timesofindia.indiatimes.com/business/india-business/Goa-casinos-contribute-Rs-135cr-revenue-in-2012-13/articleshow/19524670.cms

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

INTRODUCTION

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

CAUSE OF ACTION, SECTION 20, CPC

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

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

PURPOSE OF ORDER 7 RULE 11 OF CPC

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

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

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

CASE LAWS

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

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

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

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

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

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

OBSERVATIONS

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

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

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

CONCLUSION

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

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

Citations:

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

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

Introduction

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

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

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

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

Fake News Prohibition Bill, 2019

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

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

Objectives of the Bill

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

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

Fake News in India

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

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

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

Provisions of different laws in India

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

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

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

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

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

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

Curbing Fake News within Jurisprudence

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

Concluding Observations

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

References:

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

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

INTRODUCTION

One of the main changes in India’s overall set of laws is the Insolvency and Bankruptcy Code. This is on the grounds that the IBC does not just make India more grounded as far as the lawful structure, yet it additionally gives it another financial character and acknowledgment on an overall scale. If a disagreement emerges concerning bankruptcy, the debtor and the creditor have the authority to commence insolvency procedures against each other under the IBC, which is a combined study of numerous legal committees. With the President of India’s consent, the Insolvency, and bankruptcy Code 2016 became effective on May 28, 2016. Before that, there were long cycles that didn’t impressively offer a financially functional arrangement anyway as of now, this code is a one-stop reply for settling liquidations. To give a single guideline to Insolvency and Bankruptcy related issues, the Indian Insolvency framework went through a complete upgrade blending a couple of past guidelines (merging of 13 existing laws).

INSOLVENCY & BANKRUPTCY CODE, 2013

Meaning – Insolvency generally occurs when a person is unable to pay their debts to the creditor at the expected time frame. Bankruptcy, on the other hand, occurs when a court of competent jurisdiction declares a person or a business insolvent and issues necessary instructions to rectify the situation and safeguard creditors’ interests. Bankruptcy is a legal process by which an insolvent borrower seeks relief from his or her creditors.

Evolution – A statute was passed in 1828 that marked the commencement of insolvency-related law in India. In 1848, the Indian Insolvency Act established a division between traders and non-traders. There was no legislation dealing with insolvencies in non-presidency districts until 1907. The new Companies Act was approved in 2013, making several modifications to the corporate insolvency procedure.¹ Chapter XIX of the Firms Act of 2013 dealt with the resurrection and rehabilitation of ill companies. This chapter has been removed since the IB Code now covers the full revival/rehabilitation method or mechanism. The Insolvency and Bankruptcy Code, 2016 consists of 255 sections (divided into 5 parts) and 11 schedules. At this point, the IBC is the main regulation that oversees indebtedness, insolvency, and the recreation of failed organizations, reducing the job of earlier regulations.

FUNCTIONS & PROVISIONS OF IBC, 2016

The 2016 Code lays out a period-restricted strategy for settling indebtedness. At the point when a debt holder defaults on an installment, loan bosses hold onto responsibility for the debt holder’s resources and have 180 days to settle the indebtedness. To guarantee that the goal cycle chugs along as expected, the Code awards debt holders’ resistance from banks’ goal claims during this time. The Code likewise unites components from existing regulation to give a solitary scene to borrowers and lenders, all things considered, to address bankruptcy.

The IBC, 2016, specifies a Rs 1 crore least boundary for starting the pre-packaged bankruptcy goal strategy. It considers the excusal of simultaneous bankruptcy goal process and pre-packaged indebtedness goal process petitions documented against a similar corporate borrower. Punishment for starting a pre-packaged liquidation goal strategy deceitfully or malignantly to misdirect others, as well concerning the fake organization of the corporate indebted person during the cycle. Offenses including the pre-staging insolvency goal strategy are culpable.

RELATION OF NCLT WITH IBC

In contrast to concerns expressed during the IBC’s creation and later talks regarding the difficulty of quickly installing adjudicating capability, the NCLT is capable of fulfilling the job of adjudication under the IBC. While the NCLT’s present operation has defied expectations from previous insolvency cases, there are clear gaps between how the NCLT operates under the IBC and what is intended by the statute.² The empirical investigation on whether the NCLT is able to provide judgments within the timeframes required by law, as well as if the judgments are consistent with the function envisioned by the legislation, reveals that there exist gaps. From an adjudicating authority for the Insolvency redressal process of companies and individuals to the power prescribed to NCLT, it can be said that NCLT plays the most important role under IBC. It provides simplicity for financial creditors, operational creditors, and corporations to collect money from debtors.

PROCESS OF INSOLVENCY RESOLUTION

Corporate Insolvency Resolution: During the resolution of Corporate Insolvency, the creditor should record an application with the NCLT for starting bankruptcy redressal procedures. The NCLT will be expected to either acknowledge or dismiss the application within 14 days of documenting the application. When the application has been acknowledged by the NCLT, the administration of the indebted person is suspended and the transitional power, selected by the NCLT and alluded to as the ‘break indebtedness goal proficient’ assumes control over the administration of the corporate debt holder. Further, as soon the application for CIRP is conceded by the NCLT, a ban produces results on the corporate indebted person, which forbids the continuation or commencement of any legal actions against the debt holder, the exchange of its resources, or the requirement of any security interest. Within 30 days of the NCLT admitting the application for CIRP, the interim resolution expert reviews the creditors’ claims and forms the creditors’ committee. The panel of loan bosses then, at that point, names a free individual as the goal proficient, alluded to as the Insolvency Resolution Professional (‘IRP’) to assume control over the administration of the corporate borrower for the rest of the CIRP. Within 180 days of the commencement of the CIRP, the IRP is expected to draw up a goal plan for the restoration of the corporate borrower. Such an arrangement should be supported by lenders holding no less than 75% of the obligation of the corporate account holder.³

CASE LAWS – IBC

In Aditya Enterprises vs Rajratan Exim Pvt. Ltd.⁴, due to the non-payment of a debt owed to them by a corporate debtor, Aditya Enterprises applied. The adjudicating body stated that just receiving a loan cannot be considered an operational/financial obligation; nevertheless, the purpose of the loan is equally significant. Because the receipt makes no indication of the corporate debtor taking the loan for commercial purposes. The presence of a disagreement does not preclude the occurrence of a default; there is no indication that a due date exists.

In Sree Metaliks Limited and another V. UOI and Anr.⁵, The petitioner had challenged Section 7 of the 2016 Insolvency and Bankruptcy Code, as well as the provisions governing it, in the 2016 Law of Insolvency and Bankruptcy (Application to the Adjudicating Authority). In a petition lodged under section 7 of the IBC, the petitioner contended that IBC 2016 did not provide any chances to hear from a corporate debtor. The Calcutta High Court stated that the necessity for NCLT and NCLAT to follow natural justice principles may be found in Section 7(4) of the Code and Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. It was decided that the NCLT must provide the financial debtor a reasonable chance to present his or her case before admitting the petition filed under Section 7 of the Code.

In Bank of Baroda V.Rotomac Global Pvt. Ltd and Rotomac Exports Pvt Ltd⁶ The COC was suggested by the resolution professional for a 90-day extension of the CIRP. The COC, on the other hand, voted against it. As a result, the RP filed for the corporate debtor’s liquidation. The Competent authority held that the resolution to extend CIRP failed because no resolution plan was submitted within 180 days of the program’s start. As a result, the liquidation of a corporate debtor was acknowledged.

CONCLUDING OBSERVATIONS

Since the inception of the Insolvency and Bankruptcy Code in 2016, the issues relating to creditors and debtors have vastly improved. It has recognized the competent authority for the implementation of more efficient laws since the existing insolvency legislation does not demonstrate reliability due to issues such as delays in appointment and permissions, stock of non-performing assets, and so on. It needs to strengthen the process by attracting a broader variety of strategic purchasers who are prepared to bid on assets and present resolution plans following the code. It can also improve by putting in place more and more effective Asset Reconstruction Companies to help with dispute settlement.

References:

1. https://housing.com/news/ibc-insolvency-and-bankruptcy-code/
2. https://journalsofindia.com/nclat-ibc-and-companies-act/#:~:text=Its%20role%20under%20IBC%3A%20NCLT%20is%20the%20adjudicating,or%20operation%20creditors%20or%20the%20corporate%20debtor%20itself.
3. https://gamechangerlaw.com/ibc-2016-overview-of-the-insolvency-and-bankruptcy-code-2016/
4. https://indiankanoon.org/doc/33528420/
5. https://indiankanoon.org/doc/164560992/
6. https://www.soolegal.com/rc/bank-of-baroda-vs-rotomac-global-pvt-ltd-and-roromac-exports-pvt-ltd-cp-no-ib-70-ald-2017-with-ca-no-74-2018-

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

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

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

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

Right to travel internationally

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

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

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

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

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

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

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

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

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

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

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

Introduction

India, a country with many ideologies, religions, dialects, castes, and topography, represents unity and integrity. However, when it comes to the Varna System, which divides Indians into Brahmins, Kshatriyas, Vaishyas, and Shudras, there is no such unity displayed (Scheduled Casts, Scheduled Tribe, and Other Backward Communities, the most oppressed ones). As a result, the founders of the Indian Constitution established the principle of the reservation to ensure that every citizen’s social, political, educational, and economic rights and dignity be protected equally.

Current Position

In India, the caste system is profoundly founded in certain theological and social views that are highly conservative, and it has eventually estranged countrymen while categorizing ethnic and minority groups. This socioeconomic marginalization stems from the nebulous and nonsensical Principle of Purity and Pollution, which states that the lower castes are mostly linked with harmful vocations and are hence stigmatized by the society’s mainstream population. The Scheduled Castes (SC), Scheduled Tribes (ST), and Other Backward Classes now make up more than half of the country’s population (OBC). Since the dawn of time, the Indian civilization has recognized significant social, educational, and economic disparities among its citizens. Though there was no caste-based divide in Vedic civilization, the rise of Brahminical culture in the Indian subcontinent brought with it the active form of class and caste structure.

The Constitutional provision of reservation

Article 14
Article 14 emphasizes two points: equality before the law and equal protection under the law. Article 14 imposes a duty on the state for the benefit of all people living in India’s territory. As a result, residents are not the only ones who gain from Article 14. Every natural or artificial person, whether a citizen or an immigrant, is entitled to the protections afforded by this article. The reality, on the other hand, frequently paints a different picture.

Article 15(4)
“Nothing in this article or clause (2) of Article 29 shall prevent the state from making any provision for the advancement of any socially and educationally backward classes of citizen or the Scheduled Castes and the Scheduled Tribe.” Such “special provision” as are permissible under clause (4) of Article 15 must, However, those specific provisions are for the progress of persons who fall into those categories, and thus they are not for the advancement of those who are not covered by this clause. Even clause (4) of Articles 15 and 16 cannot be applied to all the vague purposes of the reservation. In the State of M.P v Mohan Singh the Supreme Court verdict that though prisoners were from the backward class they will be equally liable for punishment as of other prisoners as they have broken the law.

Article 16(4B)
“Nothing in this article shall prevent the State from considering any unfilled vacancies of the year which is reserved for being filled up in that year following any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered
together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty percent reservation on the total number of vacancies of that year”.

The 50% Rule
In Indra Sawhney vs Union Of India, 1992, the court covered caste-based reservation, ruling that “No reservation or preference provision may be sought with such eagerness as to demolish the fundamental notion of equality.” The Janata Party administration established the Second Backward Groups Commission, or Mandal Commission, in 1979 to identify India’s socially and educationally backward classes. Its chairman is Bihar MP Bindheshwar Mandal. At the time, India had established reservations for Dalits and Adivasis. The Mandal Commission’s report, published in 1980, proposed that quotas be provided to the Other Backward Classes, a large group of castes that fundamentally fulfill the caste system’s “shudra” label. The report was kept in cold storage after Congress regained power shortly after it was filed. Another non-Congress administration, this time led by VP Singh, took a decade to implement the Mandal Commission’s recommendations, sparking widespread protests and the Indra Sawhney case in the Supreme Court.

The concept of ‘Creamy Layer’:
The Supreme Court of India gave birth to the concept of a “Creamy Layer” because the Indian Constitution does not provide for it. It generally refers to that backward caste be it SC, ST, OBC, or even any unreserved one who may be regarded as untouchables or not got enough land, money to live a healthy life and their children will not be able to get the reservation. For the first time, the term creamy layer got introduced by the Sattanathan Commission in 1971 which reported that the “creamy layer” should be exempted from the OBC reservation of civil services, and with that, the “creamy layer” principle has been laid down by Supreme Court for the exclusion of the advanced sections of the backward class groups for reservation. However, it ultimately divided society into backward and forward classes.

Concluding Remarks & Suggestions:

The constitution’s framers aspired to create a casteless and classless society. They wanted to uplift the underprivileged and provide them with a decent existence by concentrating on their job, education, and social standing. In a nutshell, the principle of the reserve was ingrained in the foundations of Equity and Justice. However, over time, the whole thing went off the rails. As a result of evaluating different aspects of the government’s reserve policy covered under Articles 15 and 16, certain flaws in reservation policies have been identified. The authors’ humble proposals for eliminating such shortcomings and achieving the desired aims of reservation policy is as follows:

Despite the government’s haste in implementing the 10% quota for Economically Weaker Sections in the unreserved category, it is past time for it to rethink its strategy on defining poverty levels and ensure that all poor and needy individuals are included.

Above all, the authors argue that it is past time to focus on the fundamental difficulty that the Reservation Laws face, which is nothing more than a defective system for implementing or enforcing the laws or policies that have been enacted. The true beneficiary is poor in information, which is a major worry right now.

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

Abstract – The historical foundations of Indian experiences and conceptions of property and wealth are considerably different from those of Western countries. The current property system, as we know it, sprang from unique events in Europe throughout the 17th and 18th centuries, and hence its lessons were not generally applicable. The concept of property rights is another economic sector where the solution is both complex and crucial. The author attempts to determine the motivation behind this unfortunate move.

INTRODUCTION

Property rights are not recognized as basic rights in the Indian Constitution. The 44th amendment, passed in 1977, made the right to acquire, keep, and dispose of property no longer a basic right. However, Article 300 (A) was added to another section of the Constitution to state that no one’s property may be taken away unless by law. As a result, the basic right to property has been replaced with a statutory right to property.

Article 19 (1) (f)
By providing an absolute basic right to property, the Indian constitution endeavored to reconcile the right to property with the right to recompense for its acquisition, balancing it with reasonable restrictions, and adding a further fundamental right of compensation if the properties are acquired by the state. Article 19(1) (f), which was balanced by Article 19(5) and the compensation article in Article 31, demonstrated this. When the state discovered that an absolute right to property and people’s ambitions were not the same, the legislature was obliged to change the constitution to make the aforementioned right to property subject to social welfare.

DOCTRINE OF EMINENT DOMAIN

This theory allows a sovereign to purchase private land for public use if the utility of the land can be shown beyond a reasonable doubt. In the current setting, this concept resurrects the age-old conflict over state authority vs. individual rights. Here comes the DID (Growth Induced Displacement), which refers to the forcible removal of communities from their homes, often from their ancestral lands, for the sake of economic development, and is considered a violation
of human rights on an international level.

Essential elements of this Doctrine:

• A piece of property is seized for public use.
• The seized property has been compensated.

As indicated above, the deleted Article 31 imposed two constraints on Eminent Domain power.

SUPREME COURT’S APPROACH TO THE RIGHT TO PROPERTY

The approach of the Supreme Court regarding the right to property may be separated into two phases:-

1. The time till the right to property was a fundamental right (pre-1978)
2. The time after the conversion of the right to property as a constitutional right (post-1978)

Right to Property as Fundamental Right
During this time, the Supreme Court went out of its way to oppose the right to property and the right to accumulate wealth, as well as to hold that, concerning Article 39, the distribution of material resources to better serve the common good and the restriction on wealth concentration, the right to property and the right to accumulate wealth were unconstitutional. The judiciary, on the other hand, is in charge of taming the socialist state’s abuses of the right to property and wealth. During the Liberalisation period, the Supreme Court endeavored to reinterpret the rules
that safeguard the right to property to make the protection genuine rather than illusory and to reduce the claim of wealth distribution.

However, this has been a piecemeal approach, and much more has to be done to restore the constitution’s original balance. This indicates that property acquisition is not just temporal but must also adhere to spiritual rules. Indian ideas understand that while the property can be enjoyed that has not been gained exactly according to the law, it cannot be termed the person’s true property.

Right to Property as Constitutional Right
The backlash against Articles 19 (1) (f) and Article 31 of the Constitution as Fundamental Rights began almost immediately after it was enacted in 1950. Thus, times have changed drastically in recent years. India is no longer viewed solely from the perspective of socialist politicians. It’s India Shining as viewed through the eyes of financial behemoths like the Tatas, Ambanis, and Mahindras, who have an inexplicable passion for capitalism, money, and markets. There’s another point of view. Industrialists and developers are vying for land across the country to establish Special Economic Zones.

Previously, the Supreme Court had defined some basic and unchangeable parameters and features of the Indian state and constitution, such as the country’s democratic form of government, as its basic structure, which could not be changed even by constitutional amendment, in the famous Kesavanand Bharti case of 1973. However, in his decision, Justice H.R. Khanna made a brief remark to the effect that citizens’ fundamental rights may not constitute a fundamental component of the Constitution.

Flaws in the 44th Amendment Act
The amendment was passed without considering the following disadvantages:
a. The close relationship between property and other fundamental rights, which the Janata Party promised to restore;
b. The impact of this change on the legislative power to acquire and requisition property;
and
c. The relationship between state policy directive principles and fundamental rights.

Implications
a. The Right to Property would no longer be a Fundamental Right, but rather a Constitutional Right. Only the High Courts, not the Supreme Court, can now question the legislation that infringes the fundamental right to property.
b. With the repeal of Article 31, the government was no longer obligated to recompense anyone whose land had been taken under the authority of a statute enacted by Parliament.

As of now, it is beyond the scope of my research and understanding to determine whether Proposition (ii), i.e. property deprivation without compensation, is still legally tenable, especially in light of the Supreme Court’s ruling in the Maneka Gandhi case, which stated that every provision of the Constitution must be explained in a fair, just, and reasonable manner. As a result, any law that deprives a person of his property must do so in an explainable manner. It may be claimed that the only legitimate way to deprive someone of their property is to provide them with appropriate recompense. This debate, however, is not entirely relevant to the topic of this article.

CONCLUSION

Personal rights such as the ability to vote, freedom of expression, and personal liberty were once regarded to have a greater position in the hierarchy of values than the right to property. As an outcome, judges are expected to strike down legislation that infringes fundamental rights than those that infringed property rights. However, courts of law have determined that the distinction between the two is illusory and that no one appears to have given any consideration to why property rights are not personal rights. In 1972, the Supreme Court of the United States, which had priorly provided a warm welcome to the difference between property and personal rights and accorded the former a preferred status, laid to rest both the difference and the preferred status of so-called personal liberties or rights by announcing that the dichotomy between property liberties and personal rights is a false one.

Whether the property in conflict is a home, a welfare check, or a savings account, the right to enjoy property without illegal deprivation is an aspect of a personal right, just like the right to travel or the freedom to speak. In reality, the human right to liberty and the personal right to property are fundamentally intertwined. Without the other, neither could have significance.

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

Introduction

In Arjun Pandit Rao v. Kailash Kushanrao, the Supreme Court held that electronic recordings require a certificate under Section 65B (4) of the Evidence Act (“Act”) to be accepted. The certificate acts as verification of the identity of an electronic record and contains information on any equipment used in its creation. It is signed by someone in a position of responsibility for the operation of the relevant device or the management of the relevant activities.

Background

In the same case, in July 2019, a Supreme Court Division Bench forwarded the question to a bigger bench. As a result, the Supreme Court merged the case, which was an appeal against a Bombay High Court decision, in order to determine the correct legal situation in the aftermath of its two contradicting judgments. The Respondents challenged Arjun Panditrao Khotkar, the Returned Candidate (“Appellant”), election to the Maharashtra Legislative Assembly for the November 2014 session in the Bombay High Court. One election petition was submitted by lost candidate Kailash Kishanrao Gorantyal (“Respondent”), while the other was filed by Chaudhary, an elector. Based on video camera footage, the Respondents argued that the election was null and void due to a delay in the presentation of nomination forms. The Bombay High Court accepted the electronic evidence notwithstanding the lack of a Certificate because the party was in “substantial compliance” with the applicable regulations and declared the election unlawful.

The issue of providing the Certificate under Section 65B (4) has been before the Supreme Court on several occasions. In Anvar PV v. PK Basheer (2014), the Supreme Court held that any documentary evidence in the form of an electronic record can only be shown using the method described in Section 65B of the Act. The admissibility of electronic records in determining the validity or dependability of evidence is addressed in Section 65B, which is mandatory. Later, in Shafhi Mohammad v. State of Himachal Pradesh, a Supreme Court Division Bench held that the requirement of a certificate under Section 65 B (4) is procedural and can be waived in the interest of justice if a party does not have one.

Issues

The Supreme Court was faced with two major questions in the present case.

1. Establishing the validity of the Appellant’s election.
2. To settle the position of law relating to providing of Certificate for electronic evidence under Section 65B of the Act due to its inconsistent rulings on the issue

Judgment

The Supreme Court upheld the appealed decision because the Bombay High Court made its decision based on other evidence besides the electronic record data. The Supreme Court ruled that before electronic evidence can be accepted, a Certificate under Section 65B is required,5 upholding the decision in Anvar P.V. and overruling the ‘clarification’ in Shafhi Mohammed. Furthermore, the Supreme Court overruled the Madras High Court’s decision in K. Ramajyam, which held that evidence could be provided in place of the Certificate by a person in charge of a computer device. The Supreme Court also overturned the Tomasa Bruno ruling, finding that Sections 65A and 65B are merely clarifying and procedural in nature and cannot be deemed a comprehensive regulation on the subject. It further indicated that a certificate necessary under Section 65B is not always required. Section 65B (1), according to the Supreme Court, distinguishes between I the original electronic record contained in the computer in which the original information is first stored, and (ii) the computer output containing such information, which may then be treated as evidence of the contents of the ‘original document.’ When it comes to categorizing evidence, this distinction is recognized in legal terms. The Supreme Court clarified that a certificate is not required if the ‘original document’ is produced (as primary evidence). The owner of a laptop computer, computer tablet, or even a mobile phone might do so by going into the witness box and establishing that the concerned device, on which the original information is first saved, is owned and/or operated by him. In all other cases, where the “computer” is part of a “computer system” or “computer network,” and physically bringing such a system or network to the Court is impossible, the only way to provide information contained in such an electronic record is to use Section 65B (1) in conjunction with the production of the required Certificate.

The Supreme Court also considered whether a party is unable to present a certificate if they do not have access to an electronic device. In light of the Evidence Act, the Code of Civil Procedure, and the Code of Criminal Procedure, the Supreme Court held that a court has sufficient power and jurisdiction to require the production of any document. If the certificate is not granted, a request for its manufacture might be submitted. It is indicated that a party has completed his legal obligations in order to get the Certificate.

The maxims lex non cogit ad impossibilia, which states that “the law does not demand the impossible,” and impotentia excusat legem, which states that “where there is a disability that makes it impossible to observe the law, the alleged disobedience of the law is forgiven,” were taken into consideration by the Court. The Supreme Court highlighted other cases where this maxim had been applied in similar legal situations. Electronic evidence must be submitted no later than the start of the trial, according to the Supreme Court. However, a judge’s use of discretion in allowing evidence to be filed at a later date in a criminal trial should not cause the accused serious or irrevocable damage.

Similarly, if the accused desires to provide the requisite Certificate, the facts of the case and the Court’s discretion in accordance with the law will be considered. If a trial is still going on, the appropriate certificate can be issued at any moment so that material from an electronic record can be accepted and used in court. The Supreme Court also ordered cellular companies and internet service providers to keep CDRs and other relevant records in a separate and secure manner for the relevant period (in accordance with Section 39 of the Act) if a specific CDR or other record is seized during an investigation during that period.

This is intended to be used in all criminal cases. This will allow the parties to call for such records during the defense evidence stage or if data is needed to cross-examine a specific witness.

The Supreme Court also highlighted a five-judge panel’s report from 2018 proposing Draft Rules for the Reception, Retrieval, Authentication, and Preservation of Electronic Records. In order to provide advice to courts on how to preserve and safeguard electronic evidence, the Court believes that these Draft Rules should be made mandatory. Furthermore, the Bench held that, in order to prevent corruption, appropriate rules for the retention of data used in criminal trials, their segregation, chain of custody, stamping, and record maintenance, as well as for the preservation of metadata, should be framed under Section 67C of the Information Technology Act for the duration of trials and appeals. Justice V. Rama Subramanian agreed with Justice Nariman’s conclusions in his opinion, concluding, among other things, that a re-examination of Section 65 (B) of the Act is urgently required.

Analysis

The Supreme Court’s ruling puts an end to the discussion over the meaning and interpretation of Section 65 (B) of the Act, as well as the issue of certificates for electronic data production in court. Directions to cellular companies and internet service providers to preserve records that can be summoned if necessary are clearly an enabling feature that will ensure that a party can access and rely on evidence to establish their claims. The Supreme Court confirmed the distinction between primary and secondary evidence in the case of electronic documents. A bright-line rule may not work as effectively for electronic records as it does for paper ones. It is unclear whether the legislature will revise Section 65B in its current session.

References

Admissibility of Electronic Records (natlawreview.com)

Written by Vidushi Joshi student at UPES, Dehradun.

CASE NUMBER

Appeal No. 273 of 1979

CITATIONS

AIR 1980 SC 898, 1980 CriLJ 636, 1982 (1) SCALE 713, (1980) 2 SCC 684, 1983 1 SCR 145

BENCH

Y Chandrachud, A Gupta, N Untwalia, P Bhagwati, R Sarkaria

DECIDED ON

9 MAY, 1980.

This reference to the Constitution Bench raises a question in regard to the constitutional validity of the death penalty for murder provided in Section 302, Penal Code, and the sentencing procedure embodied in Sub-section (3) of Section 354 of the CrPC, 1973.

FACTS OF THE CASE

Bachan Singh had been convicted of his wife’s murder and sentenced to life in jail under Section 302 of the Indian Penal Code in the previous case. After serving his term, he was released and spent about six months with his cousin Hukam Singh and his family. Hukam Singh’s family members, including his wife and kid, questioned the appellant’s presence at his apartment.

The family went to bed after dinner on the night of the crime, July 4, 1977. When Vidya Bai (daughter) was woken by the alarm about midnight, she witnessed the appellant inflicting axe blows on the face of her sister, Veeran Bai. When she tried to stop him, the appellant struck her in the face and ear with the axe, knocking her out. Diwan Singh awoke from his rest after hearing the shriek and witnessed the appellant attack Desa Singh with the axe.

The Sessions Court later found the appellant guilty of murdering three individuals, including Hukam Singh’s son, Desa Singh, Durga Bai, and Veeran Bai (Hukam Singh’s daughters), as well as injuring Vidya Bai (Hukam Singh’s other daughter). On appeal, the High Court upheld the death sentence given by the Trial Court. In addition, both the Trial Court and the High Court ruled that Vidya Bai’s injuries were inhumane.

Bachan Singh then sought a special leave to appeal in the Supreme Court, raising the issue of whether “special reasons” exist in the facts of the case, which are required for the death penalty to be imposed under Section 354(3) of the Code of Criminal Procedure.

ISSUES RAISED

• Whether or not Section 302 of the Indian Penal Code’s provision for the death penalty for murder was unconstitutional?
• Is Article 19 relevant in establishing the validity of Section 302 of the IPC’s challenged provision?
• Is Section 302 of the IPC’s disputed limb in violation of Article 21 of the Constitution?
• Is Section 354(3) of the Criminal Procedure Code, which governs sentencing, unconstitutional on the grounds that it gives the Court unguided and unrestricted discretion and allows the death penalty to be imposed arbitrarily on a person found guilty of murder or any other capital offence punishable under the Indian Penal Code if the answer to the preceding question is no?

DECISION OF THE COURT

The Supreme Court dismissed the constitutional objections to Sections 302 of the Indian Penal Code and 354(3) of the Criminal Procedure Code. The Court went on to say that the six essential rights protected by Article 19(1) aren’t absolute. For starters, they are subject to limitations imposed by an individual’s commitment not to exercise their rights in a way that harms or infringes on the rights of other members of society. This is founded on the maxim sic utere tuo ut alienum non laedas, which states that an individual must use their property in a way that does not infringe on another person’s legal rights.

Another question is whether the courts have unfettered discretion in inflicting the death penalty, as well as the nature and scope of the specific reasons. Section 354(3) of the CrPC defines “special reasons” as “extraordinary causes related to the serious nature of the offence.” In granting the death punishment, the Supreme Court established the theory of the “rarest of the rare circumstances.” For individuals convicted of murder, life imprisonment is the norm, with the death penalty being an exception. It would be unusual to use discretion under Section 354(3) of the CrPC, 1973. Only offences that shook society’s collective conscience would receive the death punishment. Only in the rarest of circumstances should the death penalty be used.

This is written by Dalima Pushkarna student at Dr Ram Manohar Lohiya National Law University, Lucknow.