iPleaders https://blog.ipleaders.in/ Law is for everyone Mon, 18 Mar 2024 14:19:11 +0000 en-US hourly 1 https://wordpress.org/?v=6.2.4 Fast track arbitration https://blog.ipleaders.in/fast-track-arbitrtaion/ https://blog.ipleaders.in/fast-track-arbitrtaion/#comments Mon, 18 Mar 2024 14:19:08 +0000 https://blog.ipleaders.in/?p=23309 In this article, Pallavi Tiwari discusses Fast Track Arbitration Proceedings. It is further updated by Sakshi Kuthari. This article deals with a detailed explanation of Section 29B of the Arbitration and Conciliation Act, 1996, its essential features and procedure. This article has been published by Shashwat Kaushik. Introduction  Fast Track Arbitration was introduced in India […]

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In this article, Pallavi Tiwari discusses Fast Track Arbitration Proceedings. It is further updated by Sakshi Kuthari. This article deals with a detailed explanation of Section 29B of the Arbitration and Conciliation Act, 1996, its essential features and procedure.

This article has been published by Shashwat Kaushik.

Introduction 

Fast Track Arbitration was introduced in India by the Arbitration and Conciliation Amendment Act 2015. Just like the Arbitration and Conciliation Act, 1996 was an improvement on the Arbitration Act of 1940, so is the Amendment of 2015. After 1996 there have been major changes to the kinds of business, manner of doing the business, overseas investment in India, etc. The legislative intent was to make the business environment simpler and expedite the process of arbitration for a quick and transparent dispute resolution system. Initially, the International Chambers of Commerce came up with this idea and has been using it in a number of cases, imbibing it in Article 30 and Annexure V of the Rules. In India, the concept of fast track arbitration is defined in Section 29B of the Arbitration and Conciliation (Amendment) Act, 2015 (for the sake of brevity hereinafter referred to as the ‘Amendment Act, 2015’. It is a procedure which allows the arbitration parties to enter into an agreement and agree in writing to resolve their disputes within a period of 6 months from the date the Arbitral Tribunal enters upon the reference and there is no provision for oral proceedings, instead written pleadings suffice the matter. 

Essential features of fast track arbitration

  1. It is majorly governed by strict time limit policies which have to be complied with by both the arbitrators and the parties. Basically, it means to accelerate the arbitral proceedings and resolve the matter by the shortest deadline possible.  
  2. If the time limit is not followed then the mandate of the arbitrator shall terminate, unless the court has extended the time period. If while extending the period the Court finds out that the delay has been caused without any substantial reasons, then there is a reduction of fees of the arbitrator by not exceeding five -per cent for each month of the delay. This punishment procedure has been mentioned under Section 15 of the Arbitration and Conciliation Act, 1996.
  3. It does not provide a fixed set of elements or procedures to be followed as done in ordinary arbitral proceedings, mentioned in the following head,  any practice which helps in resolving the issue as soon as possible is accepted under fast track arbitration.
  4. Mostly in Fast Track Procedures for Arbitration, no oral proceedings are required and only written submissions are relied upon.
  5. The parties can appoint a sole arbitrator and the submissions majorly have to be written.
  6. It protects the cost, speed and time without infringing any law and sometimes procedures like the examination of a witness are also avoided.

How does fast track arbitration proceedings differ from normal arbitration proceedings

  1. The first difference is about the presence of three arbitrators in ordinary arbitral proceedings. Under Section 11(3) of the Arbitration and Conciliation Act, 1996 each party appoints one arbitrator, and then these two appointed arbitrators appoint the third arbitrator, who acts as a presiding arbitrator. Whereas, the fast track arbitration provides for a sole arbitrator appointed by the parties for the arbitration tribunal under Section 29B(2) of the Act.
  2. For an ordinary arbitral award, Section 29A(1) of the Act provides that the award shall be made within a period of twelve months from the date the arbitral tribunal enters upon the reference. If the award is made within a period of six months from the date the arbitral tribunal enters upon the reference, the arbitral tribunal shall be entitled to receive such amount of additional fees as the parties may agree. The time period can be exceeded but not more than six months. Under Section 29B(4) for fast track arbitration, the award under this section shall be made within a period of six months from the date the arbitral tribunal enters upon the reference. If the award is not passed within the specified period then the provisions of Section 29A shall apply here also, i.e. ordinary arbitral proceedings.
  3. In a fast-track proceeding under section 29B(6), the fees payable to the arbitrator and the manner of payment of the fees shall be such as may be agreed between the arbitrator and the parties. Whereas in ordinary proceedings according to Section 11(14),  the rules for the payment of costs to the arbitral tribunal, shall be determined by the High Court, as the rates are provided in the Fourth Schedule of the Act.
  4. For an ordinary arbitral proceeding, whether to hold an oral proceeding or have awards passed on the basis of documents shall be decided by the arbitral tribunal. Under Section 24 it is provided that an oral hearing can be allowed by the tribunal at a particular stage when the party requests it. Under section 29B for fast track procedures, written submissions are relied upon for proceedings and no oral proceeding is appreciated unless requested by the party.

Laws regulating fast track arbitration proceedings in India

In India, the concept of fast track arbitration came up with the recommendations of 246th Law Commission Report on 5th August 2014, which referred to a number of cases to provide the benefits of a speedy proceeding. Following this, came up the Amendment Act of 2015, where section 29B of the Arbitration and Conciliation Act, 1996 with the addition of amendments, talked about the procedure involved for fast track arbitration. Section 29B talks about the procedure involved and the rules to be followed for fast track arbitration. The Hon’ble Supreme Court in Board of Control for Cricket in India V. Kochi Cricket Private Limited(2018) held that the provisions of Section 29B of the said Act could only be made applicable to the arbitration proceedings commenced after the Amendment of 2015, i.e. 23rd October, 2015.

Further, the Indian Council for Arbitration Rules of Domestic Commercial Arbitration under Rule 44 discuss the fast track procedure where the Parties may opt for Fast Track Arbitration and request the arbitral tribunal, before the commencement of the arbitration proceedings, to decide the issue in a fixed time frame of 3 to 6 months. Here the arbitral tribunal can decide the issue only on the basis of written pleading without any oral hearing and can also call for clarifications. An oral hearing may be held if both parties make a joint request or if the Arbitration tribunal considers an oral hearing necessary in any particular case, and the tribunal shall hear it with all measures to proceed with it expeditiously.

When to apply for fast track arbitration

Under Section 29B of the Arbitration and Conciliation (Amendment) Act, 2015 people who are parties to an arbitration agreement can apply for fast-track arbitration in two ways :

  1. before the appointment of an arbitration tribunal by the parties,
  2. or at the time of the appointment of an arbitration tribunal by the parties.

This has to be submitted in writing by the parties that they want to be governed by the fast-track procedure.

      3. They shall also agree for the sole arbitrator to be chosen by them for the tribunal.

The cornerstone of fast track arbitration is giving the parties to the case the sole autonomy to decide for their arbitrators. This is done to prevent the parties from dilatory tactics, lack of caution and hindrances that may arise at the time of appointment of arbitrator and enforcement of award. 

Procedure for fast track arbitration proceedings

The parties shall agree with each other to solve the issue through fast-track procedure by the following rules as laid down under Section 29B of the Act of 2015 –

  1. The dispute shall be decided on the basis of written pleading, with the use of documents, and submissions provided by the parties and there shall be a sole arbitrator depending on the interest of the parties and relying on his skill and efficiency.
  2. There shall be no oral hearing.
  3. The tribunal can ask the parties for any other information or any kind of clarification to be provided to help in the matter of resolving the issue.
  4. There is a provision for an oral hearing if the parties request the tribunal or if the tribunal considers it necessary to resolve the issues.
  5. With the use of technical formalities, the tribunal shall resolve such issues and do whatsoever is required for a speedy disposal of the case.
  6. The award shall be given within six months from the date the tribunal starts taking notice of the case and if such award is not passed within the time prescribed then the procedure for extension of time provided under 29A is followed.
  7. If the award could not be given in the prescribed time period for fast track arbitration which is six months, an extension period of six months is provided. This extension period is provided under Section 29A of the Act as ordinarily provided for normal arbitral proceedings. The authority of the arbitrator shall terminate if before the lapsing of the six month time period the Court has not extended the period.
  8. If the proceedings have been delayed due to the error of the arbitral tribunal and thereby an extension is required the Court can order for the reduction of fees to be given to the arbitrator.
  9. While extending the period, the Court can substitute the arbitrator and is such a thing happens the proceedings shall continue from the stage it has already reached, and the arbitrator shall be deemed to have the knowledge of the evidence and material already presented.
  10. The fees to be paid to the arbitrator shall be fixed between the parties and the arbitrator.

Documents-only arbitration procedures

Arbitration proceedings allow the parties to the agreement to choose a procedure most suitable to their circumstances in order to achieve the quickest and most cost-effective resolution to their disputes. One such procedure is the ‘Document-only Arbitration’, which mostly applies to mid-to-low value disputes, such as domain-name disputes, intellectual property rights disputes, consumer disputes, etc. and also to large and complex arbitrations. Even though the arbitrators have the discretion to give directions relating to the procedure of a particular case, they may not have the authority to impose document-only arbitration procedures on the parties. It is because mostly the national laws of a country and their rules specifically provide that each party has a right to be heard unless the parties waive their right to be heard. If the arbitrators are of the opinion that a dispute could be resolved on the basis of documentation alone, rather than imposing it on the parties, it is advisable to invite the parties to agree to proceed on that basis. Thus, the document-only procedure connotes that the tribunals base their decisions solely on the written submissions and documentary evidence only and leave no opportunity to hear from the counsel or take evidence from witnesses at oral hearings.

The International Arbitration Practice Guidelines provide that the following steps should be followed by an arbitrator when considering whether to give directions for documents-only arbitration procedures.

  1. Arbitrators should proceed on the basis of taking into account all or some of the issues in the arbitration, subject to the applicable arbitration rules and the law of the place of arbitration.
  2. If a party to the arbitration requests for a document-only procedure, the arbitrators look into the issues involved, consult the other party and seek their consent before proceeding.
  3. During this procedure, the arbitrators direct the parties as to the steps involved to decide the issues involved, subject to that procedure on documents alone. 
  4. The just, fair and reasonable principles of equity should be followed by the arbitrators to give both parties an equal opportunity to present their case in relation to the issues involved, subject to the document-only procedure.
  5. The parties to the case have the discretion to choose the arbitration procedure until it is contrary to the mandatory laws and public policy. In the absence of the parties’ disagreement and the procedure not being inappropriate, the arbitrators are bound to respect the parties’ agreement. In this case, they have the discretion to organise the procedure they consider appropriate.
  6. In case the parties to the case agree to the arbitrator’s suggestion, the arbitrators record the parties’ agreement. If any party does not agree to the suggestion, they continue to proceed with the initial terms of the arbitration agreement. The arbitrators may opt to resign taking into account all surrounding circumstances of the case at any stage of the proceedings,  if the parties make them agree to unreasonable adjudicatory standards. The resignation of the arbitrators may raise their personal liability depending on the arbitration agreement involving their appointment and the law applicable in the place of arbitration.
  7. This procedure is effective for the speedy disposal of cases and for reducing the cost of arbitration procedures.
  8. The factors taken into account when determining whether some or all of the issues are suitable for resolution by a document-only procedure are the nature of the case, complexity of the issues, time and cost involved, nature of evidence and arguments adduced by the parties.
  9. For the purpose of deciding to adopt by document-only procedure, the arbitrators should give detailed directions to the parties which they need to take and by what dates. It enables the arbitrators to get the submissions and evidence (in the form of the draft) necessary to decide the issues by a specified date, subject to the document-only procedure.
  10. If the arbitrators are of the opinion that the document-only procedure is appropriate, they should include draft directions and seek the agreement of all parties. If the parties so agree, then the arbitrators record the agreement and the fact that the parties have waived their right to be heard in respect of some or all of the issues involved in the arbitration. The procedural order of the arbitrators should define the issues on which the parties have agreed to waive their right to be heard.
  11. If a party refuses to waive a right to be heard, the arbitrators focus in advance by means of procedural order on the scope of the hearing to identify the crucial issues to be addressed to save time and cost of the hearing.
  12. The arbitrators’ directions should deal with the matters of disclosure necessary, as to the scope and extent of documents to be produced, and the timing and manner in which they are to be produced at the time of the proceedings.
  13. If it has been agreed by the parties to the agreement that all or some of the issues would be conducted on the document-only procedure, it would be appropriate for the arbitrators to conduct an inspection of, for example, a site, a property, etc. They can give directions to this effect and indicate how it is to be organised, who is to be present and what will occur during the inspection.
  14. Subject to the mandatory rules and prevailing practice at the place of arbitration, it is the duty of the arbitrators to treat parties to the case equally and give them a reasonable opportunity to present their case, prepare their submissions and respond to the submissions made by the opposing parties.
  15. The submissions and evidence of the parties to the case are reviewed by the arbitrators to check the authenticity and enable them to decide the dispute or issues in the documents themselves. If the arbitrators are not satisfied with the submissions or the evidence submitted by the parties, they invite the party(s) to make further submissions and/or to submit further evidence in writing to address the specific issues within a reasonable time.
  16. If the parties had earlier agreed to waive off their right to be heard and during the document-only arbitration proceeding, one or more parties requests for hearing, the arbitrator should consider if there is a change in the nature of the issues in the disputes, the circumstances or the evidence that needs to be adduced that leads them to conclude that whether or not to have a hearing. If the arbitrators find the contentions of the party(s) to hear the proceeding reasonable, the arbitrators along with the consent of the other parties seek their agreement to the hearing.
  17. If none of the parties to the agreement have requested a hearing and consent only for the document-only procedure and the arbitrators find it necessary to have a hearing, the arbitrators should explain sufficient appropriate reasons to the parties and seek their agreement to the hearing. If the parties do not consent to it, the arbitrators shall continue to proceed on the basis of a document-only procedure as earlier agreed upon at the time of formation of the arbitration agreement.
  18. When the arbitrators draft an award relating to document-only procedure, they should record the parties’ agreement to that procedure and the procedural steps which were followed in order to avoid the risk of the award being challenged. 

Conclusion

Section 29B of the Arbitration and Conciliation Act, 1996 was inserted by way of Section 15 of the Arbitration and Conciliation (Amendment) Act, 2015. Sub-section (1) of Section 29B of the said Act provides that the parties to an arbitration agreement may resolve their dispute by fast-track procedure at any stage either before or at the time of appointment of the arbitral tribunal. Section 29B(2) of the said Act provides that without oral hearing the parties to the suit may resolve their disputes unless agreed to the contrary by the parties or the arbitral tribunal. The dispute needs to be resolved within a period of six months, i.e., the award should be granted from the date from which the tribunal enters upon the reference. Section 29B(4) provides for a “document-only arbitration procedure”. The loophole which this subsection holds is that it does not provide a monetary threshold which mandates the implementation of a fast-track procedure. With the passage of time, the Amendment of 2015 noticed the difficulties in the implementation of the said Act and Section 29B was amongst one of them. There was continuous interference of the court in the arbitration proceedings which contributed to the delay in disposing proceedings.

Even though Section 29B was inserted to facilitate speedy disposal of disputes, Section 29B (1) does not provide for opting for a fast-track procedure after pleadings are completed, i.e., after a claim, defence, counterclaim, or set-off. Paragraph 6(vii) of the Statement of Objects and Reasons of the 2015 Bill was introduced to provide parties to the dispute at any stage to resolve their dispute through fast track procedure. However, in the application, Section 29B is restricted only up to the stage of the constitution of the arbitral tribunal and not thereafter. Section 19(2) of the Act provides that while conducting the arbitral proceeding the parties to an arbitration agreement can determine and agree upon the procedure to be followed, failing which the arbitral tribunal can decide to conduct the proceedings as it may consider appropriate. On the contrary, considering the non-obstante clause of Section 29B(1), it would be appropriate to amend this provision to conclude that the parties to the arbitration agreement may “at any stage up to the completion of the pleadings and before the commencement of oral evidence” may conduct the arbitration by following a fast track procedure. 

There is a mandate under Section 23(3) of the Arbitration Act to complete the statement of claim and defence within six months from the date on which the arbitrator(s) receives a written notice of their appointment. Section 29B(4) can be amended to clarify that if after the completion of pleadings, the parties to the arbitration agree to a fast-track procedure, the award shall be passed three months from the date of completion of pleadings.

Frequently Asked Questions(FAQs)

What are the essentials of an Arbitration Agreement?

Section 7 of the Arbitration and Conciliation Act, 1996 provides that the parties must –

  • agree to the agreement in the same sense, i.e., consensus-ad-idem;
  • the agreement must be in writing;
  • the agreement must refer to a present or future difference to arbitration.

What is the limitation for filing a claim before an arbitrator?

Section 11(6) of the Arbitration Act, 1996 provides for the appointment of an arbitrator which prescribes no time period for filing for an application.

Who cannot be appointed as an arbitrator?

According to Section 12(5) of the Arbitration and Conciliation Act, 1996 read along with the Seventh Schedule, any person who has a relationship with the parties or counsel or the subject matter of the dispute is ineligible to be appointed as an arbitrator.

When and how can an arbitral award be enforced?

Section 36 of the Arbitration and Conciliation Act, 1996 provides that if the time of making an application has expired under Section 34 of the said Act, or the application having been made on time has been refused, then the award shall be enforced under Civil Procedure Code, 1908 in the same manner as if it were a decree of the Court.

When can an arbitral award be set aside by the court?

Section 34(2) (a) and (b) of the Arbitration and Conciliation Act, 1996 provides that the arbitral award can be set aside by the court, if the party proves any of the following –

  • Incapacity of the party;
  • Arbitration agreement is void, i.e., not in accordance with the law to which the parties to the agreement are subjected;
  • No proper notice of proceedings is given to any of the parties to the proceedings;
  • No proper notice of appointment of arbitrator is given to any party to the proceedings;
  • The award has been suspended or waived off by the competent authority in which it was made;
  • The issue cannot be resolved by arbitration under Indian law;
  • The composition of the arbitral tribunal is not in accordance with the agreement of the parties;
  • Enforcement of the award is against Indian public policy.

Section 13 of the said Act also provides that an arbitration award can be set aside when an arbitrator lacks independence or qualification or neutrality.

When can the jurisdiction of an arbitrator be challenged?

Section 12(3) of the Arbitration and Conciliation Act, 1996 provides that when the question of independence or impartiality comes into question then the jurisdiction of an arbitrator can be challenged.

What procedure is followed by an arbitral tribunal to decide a case?

Section 18 of the Arbitration and Conciliation Act, 1996 provides that the parties to the case shall be treated equally and should be given full opportunity to present the case. The arbitral tribunal is expected to observe the principles of natural justice and if they fail to do so the court may set aside the judgement. In this way, the tribunals perform their functions honestly and fairly.

References

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Section 448 IPC punishment   https://blog.ipleaders.in/section-448-ipc-punishment/ https://blog.ipleaders.in/section-448-ipc-punishment/#respond Mon, 18 Mar 2024 11:00:00 +0000 https://blog.ipleaders.in/?p=120262 This article has been written by Yashfeen Khan. This article explains house trespass, the essentials of house trespass, its punishment, and its aggravated forms under various circumstances. It further elaborates on the concept of criminal trespass, different types of criminal trespass, its punishment, and important judgements defining what constitutes house trespass. This article has been […]

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This article has been written by Yashfeen Khan. This article explains house trespass, the essentials of house trespass, its punishment, and its aggravated forms under various circumstances. It further elaborates on the concept of criminal trespass, different types of criminal trespass, its punishment, and important judgements defining what constitutes house trespass.

This article has been published by Shashwat Kaushik.

Introduction

Suppose you are playing a cricket match on your street road and the ball hits the window of your neighbour, and the window is now broken. What will happen now? Does this amount to trespass?

Everyone has the right to enjoy their property freely without the interference of any other person. And also, we know that where there is a right, there is a remedy, either in the form of statute or duty, imposed upon another person. The remedy for this right is provided in the Indian Penal Code, 1860.

If any of your acts interfere with another’s peaceful enjoyment of property, either movable or immovable, such acts amount to trespass. If trespass is committed without criminal intention, it is dealt with under the law of torts. But if trespass is committed with the criminal intention to cause harm to anyone, then it is criminal trespass.

What is trespass

According to Black’s Law Dictionary, trespass means injury or misfeasance caused to a person, property, or rights of another person with force or violence. In the strictest sense, an entry on another’s ground is caused without lawful authority by damaging his real property, i.e., land or immovable property. Interfering with another’s land without his permission or without having a right to do so would result in trespass.

Trespass can be committed without actual entry into the property. Interference can be made with another’s property without actually entering into it. Suppose a person A throws a stone at B’s house without actually entering the house, but with the intention to annoy A. This would result in committing trespass.

The offence of trespass cannot be committed if the person alleged of trespass has a right or authority to enter on such property. Trespass can only be committed if the person entering does not have the right or authority to enter a property. Also, the person complaining about trespass should also have actual possession of such property.

Trespass is both a civil and criminal wrong

Trespass means an unapproved entry into the property possessed by someone else. Trespass is both a civil and criminal wrong, depending on the intention and magnitude of the loss that occurred. If an intruder unlawfully enters the property and causes damage, then it is regarded as civil wrong under tort, and tortious liability arises, but if he enters with the intention to commit an offence, then it is regarded as a crime, and criminal liability arises. 

Damages are payable if tortious liability arises, whereas in cases of criminal liability, he shall be held liable under the Indian Penal Code, 1860 (hereinafter referred to as the IPC).

Criminal trespass

According to Section 441 of the IPC, criminal trespass is committed if the accused unlawfully enters or, if lawfully entered, remains there unlawfully intending to commit an offence or to intimidate, insult, or annoy any person in possession of such property. It is not necessary that the annoyance resulting from trespass be instantaneous; it may be subsequent.  

Intimidate, in this definition, means to threaten someone; annoy means to irritate; and insult means treating someone disrespectfully. Anyone entering the house to threaten, irritate, or commit any act that brings disrespect to the person having possession of the house is committing criminal trespass and will be held liable for such an act.

Essentials of criminal trespass

To constitute trespass as criminal trespass, the following essential conditions must be fulfilled:

Unauthorised entry

In order to constitute an offence under this section, there must be an actual unlawful entry upon the property possessed by someone else. If ‘A’ throws the trash at B’s house regularly, ‘A’ may be held liable for committing nuisance but not trespass, as ‘A’ did not enter the house. 

Entry is unlawful when it is made for an unlawful purpose. So, if ‘X’ enters Y’s house to harass ‘Y’ or any other person in Y’s house, he is said to have committed criminal trespass.  

Entry must be with the intention to commit an offence or to intimidate, annoy, or insult any person.

Intention is the main ingredient that constitutes a trespass as a criminal trespass. The intention behind committing criminal trespass can be assessed by examining the purpose behind such trespass. If there was no intention to annoy, intimidate, or insult anyone in possession, the offence of criminal trespass cannot be established. 

Property must be possessed by someone else

In order to constitute criminal trespass, there must be a property, either movable or immovable, upon which the intruder enters unlawfully, if he enters lawfully and remains there unlawfully. 

In Mathuri v. State of Punjab (1963), the Supreme Court held that in order to constitute an offence under house trespass, it is not sufficient merely that the intruder knows the natural consequence of his entry into the property; he must have the intention to commit an offence or to insult, intimidate, or annoy the person having possession.

Further, in Trilochan Singh v. The Director, Small Industries Service (1962), Madras High Court held that if writing love letters by a boy to a girl and delivering the same to her residence annoys an innocent girl, such a boy is held guilty of the offence of criminal trespass under Section 441 of the IPC. 

Punishment for criminal trespass 

Punishment for criminal trespass is provided under Section 447 of the IPC. A person who commits criminal trespass shall be punished with imprisonment for three months, or with a fine which may extend to five hundred rupees, or both. 

Different types of criminal trespass

Trespass can be classified as follows, depending on the magnitude and consequence of such trespass.

House trespass

According to Section 442 of the IPC, if any person commits criminal trespass by entering into any building, tent, or vessel used for residential purposes, a place of worship, or as a place to store things, they will be held liable for committing the house trespass.  

House trespass is an aggravated form of criminal trespass. House trespass is said to be committed if any person enters the house of another person having possession of the house while also threatening or intimidating to physically harm the occupant if they attempt to prevent the entry.

Lurking house trespass

According to Section 443 of the IPC, if anyone commits house trespass by taking the necessary precautions to keep that trespass hidden from the owner of such property and if the owner has the authority to expel the trespasser out of that building, a tent or vessel is said to have committed lurking house trespass. For a trespass to constitute a lurking house trespass, the trespass must be a house trespass, and the intruder must have taken measures to conceal such a trespass.

Punishment for lurking house trespass

Punishment for lurking house trespass is provided under Section 453 of the IPC. If any person is found guilty of committing housebreaking or lurking house-trespass, they shall be punished with imprisonment of two years and also with a fine.

Lurking house trespass by night

According to Section 444 of the IPC, if any person commits lurking house trespass between sunset and sunrise, they shall be held liable under this section. Lurking house trespass is an aggravated form of house trespass.

In Prem Bahadur Rai v. State of Sikkim (1977), the complainant and his wife were returning from the market during the night in the dark. They were followed by two unknown people up to their house. The earring of the wife of the complainant was robbed by some unknown person, who immediately ran away. Later, police arrested the accused and charged the accused with lurking house-trespass by night to commit theft under Section 457 of the IPC.

The Sikkim High Court in this case held that for a criminal trespass to constitute lurking house trespass, there must be an active concealment of his presence. His presence concealed by the darkness of night cannot justify the claim that the accused concealed his presence, which does not amount to lurking house trespass under Section 444. Due to the absence of reliable witnesses and evidence that can prove that the accused committed robbery, no charge could be proved. The court acquitted the accused. 

Punishment for lurking house trespass

Punishment for lurking house trespass or house breaking is defined under Section 456 of the IPC. Anyone committing lurking house trespass or housebreaking by night shall be punished with imprisonment of three years and also be liable with a fine.

Housebreaking

According to Section 445 of the IPC, any person who commits house trespass and enters into or leaves the house by affecting the entrance of the house or any part of the house in any of the following six ways, and if he stays in the house or in any part of the house for committing an offence, is said to commit housebreaking.

  • If the passage is made by the intruder or by any abettor to the house. For example, if any person makes a hole in the wall of the house to commit house trespass. 
  • If the intruder enters through any passage made by himself or abettor of the offence, not used as a human entrance like scaling or climbing over any wall or building. 
  • If the intruder uses a passage he opened or any abettor of the trespass has opened, that is not usually used by anyone. If a house has a door which is not used by any person and an intruder enters through such a door.
  • If the intruder enters the house by breaking any lock.
  • If the intruder uses criminal force, i.e., assault, for either his entry or departure. 
  • If the intruder himself unfastens or any abettor of the trespass unfastens anything tied to the entrance. 

Punishment for housebreaking

Punishment for housebreaking has been provided under Section 453 of the IPC. Any person who commits housebreaking or lurking house trespass shall be punished with imprisonment for two years and also be liable for a fine.     

Housebreaking by night

According to Section 446 of the IPC, any person who commits housebreaking between sunset and sunrise is said to have committed housebreaking by night.

Punishment for housebreaking by night

Any person who commits housebreaking between sunset and sunrise shall be punished under Section 456 of the IPC. A person shall be punished with imprisonment for three years or shall be held liable for a fine.

Lurking house trespass and housebreaking also be committed under various circumstances defined under various sections as follows:

  • Under Section 454 of the IPC, if lurking house trespass or housebreaking is committed with the intention to commit an offence punishable with imprisonment, the intruder shall be punished with imprisonment for three years and shall also be liable to a fine, and if the offence intended to be committed was theft, then with imprisonment for ten years. 
  • Under Section 455 of the IPC, if lurking house trespass or housebreaking is committed with preparation for causing hurt, assault, or wrongful restraint, or with the intention to put the other person in the fear of hurt or wrongful restraint, the person shall be punished with imprisonment for ten years and shall also be held liable for a fine.
  • Under Section 457 of the IPC, if lurking house trespass or housebreaking is committed by night and with the intention to commit an offence punishable with imprisonment, the offender shall be punished with imprisonment for five years, and if the offence intended was theft, imprisonment for fourteen years, and also shall be held liable with a fine. For the offence to be dealt under this section, the lurking house trespass or house breaking must be committed with the intention to commit an offence.

In In Re: Pullabhotla Chinniah v. Unknown (1917), it was held that breaking open a cattle shed that is used for agricultural purposes amounts to house breaking. 

In Nasiruddin v. State of Assam (1971), the accused broke open the front door of the house of a woman to abduct her, assaulted her husband, and attacked her son with deadly weapons. The accused was charged with Section 457 of the IPC.

The Supreme Court, in this case, held that for trespass to fall under this Section, trespass must be house breaking or lurking house trespass by night, i.e., housebreaking or house trespass committed by taking measures to conceal his presence at night, and must have been committed with the intention to commit an offence punishable with imprisonment. The accused broke into the house to abduct the woman, and hence they were held liable under this section.

Under Section 458 of the IPC, if lurking house trespass or housebreaking is committed at night with the preparation of causing hurt, assault, or wrongfully restraining any person or for putting the fear of the same, the person shall be punished with imprisonment for fourteen years and shall also be liable to a fine. 

Under Section 459 of the IPC, if any person, while committing lurking house trespass or housebreaking, causes grievous hurt or death to any person, he shall be punished with imprisonment for life, and if an intruder attempts to cause death or grievous hurt to any person, he shall be punished with imprisonment for ten years and shall be liable for a fine. This offence under this section is an aggravated form of offence defined under Section 453.

Under Section 460 of the IPC, if persons jointly commit lurking house trespass by night or housebreaking by night and one of them voluntarily causes or attempts to cause death or grievous hurt to anyone, all of them would be jointly liable for such offence and shall be punished with imprisonment for life, or with imprisonment for ten years, and also with a fine.

Under this section, the joint liability of the intruder is dealt with. If, during the commission of lurking house trespass by night or housebreaking by night, one of them causes or attempts to cause death or grievous hurt, all of them shall be punished for such an act. 

Understanding house trespass

A house is one of the basic amenities; therefore, there is a strong need to protect it. House trespass is a particular type and an aggravated form of criminal trespass. Trespass will be considered as a house trespass if any person, with the intention of committing an offence or to intimidate, annoy, or insult the person having possession of the building used for residential purposes, as a place of worship, or to store things, unlawfully enters such building, or if he enters there lawfully, remains there unlawfully. The person entering must have the intention to annoy, intimidate, or insult anyone having possession of the building. And entry by the person must be illegal. Such a person shall be held liable for house trespass. The building is defined as a structure used to protect the persons residing in it or for the property placed therein for custody or any place of worship. 

House trespass is different from various other offences of trespass such as house breaking, lurking house trespass in the sense of magnitude. House trespass is committed if any person enters unlawfully into the building, but for housebreaking the person must have paved his way into or upon the house, and for lurking house trespass, the person must have concealed his presence in the house. House trespass further may be differentiated depending upon the intention to commit such trespass, whether such trespass was committed with the intention to commit an offence punishable with death, imprisonment, life imprisonment, or to cause hurt and assault. 

For an offence of house trespass, there must be a building that may be used as a house. Further, apart from permanent residence, many buildings can be used for dwelling; in this sense, buildings such as shops, schools, and railway waiting rooms could also be used as human dwellings.

Aggravated forms of house trespass

There are different forms of house trespass, which vary based on the intent of the trespasser. They include:

House-trespass in order to commit an offence punishable with death

If house trespass is committed with the intention to commit an offence punishable with death, such trespass is dealt with under Section 449 of the IPC. A person committing such trespass shall be punished with imprisonment for life or with rigorous imprisonment for ten years, and also with a fine. For a person to be held liable under this section, he must have committed house trespass, and the intention of committing trespass must be to commit an offence punishable with death.

House-trespass in order to commit an offence punishable with imprisonment for life.

If any person commits house trespass with the intention to commit an offence punishable for imprisonment for life, such trespass is dealt with under Section 450 of the IPC. A person committing such trespass shall be punished with imprisonment for ten years and also with a fine. For a person to be held liable under this section, he must have committed house trespass, and the intention of committing such trespass must be to commit an offence punishable with imprisonment for life. 

House-trespass in order to commit an offence punishable with imprisonment

If any person commits house trespass with the intention to commit an offence punishable for imprisonment, such trespass is dealt with under Section 451 of the IPC. A person committing such trespass shall be punished with imprisonment for two years and also with a fine, and if the offence intended was theft, then the imprisonment may extend up to seven years. For a person to be held liable under this section, he must have committed house trespass, and the intention of committing such trespass must be an offence punishable with imprisonment. 

House-trespass after preparation for hurt, assault, or wrongful restraint

If any person commits house trespass with the preparation for causing hurt or assaulting any person, wrongfully restraining any person, or putting any person in the fear of hurt, assault and wrongful restraint shall be punished with imprisonment of seven years and shall be held liable with a fine. For a person to be held liable under this section, he must have committed house trespass, and the intention of committing such trespass must be to cause hurt, assault, or wrongful restraint.

Essentials of house trespass 

To constitute house trespass an offence liable under Section 448 IPC, the following essentials must be fulfilled:

Unlawful entry

In order to constitute the offence of house trespass, entry must be unlawful, or if lawful, the accused must be there unlawfully to insult, annoy, intimidate, or commit an offence. Trespass is the wrong against possession, not ownership. So the intruder must not have any explicit or implicit authority to enter the property. An actual unlawful entry needs to be there with the intention to commit an offence to constitute the entry as trespass. For example, if person A has locked a house in their possession and person B adds another lock to the premises without A’s consent, B would not be considered guilty of house trespass.

Possession

Possession is the essential element for the offence of house trespass. In order to commit the offence of house trespass, the intruder must not have possession of such a building. If he has possession of the building he is entering, an offence cannot be established. House-trespass is an offence against possession. Thus, where the complainant is not in actual possession of the building, there can be no offence of house-trespass. Any person entering the house having ownership of the house but not possession may be accused of having committed house trespass if he enters the house with the intentions mentioned in Section 442 of the IPC. A house trespass will be constituted only when the accused enters a house, etc.

A building used as a human dwelling need not be a place of permanent residence. A school is a building, although it is not used for residential purposes but may be used as a human dwelling within the contemplation of Section 442. Likewise, a railway platform is a building within the range of a dwelling house.

Intention

Intention, i.e., mens rea, is one of the major ingredients of trespass to constitute it a criminal offence. The intruder must enter with the intention of committing an offence. A test for the intention of trespass can be done by determining what the aim of entry was.

It is not enough that the intruder knows his entry would cause annoyance; rather, he must have the intention to annoy for him to be liable for the offence of criminal trespass.

In the case of Kanwal Sood v. Nawal Kishore (1982), Aranaya Kutir, owned by R. C. Sood, made a gift deed in favour of Anandamayee Sangha, with the stipulation that during his lifetime, his premises would be possessed by him, and after his death, his widow, if alive, would have possession. He invited the widow of his brother to reside on the premises. After his death, the secretary threatened to vacate the premises; if she did not leave the premises, a case for criminal trespass would be filed against her. The Supreme Court in this case held that mere entry to the property did not constitute criminal trespass. There must be criminal intention for the same. A mere occupation, even if illegal, cannot amount to criminal trespass.

In the case,  In Re: Chander Narain v. Faquharson (1879), ‘A’ shot a deer present in B’s land. ‘A’ went to B’s land to kill the deer. The Calcutta High Court in this case did not hold ‘A’ guilty of the offence of trespass, as the intention to commit a crime or to annoy the possessor could not be found. 

Property

There must be property into or upon which entry may be possible, and that property may be used as a human dwelling, either for permanent residence, as a place of worship, or to store things. There must be a building that may be used as a place of human dwelling, either permanently or temporarily. But the term property does include incorporeal property, e.g., the right to the fishery.  

In Mangaraj Barik v. State of Orissa (1982), the Orissa High Court held that a school is a building used as a human dwelling within the scope of Section 442. Further, in the State of Punjab v. Nihal Singh (2013), the Supreme Court held that a railway platform is a building within the range of a dwelling house.

Section 448 IPC punishment

Section 448 of the IPC provides the punishment for the crime of house trespass. If any person commits house trespass, he or she shall be punished with imprisonment for one year and also with a fine of 1000 rupees. 

Trespass is cognizable, bailable, and compoundable at the discretion of the person having possession of the house. The offence of house trespass is triable by a Magistrate. Trespass being a cognizable, bailable, and compoundable offence, the police officers in charge can arrest the intruder without a warrant after receiving a complaint from the victim. The parties to the case can compromise for the same at the discretion of the possessor of the house if the case is on trial in court.  

Degree of punishment for crime under Section 448 IPC 

According to Section 448 of the IPC, whoever commits house-trespass shall be punished with imprisonment of either description for a term which may extend to one year, or with a fine which may extend to one thousand rupees, or with both.

Depending on the nature and kind of trespass, punishment for each kind also varies. Punishment for criminal trespass is imprisonment for three months or a fine of five hundred rupees. House trespass, which is an aggravated form of criminal trespass, increases the punishment to imprisonment for one year and a fine of one thousand rupees. 

It can be said that as the gravity of the offence rises, the punishment for the offence also increases. Hence, the degree of punishment for house trespass depends upon the intention of committing house trespass, the nature of such trespass, and the means through which such trespass is committed.

Important case laws surrounding Section 448 IPC punishment 

Further, the magnitude of the offence of house trespass increases as the offence is committed with the intention of committing an offence punishable by death; the punishment for such trespass rises to rigorous imprisonment of 10 years. If anyone commits house trespass with the intention to commit an offence punishable with imprisonment for life, the punishment for such a person shall be imprisonment for 10 years and a fine. If any person commits house trespass with the intention of committing an offence punishable by imprisonment, they shall be punished with imprisonment for 2 years. If any person commits house trespass after preparation of causing hurt, assault, or wrongfully restraining any person, he or she shall be punished with imprisonment for 7 years and also with a fine.

Vidyadharan v. State of Kerala (2003)

Facts

In this case, the accused entered the house and the kitchen and tried to hold the hands of a woman. The complainant, who was married and had children, was busy cooking food. The accused took hold of her hands and tried the act of molestation. The woman tried to escape him by running to the next room and closing the door of the room, but failed as the accused opened the door forcibly. The case was filed under sections 448 and 354 of the IPC, Section 3(1)(xi) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989.

The session court held the accused guilty and convicted them for the same. The session court held that the offence under Section 3(1)(xi) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, is an aggravated form of an offence under Section 354 of the IPC; hence, no separate sentence was called for the latter offence. An appeal before the Kerala High Court was filed, but it did not bring any relief to the appellant. The High Court affirmed the conviction and the sentence.

An appeal was filed in the Supreme Court about the false implication of the case, and it was also submitted that the Session Court had no jurisdiction for the trial of the offence under Section 3(1)(xi) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. 

Issues in the case

  • Whether the accused has committed house trespass or not?
  • Whether the charges framed against the accused in Section 3(1)(xi) under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, are valid?

Observation of the court

The Supreme Court in this case held that to attract Section 448 of the IPC, the accused must have trespassed with the intention to intimidate, insult, or annoy the complainant. There must be an unlawful entry, and any intention for a criminal trespass under Section 441 must be fulfilled.

An offence under Section 3(1)(xi) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act,1989, is an aggravated form of an offence under Section 354 IPC. According to Section 14 of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act,1989, the Court of Session can act as a Special Court with the prior permission of the Chief Justice of the High Court for speedy trial of offences under this Act. 

In the instant case, the Supreme Court concluded that, according to Section 193 of the Code of Criminal Procedure, 1973, no Court of Session can take cognizance of an offence as a Court of original jurisdiction unless the case has been committed to it by the Magistrate.

Section 5 of the CrPC cannot aid as there is no provision in the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, which states that a special court can take cognizance as a court of original jurisdiction. Hence, it is concluded by the Supreme Court that the session judge did not have jurisdiction to try the offences related to Section 3(1)(xi) of the Act.

Judgement

Hence, the punishment imposed on the accused under Section 3(1)(xi) was set aside, leading to the release of the accused by the Supreme Court. This decision was made because the punishment prescribed under Sections 354 and 448 of the IPC, which amounted to three months of imprisonment, had already been served by the accused.

Kripal Singh v. Wazir Singh (2000)

Facts

In this case, the complainant had a shop where he used to assist the accused with work. The complainant occasionally used to visit his daughters, who were employed in Madhya Pradesh, leaving the work in the care of these workmen.

One day he went to Madhya Pradesh to meet his daughters, entrusting the shop and necessary instruments and tools to these hired workmen. He discovered that some of his tools and his bicycle were missing. When he questioned the accused about these losses, he received improper and unsatisfactory explanations. Following his inquiries about the missing tools and subsequent threats from the accused, he returned to the shop on another occasion. However, the accused insulted him and vehemently denied any association with the shop, threatening him with violence if he did not vacate the premises. The trial court in the instant case held that the complainant had the actual ownership and possession of the property all along, and the accused were employed by him as servants. The property was allotted to him by the Rehabilitation Department as a displaced person from Pakistan. So the court held the accused guilty of the offence under Sections 448 and 34 of the IPC and convicted the accused for the same.

The Additional Session Judge upheld the judgement given by the trial court. And released the accused on probation. 

Issues in the case

  • whether house trespass was committed by the accused?

Observation of the court

The complainant, in his revision petition filed before the Delhi High Court, complained about the release of the accused on probation, which led to the harassment of the complainant by the accused for almost four decades. In the meantime, the complainant did not receive a penny as rent or compensation. Despite being the owner of the shop, the complainant was deprived of possession and use of the shop.

The Delhi High Court held that even if the accused entry to the shop was lawful but he remained in the shop unlawfully, an offence of house trespass under Section 442 is committed continuously.  

Judgement

The Delhi High Court upheld the judgement of conviction of the accused and release on probation of the accused, directed for the restoration of possession to the complainant, i.e., the real owner of the shop. 

Satrughana Nag v. State of Odisha (2020)

Facts

In this case, the accused broke into the house of the victim, who was sleeping in his house. The bamboo door of her room was open. Her elder brother and his wife were sleeping next to his room. The accused broke into the house at night and tried to disrobe her saree in an attempt to rape her. After hearing the screams of the victim, her brother and his wife came to the room and assaulted the accused. A FIR was lodged against the accused under Section 457 of the IPC, and he was tried for the same.

The Additional Session Court held the accused guilty of the offences charged against him under Sections 366, 511, and 457 of the IPC, sentencing him to 3 years of punishment and one month of punishment for the respective charges. This further proceeding is an appeal filed before the Orissa High Court.  

Issues in the case

  • Whether the accused committed an offence under sections 366 and 511 of the IPC?
  •  Whether the accused is liable under Section 457 of the IPC?

Observation of the court

The court found variations in the statements given by the victim during the investigation and in the courtroom. The appellant’s counsel argued that there are certain improbable circumstances that are supported by the evidence of the case; rather than being a victim of rape, the victim could also be the consenting one for the intercourse. Since the victim was not medically examined, due to the absence of evidence and reliable witnesses, the offence of committing rape could not be established. It was held that mere entering of the house at night does not amount to lurking house trespass if such trespass has not been concealed, and it also does not amount to housebreaking if an intruder has not untied anything that was fastened. 

Judgement

The court held the accused liable under Section 448 for house trespass and punished him with imprisonment, which had already been undergone by him.

Conclusion

The right to peaceful enjoyment of property is a legal right and needs to be safeguarded. If any person unlawfully or lawfully enters a place with the intention to commit a crime or to insult, annoy, or intimidate any person having possession of such property, he is said to have committed criminal trespass. Further, if such trespass is against a human dwelling or place of worship, it is classified as house trespass and is punishable under Section 448 IPC. Criminal trespass has many aggravated forms, depending on the time and place of such trespass. Depending on the gravity of trespass, different types are classified under Sections 441- 462 of the IPC, attracting the punishment accordingly.

Frequently Asked Questions (FAQs)

Is house trespass bailable or non-bailable?

If a person is held guilty of an offence of trespass, he shall be subject to the punishment of imprisonment for one year and also with a fine. An offence of house trespass is a cognizable and bailable offence that could be tried by any magistrate and is also compoundable at the discretion of a person having possession of the property.

Is trespassing criminal or civil in India?

Trespass is unlawful interference with another’s peaceful enjoyment of property. Trespass is defined as a civil wrong under the law of tort, and damages are payable for any loss or injury suffered. Trespass, when committed with the intention to commit an offence or to intimidate, insult, or annoy any person having possession of the property trespassed upon, becomes criminal trespass and is dealt with under the Indian Penal Code. 

What is the difference between house trespass and housebreaking in IPC?

Criminal trespass is house trespass if an intruder with a criminal intention enters the property used for the protection of persons residing inside it, goods stored in it, or as a place of worship unlawfully, or if lawfully entered, remains there unlawfully. Housebreaking is an aggravated form of house trespass that is committed if the intruder breaks into the house or leaves by making an effect on the entrance or any part of the house. It is committed in the six ways mentioned in Section 445 of the IPC.

References   

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Legality of non-compete clause in employment contracts https://blog.ipleaders.in/legality-of-non-compete-clause-in-employment-contracts/ https://blog.ipleaders.in/legality-of-non-compete-clause-in-employment-contracts/#respond Sun, 17 Mar 2024 14:30:00 +0000 https://blog.ipleaders.in/?p=120256 This article has been written by Yadav Mahima Kaushal pursuing a Diploma in US Contract Drafting and Paralegal Studies course from LawSikho. This article has been edited and published by Shashwat Kaushik. Introduction In a world of competitive markets, every employer wants to protect their interests. A non-compete clause is a tool for protecting the […]

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This article has been written by Yadav Mahima Kaushal pursuing a Diploma in US Contract Drafting and Paralegal Studies course from LawSikho.

This article has been edited and published by Shashwat Kaushik.

Introduction

In a world of competitive markets, every employer wants to protect their interests. A non-compete clause is a tool for protecting the legitimate interests of the employer.

A non-compete clause is a clause in an employment contract that puts restrictions on the action of an employee from working for a competitor or starting a similar business or profession as the employer, either in the course of employment or after employment. In the latter, enforceability depends on various factors.

Non-compete clause is inserted in an employment contract to protect the employer’s legitimate business interests, such as trade secrets , confidential information, customer data, goodwill and market strategies. However, a non-compete clause is not always enforceable in a court of law. The enforceability of a non-compete clause depends on various factors, such as:

  • The reasonableness of the scope, duration, and geographic area of the restriction;
  • The balance between the employer’s interest and the employee’s right to earn a living;
  • The public interest and policy considerations; and
  • The existence of a valid consideration or compensation for the restriction.

History of a non-compete clause

In 1414, while hearing Dyer’s case law, English Common Law rejected the enforcement of non-compete agreements because of their nature. As it put restraint  on the trade, the non enforceability was  continued until 1621. After that restriction that was limited to a specific geographic location was allowed as an exception, the exception became the rule with the 1711 watershed case of Mitchel v. Reynolds, which established the modern framework for the analysis of the enforceability of non-compete agreements.

Historical perspective in the Indian context.

A strict approach by Indian courts towards the non-compete clause has been seen in the past. In most of the cases, honourable judges have refused to acknowledge the legality of non-compete clauses by citing Section 27 of the Indian Contract Act and also Article 19(1) (g) of  the Indian  Constitution.

Section 27 of the Indian Contract Act  1872 prohibits agreements that put  restrictions on  trade. Article 19(1)(g) gives every citizen of India freedom of trade and profession.

However, in the landmark case of Niranjan Shankar Golikar vs. The Century Spinning Company , the Court started acknowledging the non-compete clause by introducing the concept of ‘the rule of reasonableness’. The following factors need to be considered while applying this rule:

  • The duration of the restriction; 
  • The geographical scope;
  • The nature of the employee’s position;
  • The availability of alternative employment  opportunities.

What is a non-compete clause

A non-compete clause is a provision included in a contract between an employer and an employee that restricts the employee from engaging in certain activities after the termination of their employment. The purpose of a non-compete clause is to protect the employer’s legitimate business interests, such as confidential information, customer relationships, and trade secrets.

Key elements of a non-compete clause typically include:

  1. Scope of restrictions: The clause outlines the specific activities that the employee is prohibited from engaging in, such as working for a competitor, starting a competing business, or soliciting customers or employees of the former employer.
  2. Timeframe: The duration of the non-compete clause specifies the period during which the restrictions apply. It can range from a few months to several years.
  3. Geographic scope: The clause defines the geographic area where the restrictions are applicable. It can be limited to a specific city, region, or country.
  4. Reasonableness: Non-compete clauses must be reasonable in scope and duration to be legally enforceable. Courts will consider factors such as the employee’s position, the industry, and the potential harm to the employer to determine the reasonableness of the clause.

Pros and cons of a non-compete clause

Pros

The pros of the non-compete clause are:

  1. Protection of confidential information: Non-compete clauses help protect an employer’s confidential information, such as trade secrets, customer lists, and proprietary processes. By preventing former employees from working for competitors, businesses can reduce the risk of their confidential information being shared or misused, maintaining their competitive edge.
  2. Preservation of goodwill: Non-compete clauses help preserve a company’s goodwill by preventing former employees from soliciting or diverting clients or customers to competitors. This ensures that the employer’s investment in building customer relationships is protected, preserving the value of the business.
  3. Stability of workforce: Non-compete clauses contribute to the stability of the workforce by discouraging employees from leaving for competing companies. This helps maintain a productive and cohesive work environment, reducing the costs and disruptions associated with frequent turnover.
  4. Fair competition: Non-compete clauses promote fair competition in the marketplace by preventing former employees from immediately joining competitors and leveraging their knowledge to gain an unfair advantage. This ensures that businesses compete on their merits and not solely on the ability to hire away employees with valuable knowledge.
  5. Protection of investments in training and development: Non-compete clauses help protect a company’s investment in training and development by ensuring that former employees do not immediately benefit competitors with the skills and knowledge they acquired at the company’s expense. This encourages businesses to invest in employee development, enhancing the overall quality of the workforce.

Cons

The cons of the non-compete clause are:

  • It can limit your career opportunities: A non-compete clause can prevent you from working in your field of expertise for a certain period after leaving your current job. This can make it difficult to find new employment opportunities, especially if you are specialised in a particular industry or profession.
  • It can be unfair and restrictive: Non-compete clauses are often seen as unfair and restrictive by employees. They can prevent employees from pursuing new opportunities and stifle their career growth. This can be particularly problematic for employees who are laid off or terminated without cause.
  • It can be difficult to enforce: Non-compete clauses are often difficult to enforce, especially if the employee moves to a different state or country. This can make it costly and time-consuming for employers to pursue legal action against former employees who violate the clause.
  • It can damage relationships: Non-compete clauses can damage relationships between employers and employees. Employees may feel resentful towards their former employers for imposing such restrictions on their careers. This can lead to a loss of trust and cooperation in the workplace.
  • It can stifle innovation: Non-compete clauses can stifle innovation by preventing employees from sharing ideas and knowledge with other companies. This can lead to a lack of competition and a slower pace of innovation in the marketplace.

Overall, non-compete clauses can have a number of negative consequences for employees, employers, and the economy as a whole. They should be used sparingly and only when absolutely necessary.

Non-compete agreement  vs. non-disclosure agreement

A non-compete clause is part of an employment contract that is signed between employee and employer. A non-compete clause is a covenant clause, which means it puts some restriction on employees from engaging in similar types of employment or starting the same kind of business during the course of employment or after the termination of employment. Non-compete agreements are used to deter the employee from starting a similar business and becoming a direct competitor of the parent company , but they are not always enforceable in court.

A non-disclosure agreement is also known as a confidentiality agreement; it is a wider concept than the non-compete clause. Non-disclosure agreements can be made between employers, – employee, individual entities , business firms. It protects the confidential information of the parties to the agreement by creating an obligation on the parties  to protect the breach of confidential information, and it is enforceable in court.

Purpose of non-compete clauses

The purposes of non-compete clauses are:

Protection of secrets

Employers use non-compete clauses to protect valuable information and trade secrets of their businesses. During the course of  employment, employees often gain access to confidential data, client lists, business strategies, and proprietary knowledge. The clause prevents them from exploiting this sensitive information for competitive purposes.

Protects the interest of the employer

A non-compete clause helps the employer protect their interests by preventing a former employee from starting the same kind of business or accepting employment from the direct competitor of the employee.

Prevention of unfair competition

By restricting an employee’s ability to work for a competitor within a specified timeframe and geographic area, non-compete clauses aim to prevent unfair competition. This protects the company’s investment in training and development of its workforce, as well as its competitive advantage.

Constitutional safeguard

Article 19(1)(g) of the Constitution of India provides the right to practise any profession or to carry on any occupation, trade or business to all citizens, subject to Article 19(6), which enumerates the nature of restrictions that can be imposed by the state upon the above rights of the citizens. However, the non- compete clause is mutually agreed upon between the parties and it does not violate Article 19(1)(g).

Article 19 is available against the state – Many times, the apex court has mentioned that Article 19 is available against any state or body.

Non-compete clause under Indian Contract Act 1872

Section 27 of the Indian Contract Act, 1872 deals with agreements in restraint of trade. It states that every agreement by which any one is restrained from exercising his lawful profession, trade or business of any kind, is to that extent void. This provision is based on the principle that everyone has a right to earn a livelihood and any agreement that restricts this right is against public policy.

What constitutes a restraint of trade? A restraint of trade is any agreement that prevents or restricts a person from engaging in a lawful trade or business. It can be expressed or implied, and it can be either partial or complete.

Examples of express restraints of trade include:

  • Non-compete clauses: These clauses prevent employees from working for a competitor for a certain period of time after they leave their job.
  • Non-solicitation clauses: These clauses prevent employees from soliciting customers or employees from their former employer.
  • Exclusive dealing agreements: These agreements require a buyer to purchase all of its goods or services from a single supplier.

Examples of implied restraints of trade include:

  • Covenants not to compete: These covenants are implied in some contracts, such as partnership agreements, and they prevent partners from competing with each other after the partnership is dissolved.
  • Duty of loyalty: This duty requires employees to act in the best interests of their employer, and it can prevent them from engaging in activities that are harmful to the employer’s business.

When is a restraint of trade valid?

A restraint of trade is only valid if it is reasonable and necessary to protect the legitimate interests of the party who is seeking to enforce it. The following factors are considered when determining whether a restraint of trade is reasonable:

  • The nature of the trade or business: Some businesses are more likely to be harmed by a restraint of trade than others. For example, a restraint of trade that prevents a doctor from practising medicine is more likely to be considered unreasonable than a restraint of trade that prevents a salesperson from selling products for a competitor.
  • The duration of the restraint: A restraint of trade that lasts for a longer period of time is more likely to be considered unreasonable than a restraint of trade that lasts for a shorter period of time.
  • The geographic scope of the restraint: A restraint of trade that covers a large geographic area is more likely to be considered unreasonable than a restraint of trade that covers a small geographic area.
  • The impact of the restraint on the employee: A restraint of trade that prevents an employee from earning a livelihood is more likely to be considered unreasonable than a restraint of trade that does not have a significant impact on the employee’s ability to earn a living.

Consequences of an invalid restraint of trade

If a restraint of trade is found to be invalid, it is void and unenforceable. This means that the parties to the contract are not bound by the restraint and they can engage in the trade or business that was restricted by the restraint.

In addition, the party who was injured by the restraint of trade may be entitled to damages. The damages can include lost profits, loss of goodwill, and other expenses that were caused by the restraint of trade.

Legality of non-compete clause in employment contracts

According to Section 27 of the Indian Contract Act 1872, an agreement by which anyone is restrained from exercising a lawful profession, trade or business of any kind is, to an extent, void. This means that non-compete clauses are not legally enforceable in India, as they are considered to be in restraint of  trade and against Section 27 of the Indian Contract Act. However, there are some exceptions and circumstances where a non-compete clause may be valid and enforceable, such as:

  • During the term of employment, you may restrict the employee  from engaging in any activity that is directly or indirectly in competition with the employer’s legitimate interests.
  • After the termination of  employment, an employee may be restrained from using or disclosing any trade secrets, confidential information, or proprietary data of the employer, as long as the duration, scope, and geographical area of the restraint are reasonable and do not impose a question of livelihood on the  employee. The doctrine of “the rule of reasonableness” is applied by court to decide whether the restrictions are valid or not.
  • A non-compete clause may also be valid and enforceable if it is part of a sale of goodwill or a partnership agreement where the seller or the outgoing partner agrees not to carry on a similar business within a specified area and time in order to protect the buyer or the remaining partners from unfair competition.
  • The courts have the discretion to examine each case on its own merits and decide whether a non-compete clause is reasonable and necessary to protect the legitimate interests of the parties involved.

Case laws

Superintendence Company of India (P) Ltd. vs. Krishan Murgai (1980)

The case of Superintendence Company of India (P) Ltd. v. Krishan Murgai (1980) is a landmark case in the realm of non-compete clauses in India. In this pivotal judgement, the Supreme Court of India underscored the significance of upholding the delicate balance between an employer’s legitimate business interests and an employee’s fundamental right to pursue their chosen profession.

Central to the Court’s decision was the interpretation of Section 27 of the Indian Contract Act, 1872. This provision declares void any agreement that unreasonably restrains a person from exercising their lawful profession or trade. The Supreme Court examined the ambit and implications of the non-compete clause, highlighting its potential to stifle competition and hinder the employee’s freedom to engage in their chosen field. The Court held that such a clause was overly broad and went beyond what was reasonably necessary to protect the employer’s legitimate business interests.

This landmark judgement set a significant precedent, establishing the principle that non-compete clauses must be tailored to strike a fair balance between the employer’s need for protection and the employee’s right to pursue their livelihood.

Percept D’Mark (India) Pvt. Ltd. vs. Zaheer Khan & Anr (2006)

This is one of the recent cases involving the non-compete clause in India. The central issue in this case was whether the non-compete clause for the period of 3 years was valid under Section 27 of the Indian Contract Act of 1872. The Bombay High Court held that a non-compete clause that prevented a cricketer from endorsing any competing brands of the company for three years after the expiry of the contract was valid and enforceable, as it was reasonable and necessary to protect the company’s interest in the exclusivity of the endorsement.

Orchid Pharma Ltd.  vs. Hospira Healthcare Pvt. Ltd. (2019) 

This  is one of the first cases where the Competition Commission of India (CCI) expressed its views on the non-compete clause. The CCI observed that a non-compete clause should be reasonable in terms of the duration, the scope, and the geographical area of the restraint, so as to ensure that it does not result in an appreciable adverse effect on competition.

In Niranjan Shankar Golikari vs. The Century Spinning and Manufacturing Co. (1967)

In this case, the Supreme Court held that a negative covenant during the period of employment  when the employee is bound to serve his employer exclusively are not to be regarded as restaurant of trade and do not fall under Section 27 of Indian Contract Act

Conclusion

The governing body for non-compete clauses is Section 27 of the Indian Contract Act of 1872, which says that every agreement is void if it’s restraining someone from exercising a lawful profession, trade or business. However, non-compete clauses are mutually agreed upon and allowed in some exception cases. Therefore, it can be concluded that non-compete clauses require a balanced approach to save the interests of both the employer and employee.

References

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DK Basu vs. State of West Bengal (1997) : case analysis https://blog.ipleaders.in/dk-basu-vs-state-of-west-bengal-1997-case-analysis/ https://blog.ipleaders.in/dk-basu-vs-state-of-west-bengal-1997-case-analysis/#respond Sun, 17 Mar 2024 13:19:02 +0000 https://blog.ipleaders.in/?p=120248 This article is written by Kathakali Banerjee. This article gives a detailed analysis of the effect of the DK Basu Judgment. This article further elaborates on the definition of custodial violence, causes of custodial violence, types of custodial violence, background of the case, facts of the case, issues raised, contentions raised by both parties, the […]

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This article is written by Kathakali Banerjee. This article gives a detailed analysis of the effect of the DK Basu Judgment. This article further elaborates on the definition of custodial violence, causes of custodial violence, types of custodial violence, background of the case, facts of the case, issues raised, contentions raised by both parties, the rationale behind the judgement and aftermath of the case.

Introduction 

Police officers being a very important part of law enforcement have a duty to enforce laws and prevent crimes along with that. It is also the duty of the police officers to get hold of the law violators and present them before a magistrate for a fair trial. But for ages, we have seen that the policemen have misused the powers conferred upon them. We have seen innumerable custodial violence which has occurred due to the turning of protectors into perpetrators. Throughout the world, third-degree torture by police officers has always been a topic of great concern and debate. In this article, I endeavour to articulate how the Supreme Court of India has tried to curb custodial violence through its guidelines laid down in DK Basu Vs State of West Bengal (1997). It is considered to be a landmark judgement in criminal jurisprudence.

Causes of Custodial Violence 

Even though Section 25 of the Indian Evidence Act 1872 clearly says that confessions made in front of police officers do not hold any evidentiary value in the eyes of the law, police officers exert pressure on the prisoners either to solve cases quickly or for personal bias. Common problems that lead to custodial violence are-

  • Many police officers are totally unaware of the fact that confessions collected by them in custody do not have any validity in the eyes of law.
  • Many officers are not even properly trained to handle and interrogate the inmates properly. 
  • Certain psychological factors like stress, trauma and unchecked bias lead to this aggressive behaviour by the police officers.
  • Medical negligence and lack of proper medical treatment of ill inmates is another major reason for custodial deaths. Lack of proper administrative functions also makes the environment in which an inmate lives unhealthy. 

Types of Custodial Violence

Custodial violence can be broadly classified into three categories

  • Physical violence includes injuries inflicted on the body of an individual in custody by the police authorities
  • Psychological/Mental violence includes threatening and causing certain acts that would be detrimental to the mental health of the individual. With the passage of time, physical injuries heal to some effect, but these psychological harms make an individual incompetent to live the life of an ordinary person even after they are out of custody.
  • Sexual violence includes rape, sodomy or any kind of sexual assault caused on women by police authorities on an individual while he is in custody.

Background of DK Basu vs. State of West Bengal (1997)

Definition of custodial violence.

Custodial violence is  defined as, any violence including torture, death, or rape by police authorities on inmates while their stay in the judicial or police custody. Violence includes both physical and mental torture, and in many cases we have seen that it has resulted in the death of the individual. 

One of the very basic fundamentals of criminal justice jurisprudence is that a person is assumed to be innocent until he is proven guilty. But in most of the cases we have observed that as soon as a police officer gets hold of an individual on the basis of an FIR or complaint, inhumane harassment is inflicted on the person till the date of the judgement. Most of the time we have seen individuals who are not proven to be guilty at the end and get acquitted have suffered unnecessary harassment. Even though they become free to go back to their normal lives, the mental and physical harm they suffered while being in custody, keeps them haunting forever throughout their lives. Custodial violence is considered one of the worst crimes happening in a civilised society. 

Before the DK Basu case, the police could not be held liable for their misuse of powers in custody. The victims of custodial violence even though they were awarded compensation, there were no specific guidelines for that. In prominent cases like Rudul Shah vs. State of Bihar (1983), the convicted man was illegally detained for a time period more than his prescribed punishment. This case deals with illegal detention and is an important case relating to compensation in cases of unlawful detention. The court granted compensation to the sufferer, and it was held that the illegal detention of an individual amounts to an infringement of fundamental rights enshrined in our Constitution, especially Article 21. Even though the court granted compensation in the matter, they did not follow any proper guidelines for doing the same. 

Another prominent case in this field is Nilabati Behera vs. State of Orissa (1993) which deals with the custodial death of an individual alleged to have committed offence of theft. The judgement given in this case is established as a precedent for holding states liable in cases of custodial deaths. The Apex Court also awarded compensation to the mother of the victim but did not follow any proper guidelines for that. Even while deciding the above-mentioned cases, there were no proper guidelines for the police officers to follow while arresting and treating an individual in prison. A series of custodial deaths and the various decisions given in various judgements caused a lot of dissatisfaction in Indian society. Then came the DK Basu case in 1997, which is considered the most remarkable judgement on custodial violence and death.

Facts of DK Basu vs. State of West Bengal (1997)

The matter of custodial violence was brought before the court by Dr D.K. Basu, executive chairman of the Legal Aid Services of West Bengal to the Chief Justice of India through a letter. On 26th August 1986, Mr Basu posted this letter based on news of custodial violence given in a newspaper. He sent a letter to the then Chief Justice of India, Justice Ranganath Mishra after several deaths in 1986 and recommended that the Court should develop “custody jurisprudence” and formulate modes for awarding compensation. The CJI considered it as a matter of grave concern and treated it as a writ petition invoking the Court’s original jurisdiction under Article 131 of the Constitution of India. 

Another letter was followed from the Aligarh province detailing a death in police custody. The letter mentioned sending notices to all state governments and law commissions for suggestions. The Supreme Court considered both the letters addressed to it and appointed Mr Abhishek Manu Singhvi as the amicus curiae for assisting the court in addressing this issue of custodial violence. The Apex Court also took notice of the widespread allegations relating to custodial violence arising from different states, finally giving very important suggestions and guidelines.

Issues of the case

  • Whether custodial violence and death violate the right to life and personal liberty mentioned under Article 21 of our Constitution?
  • Is there a need for well-framed rules and guidelines to be followed by police officers while arresting?
  • Do prisoners have a right to life even while they are behind bars and does custodial death and violence constitute a violation of Article 21?
  • Can police officers be made liable for causing custodial violence?
  • On what basis compensation will be awarded to the victims?

Contentions raised by the petitioner

  • Excessive use of physical power by police officers on detainees to get confessions should be prevented. Use of third degree methods should be curbed.
  • Violence including rape and physical assault causes severe mental trauma to the detainees which extend beyond what the law tries to address. Causing violence leads to misutilisation of the powers conferred upon the police authorities.

Contentions raised by the respondent

  • Counsel representing different states asserted that everything relating to the concerned issue was already well established within their respective states. 
  • The state argued that there is no need for legal counsel at the time of arresting an individual.
  • The state emphasised that they were already framing steps to control the problem of custodial violence. 
  • The responsibility of the police officers in case of custodial violence was discussed. The state contended that action was initiated against the police who misused their power.

Argument raised in DK Basu vs. State of West Bengal (1997)

Presented by petitioners

The petitioners argued that there was a need to have proper guidelines to stop the violence in custody as it violated human rights. They also argued that the right to life and personal liberty enshrined under Article 21 of the Constitution of India. The prisoners even though arrested and are behind the bars have the fundamental right to live. It was also argued that the state should perform its duty to protect the rights of all individuals including those who are arrested and detained. If the state fails to perform its duty , it should be made vicariously liable for the wrongful acts of the police authorities. 

The petitioners highlighted the pathetic scenario of ill treatment that goes behind the bars.

Presented by respondents

The respondents on the other hand argued that there is necessity of these custodial procedures and it is necessary for proper enforcement of law and to prevent crimes. Imposing restrictions on the powers of the police authorities will cause hindrance on their part to properly implement the laws. It was also claimed that the conduct of the officers were presumed to be in accordance with the law until and unless proven otherwise. The various challenges faced by the law enforcement authorities like inadequate training, limited resources, pressure to solve a case within limited time were highlighted.

The respondents tried to justify their actions and practices in custody by emphasising the need for a number of procedures for law enforcement purposes.

Judgement in DK Basu vs. State of West Bengal (1997)

The judgement by the bench of Justice A.S. Anand and Justice Kuldip Singh was composed of two parts: establishing procedural safeguards and elaborating a system of compensation for victims of police abuse. The judgement emphasized the global effort against torture. It was also upheld that detainees have their fundamental rights protected, only legally permissible restrictions can be imposed on the enjoyment.  A number of important guidelines were laid to be followed by the police officers while arresting someone.

The following was observed by the Apex Court

  • Custodial violence including rape, torture and death in police custody infringes Article 21 of The Constitution of India as well as basic human rights.
  • Article 22(1) gives the right of the arrested persons to be informed about their grounds of arrest and the right to be defended by a legal practitioner of his choice. The court held that it also violated the fundamental right enshrined under Article 22(1) of The Indian Constitution.
  • Interrogation though essential must be conducted on scientific and humane principles: third-degree methods are totally impermissible.
  • Transparency and accountability in the police actions, while they are arresting an individual, should be there to check the abuse of police power.
  • Regarding compensation in cases of custodial violence by public servants, the State will also be vicariously liable for their act. The arrested persons also do have their rights which the police authorities must respect. 
  • Proper training including the way of arresting an individual and the treatment of that individual in custody should be given to the police officers before carrying out their arrest duties.

The guidelines given by the Apex Court in cases of arrest and detention

  1. The police officer who arrests a person should bear proper name tags and designations so that they can be easily identified. The particulars of the officers who will interrogate must be recorded in a register.
  2. An arrest memo should be prepared by the police officer carrying out the arrest. The memo shall also be attested by at least one witness including either a family member or a respectable person of the society from where the arrest is made.
  3. The person arrested will have the right to inform any of his close friends or relatives about his arrest as early as possible.
  4. Every detail regarding the arrest like the time, place of arrest and venue of custody of the arrestee must be notified by the police. Where the next friend or relative of the arrestee lives outside the district or town, they should also be informed within a period of 8 to 12 hours after the arrest through the legal aid organisation in the district and the police station of the area concerned telegraphically.
  5. An entry must be made in the diary at the place of detention regarding the arrest of the person as well as the particulars of the friend or relative who has the information about the arrest. The police officers under whose custody the arrestee is shall also be mentioned.
  6. On request, examination can be conducted on the arrestee and every detail regarding any major or minor injury on the body of the arrestee shall be recorded. The inspection memo must be signed by both the arrestee and the police officer affecting the arrest and its copy must be provided to the arrestee.
  7. Within 48 hours of detention, a medical examination should be performed on the arrestee by a trained doctor. The medical examination can also be performed by a doctor appointed by the Director of Health Services of the concerned state.
  8.  The arrestee may be permitted to meet his lawyer during interrogation though not throughout the interrogation.
  9. A police control room should be set up at all districts and state headquarters so as to collect information regarding the arrest and place of custody of the arrestee. The information shall be communicated by the officer causing the arrest within 12 hours of effecting the arrest and it should be displayed conspicuously on the notice board of the police control room.

The court mentioned forwarding the required guidelines to the Director General of Police and the Home Secretary of every State/Union Territory, and it shall be their duty to circulate the same to every police station under their charge and get the same notified at every police station at a conspicuous place. Broadcasting of the guidelines through All India Radio National Network of Doordarshan was suggested by the court so that the guidelines could reach the maximum number of people. Distribution of pamphlets in the local language was another method suggested by the Apex Court to spread awareness. 

The court also mentioned that if any officer does not follow the guidelines, then he will be liable for contempt of court. These conclusions tried to ensure accountability and transparency in police actions.

Effectiveness of DK Basu guidelines

If we properly study the number of custodial deaths, we will see a good decrease in the number of cases. But still, the graph keeps on fluctuating every year. 2019-20 saw a decrease in custodial violence and deaths as compared to the statistics of 2018-19. Again the graph showed an increase in the rate of violence and deaths in 2021-22. The guidelines do have brought changes in the scenario but proper implementation of certain guidelines is still required to eradicate this practice. Though awareness has been circulated to a great extent, but still traces of unawareness are quite profound at the grassroots level, especially in rural areas. Many cases even go unreported due to lack of proper enforcement. Resource plays an important role in the implementation of the guidelines, India being a poverty-stricken country is always scarce with money. These resource constraints lead to limited staffing and inadequate training facilities for the authorities.

Recent cases like Jayaraj and Bennicks Case (2020) have shown alleged police brutality on these two individuals while they were in custody for violating COVID-19 lockdown restrictions. These points out the loopholes which are present in the guidelines and are required to be overcome. DK Basu case guidelines have been effective to some extent in protecting the rights of the individuals in custody but still, there’s room for improvement.

Contribution of the 113th Law Commission Report

The 113th Law Commission’s Report focuses on the injuries suffered by individuals while in custody. This was presented after the observation of the Apex Court in State of UP vs Ram Sagar Yadav (1985)The law commission responded to the notice sent by the Apex Court by proposing the suggestions given by the 113th Law Commission Report. The incorporation of section 114B was suggested but unfortunately, it was not included in The Indian Evidence Act. With the introduction of the concept of presumptive liability for police authorities causing violence, the report had made the scope of future development impacting significantly the guidelines enunciated in the DK Basu case. Even the Apex Court has acknowledged the influence of the Law Commission’s recommendations on the guidelines.

Compensation for the families of the victims

Though the Supreme Court has stated that every state would be liable for any kind of violence in custody and adequate compensation is to be provided to them, the amount and procedure for compensation varies from state to state. Various judicial directives and legal mechanisms have been framed to deal with the compensation to be granted to the victim or his family members in case of violence in custody. The amount of compensation depends on the type and amount of injury suffered, the nature and extent of torture inflicted and other related factors. The compensation will also be based on the amount of funds required for the treatment of the injuries and rehabilitation of the victim. Other factors like the financial background of the victim will also be considered while compensating a victim of custodial violence. So the compensation varies from case to case and there is no straight jacket formulae to calculate the amount of compensation.

It’s a well-established fact that in most jurisdictions the pecuniary compensation is regarded as the best form of compensation. The State is held vicariously liable for the wrong acts committed by the public servants. We can say that the concept of strict liability is applicable here to which the defence of sovereign immunity is not available. The victim gets the right to revive the compensation from the state itself, but that shall be indemnified by the wrongdoer later.

Aftermath of DK Basu vs. State of West Bengal (1997)

The Supreme Court has laid down guidelines in a detailed manner to be followed by the Central and State Investigating security agencies in all cases of arrest and detention. While the guidelines were intended to ensure the protection of the rights of the detainees, their implementation varied across the different states over time. An Anti torture bill was discussed in 2010 in parliament but was unfortunately not passed, but the guidelines established in DK Basu vs. State of West Bengal have been integrated into the Criminal Procedure Code 1973, through the Code of Criminal Procedure (Amendment) Act 2008, effective from November 1, 2010. This amendment brought changes like allowing video conferencing technology to record evidence of witnesses and speedy trials including the establishment of special courts. We have seen changes in the pattern of arrest by the police officers and the procedure to be followed by them after arrest. These guidelines have increased awareness among law enforcement agencies. Various training programs have been initiated to educate police officers about the guidelines and ensure compliance with them. After the DK Basu case, police could be held liable for inflicting any kind of harm on the prisoners. Prisoners too have their right to life and it should be protected under Article 21 of the Constitution. 

Severe issues like control of  police brutality and abuse of powers and the need for enhanced safeguards to control this was the main concern in this case. The Apex Court also directed that these guidelines shall be widely circulated amongst the concerned authorities. The court also held that in case of any kind of disobedience on the part to follow the guidelines will attract punishment for contempt of court. 

Analysis of the judgement

After analysing the scenario before and after the pronouncement of the guidelines and their implementation in the Indian scenario, a few positive effects, as well as drawbacks of the judgement, can be framed.

Positive Effects of the Judgement

  • India being a Common Law Country gives a lot of importance to precedents. A landmark judgement on this severe crime was very much required to control the abuse of powers by the police officers. The guidelines provided give a detailed answer as to the conduct of the police authorities while dealing with undertrial prisoners. Besides that the guidelines have also highlighted the rights of the individuals behind bars.
  • The judgement raised awareness about the torture made by policemen in custody among the law enforcement agencies as well as the public at large.
  • Earlier many cases of custodial violence were not reported, but after the pronouncement of the guidelines, the conduct of the police officers is properly scrutinised and any misbehaviour on their part is recorded and reported.

Drawbacks of the Judgement

  • Loopholes in the Legal framework like delays in the procedure of investigation have resulted in ineffective implementation of the guidelines pronounced in the judgement. Due to this delay in the legal framework, many perpetrators have escaped punishment.
  • The lack of literacy and resources in our country has caused insufficient awareness among the public and proper training facilities among the police authorities. Many times we have observed that a police officer is unaware of the method of treatment of prisoners similarly individuals behind bars are not aware of their rights. Many times it is also observed that neither a victim nor his family members are aware of their right to compensation for the damage suffered.
  • We all know that law and society are interlinked with each other. So law should also be dynamic with the changing needs of the society. The guidelines in this judgement were laid down a long time back so its update with the change in society is very much required. With the evolution of the norms of society there is a need to review and update the guidelines given. But no such updates have been observed.

Conclusion

Third degree torture by the officers could be controlled to some extent after the pronouncement of these guidelines. This judgement made it clear that failure to comply with the guidelines should, apart from rendering the official concerned liable for departmental action, also render him liable to contempt of the court and the proceedings for contempt may be instituted in any High Court of the country, having territorial jurisdiction over the matter.

Even though we have observed a reduction in custodial deaths and violence, this problem has not been entirely eradicated as some of the guidelines are more of theoretical regulations. We have seen instances of how police torture detainees only to show their power. Famous bollywood movies like “Gangajal” and “Jai Bhim” have portrayed police brutality and custodial deaths. Police officers in rural areas should be trained about these guidelines more properly. People residing in rural areas are not so aware of their rights so officers there get a chance to overpower them. Illiteracy is always a curse on society. Besides the officers, the detainees should be also aware of their rights while they are detained. Knowing of the individual rights properly and proper implementation of the guidelines given in DK Basu would definitely help us to overcome this problem.

Frequently Asked Questions (FAQs)

What is the importance of the DK Basu Case?

The DK Basu judgement is considered to be a landmark judgement in the field of criminal jurisprudence as it  has addressed grave matters like custodial violence, the rights of the arrested persons and the conduct of police officers. These three main points are discussed below.

  • Custodial Violence: This judgement has served as a deterrent against the violence inflicted by police officers on individuals in custody. Laying down obligations on the police authorities through these guidelines has helped to curb custodial violence to some extent.
  • Rights of the arrested persons: The guidelines pronounced in this judgement gave light on the fact that arrested persons do have their fundamental right to live mentioned under Article 21 of The Indian Constitution, so it’s the duty of the authorities in charge to protect the inmate’s fundamental rights. Besides that the guidelines also stipulated that the individual has a right to know the grounds of his arrest and the other information relating to his arrest. This judgement has tried to ensure the right to life, dignity and personal liberty of the arrested persons.
  • Conduct of police officers: This judgement through its guidelines has tried to establish procedural safeguards to prevent arbitrary and abusive powers by the police authorities. 

What are the consequences for the non-compliance of the DK Basu Judgement?

The court held that non-compliance with the guidelines laid down by this case would initiate: 

  • Departmental actions against the alleged police officer and he would also be held liable for contempt of court. This can lead to legal proceedings ultimately resulting in the conviction of the alleged police officer.
  • Disobedience of the guidelines by the authorities can attract reputational damage to the entire law enforcement agency. Police authorities are there for the public, any misconduct on their part can undermine the public trust in the police personnel.
  • The individual victim who suffered the violence or any of his family members can file a suit for compensation for the damages caused. The amount of damages varies from case to case depending on a number of factors like the amount of pain and suffering caused, the effect on the loss of livelihood of the victim, the psychological impact on the victim and various other relevant factors.

References

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New world of drugs becoming a necessary evil https://blog.ipleaders.in/new-world-of-drugs-becoming-a-necessary-evil/ https://blog.ipleaders.in/new-world-of-drugs-becoming-a-necessary-evil/#respond Sat, 16 Mar 2024 13:30:00 +0000 https://blog.ipleaders.in/?p=120252 This article has been written by Harshit Yadav pursuing a Diploma in US Corporate Law and Paralegal Studies course from LawSikho. This article has been edited and published by Shashwat Kaushik. Introduction Drugs are substances that are used to treat illness, alter perception, change mood or change behaviour. Here we will be talking about the […]

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This article has been written by Harshit Yadav pursuing a Diploma in US Corporate Law and Paralegal Studies course from LawSikho.

This article has been edited and published by Shashwat Kaushik.

Introduction

Drugs are substances that are used to treat illness, alter perception, change mood or change behaviour. Here we will be talking about the drugs that are abused by people for recreational use and can cause addiction. Globally, drugs have been used to get euphoria throughout history and have been an integral part of the celebration. Some countries and communities have a culture of using drugs as a main party ingredient or as a welcoming drink, like the Marwari community, which uses opium as a welcome drink and at functions. The native Indians used cannabis for medicinal and spiritual purposes. With colonialism, the colonists forced people to grow crops like opium, coca, etc., but at the same time they banned drugs in the countries and hence started a war on drugs by making legislation like the Dangerous Drugs Act, 1930. But now, in the 21st century, many countries like the USA, Canada, EU, etc. are legalising and decriminalising drugs while at the same time suffering from the bad effects of drugs, like an increase in crimes against society and drug users becoming a burden on the state. But still, decriminalisation of drugs is rapidly growing, hence making drugs a necessary evil and the world a new world of and for drugs.  

Types of drugs

There are 7 types of drugs based on their effects. Each type of drug has its own set of characteristics and dangers.

Stimulants

Stimulants increase activity in the central nervous system. The increased brain activity can make you feel like you are speeding up. Stimulants can increase your heart rate, blood pressure and level of alertness. These drugs typically come in pill form. However, they can also be eaten, drunk, or snorted. For example, Ritalin, cocaine, ecstasy, and synthetic marijuana   

Associated risks: Students or athletes can abuse these substances to improve their performances. When abused, stimulants can lead to a variety of unwanted consequences. These effects include paranoia anxiety psychosis depression stroke seizures high body temperature, etc.  

Opioids

Opioids are powerful painkillers that can give you a sense of euphoria. Doctors typically prescribe opioids to people experiencing severe pain. Opioids can be injected and consumed as pills. A few examples are heroin morphine opium norco, etc.  

Associated risks- Opioid abuse can ruin a person’s life. Because it’s highly addictive, it can get a person addicted in just a few days. Some symptoms include nausea, vomiting, diarrhoea, anxiety and an inability to sleep.  

Depressants

Depressants don’t make you feel depressed. Like stimulants, they affect the central nervous system and slow down the messages between the brain and the body. Some examples of depressants include barbiturates, alcohol, Xanax, and valium.

Associated risks: Abusing depressants can cause issues both long and short-term, including confusion Dizziness, extreme sleepiness, slowed heart rate, and difficulty speaking.

Hallucinogens

Hallucinogens work by disrupting brain activity. As the name implies, the drug affects a person’s sensory perception, causing hallucinations. Some examples are psilocybin peyote LSD.

Associated risks: Hallucinogen fears distorted cognition psychosis, etc.  

Dissociatives

Dissociative drugs work by interfering with the brain’s receptors for glutamate. This chemical plays a significant role in cognition, emotionality and pain perception.  

These drugs can be taken as liquids, powders, gases, or solids. Some examples of dissociative drugs include ketamine, DXM, and PCP.

Associated risks: These drugs give the abuser a false sense of invincibility and can cause long-lasting effects along with memory loss speech difficulties suicidal thoughts social withdrawal numbness, etc.

Inhalants

Inhalants are volatile chemical substances that turn into vapours and, when inhaled, cause mind-altering effects and euphoria. These are mostly made up of everyday household items Some examples of inhalants are marker paint, gasoline, nitrous oxide aerosol sprays, etc.

Associated risks: They can have devastating immediate and long term effects, including smell loss, nosebleed weakness, brain damage, increased heart rate, etc.

Cannabis

Cannabis or marijuana, is a natural psychoactive drug derived from the cannabis plant. It can be smoked, eaten or inhaled. A few sources of cannabis are marijuana leaves, hashish, hash oil, sativex, etc.

Associated risks: Cannabis is listed as a Schedule 1 drug, which means it is highly addictive. Abusing this substance leads to both short and long-term effects. Including low sperm count, sedation, lower immunity, chronic anxiety, etc.  

History of drugs

The history of drug or substance use goes way back in time. Contrary to what people generally think, some scientist believe that the relationship between humans and alcohol is about 100,000 years old, as theoretically, they believe that palaeolithic humans and their ancestors know that leaving fruits in jars for a period will make alcohol as early as 25000 BCE the Venus of Laussel, found in caves in France, is a palaeolithic age carving showcasing a woman holding a horn shape jar, which inferred drinking in horn jars. Besides that, hallucinogens have been found in caves in Peru dating back to 8600 BCE -5600 BCE. Evidence of the earliest production of wine was found in China, dating to 7000 BCE. Statues of giant mushrooms found in El Salvador date back to 1000 BCE. Burnt cannabis seeds are found in graves in

India and Serbia date back to 500 BCE. The cultivation of opium was found in Mesopotamia in the 4th millennium BCE, then coffee consumption began in Ethiopia and later spread to the Islamic world in the 11th century. In the 15th century, tobacco smoking and chewing became popular in Europe. Coca leaves were explored in the 16th century, in the 1950s and 1960s, with the discovery and use of LSD and other psychedelics. Late 20th-century crack cocaine epidemics in the USA and, in the 21st century, synthetic drugs like spice/k2 etc. are emerging.

Social impacts of drug or substance abuse

The abuse of drugs leads to addiction to them. Addiction is a brain disease, and it’s not a simple disease but rather a complex one that not only damages an individual’s physical and mental health but also damages his/her social status and also impacts the lives of his/her peers, friends, family and the society in which he/she is living. Substance abuse has affected nearly all aspects of life, including communities, homes, schools, workplaces, jails, etc.  

To understand the social impacts of drug abuse, it’s important to know why people abuse drugs. A deeper understanding of the motivation and causes behind drug abuse can help in framing better policies for the problem.

Why do people abuse drugs

Addiction is not a choice. Many who develop this disorder come as a result of seeking a solution to discomfort, as many of the drugs, such as opioids, directly affect the central nervous system, giving a euphoric feeling.

Some other factors that make people abuse drugs are:

  • Using a substance in peer pressure or out of fear of missing out  
  • Using a substance to improve performance and remove anxiety and nervousness
  • Using a substance to relieve stress  
  • Using a substance to improve mood and feel better physically, mentally or both.

There are other reasons as well for people leaning towards drug abuse, such as poverty. Poverty is one of the strong reasons people get addicted. In a report, it was shown that opioid addiction in 17 states is more prevalent in economically disadvantaged zip codes. Another big reason is that homelessness also increases the risk of drug addiction. Some social stigma also plays an important role in drug addiction, such as racism and stigma related to certain appearances, certain backgrounds, etc. When people belong to these particular areas or communities and face social distrust for them, they tend to submit to drug addiction.  

Social effects of drug abuse

The abuse of substances not only affects a person’s physical or mental health but also has serious negative social consequences that are:

Short-term effects of drugs – people suffering from addiction can notice a change in their behaviour as the disease progresses, which may have short-term negative effects.

Long-term effects of drugs – long-term effects of drugs can be seen after long chronic use of drugs. When the body falls into drug dependence, one can observe a drastic change in one’s personality that can be called a long-term effect of drugs that causes harm to oneself or causes harm to another person due to unemployment.

Some other social effects include:

  • Homelessness: Spending most of your money on drugs will eventually lead you to be homeless.
  • End of relationship: It is seen that people engaged in substance abuse often end their relationship with their loved ones
  • Violence: It is seen that people abusing drugs are often violent and can cause harm to themselves and others  
  • Legal issues: Buying, selling or consuming unprescribed or illegal drugs can also bring legal issues to your door, and you can face prosecution.
  • Corruption: Drug cartels and drug lords also buy off the police and prosecutors to get away with a law that: also increases corruption in the country.
  • Sexual effects: Illegal drugs are also perceived as sexual stimulants and aphrodisiacs. Drugs like marijuana can increase the sexual mood, which leads to sex-related crimes like rape. Also, sexual health is compromised by substance use diseases like AIDS and other infectious STDs that are spread among drug addicts.

Signs of drug abuse

Signs of drug abuse are:

  • Neglect in grooming
  • Changes in appetite and sleep patterns  
  • Sudden weight loss or weight gain  
  • Mood swings and unnecessary fear
  • Secret behaviour  
  • Abnormality of pupil size or bloodshot eyes 
  • Hyperactivity, etc.

Drugs and crime 

Drugs and crime go hand in hand with the increase in drug abuse and crime drugs are the main reason for most of the crime happening on the streets crime are two types one is organised crime other is unorganised. Unorganised crime is referred to as a crime carried out by individuals or small groups without any hierarchy or formal structure for example, petty theft or sometimes murder. Most of the people engaged in crimes like that are drug abusers. According to a study,around 65% of people in jail in the USA have a substance use disorder [SUD]. Drug trafficking alone is the most widespread and lucrative organised crime in the USA, which constitutes 40% of the estimated annual income of as much as 110 billion dollars. Most of the drug related organised crime is done by cartels around the world, some of them also engage in other crimes such as human trafficking, prostitution extortion murder, etc. Some terrorist organisations, like the Taliban, are also engaged in drug trafficking. The history of drug trafficking in the USA started at least in the 1800s with the opium influx from China. In the 20th century, the USA saw the trafficking of marijuana and cocaine in the 1980s. Drug-related crimes are growing and becoming more violent day by day. For instance, in a small, peaceful country like Ecuador, 210 tonnes of drugs were seized and 4500 killings were recorded last year. Drug cartels are recruiting children in Ecuador. For estimating the cost of drug crimes, let’s take the example of England. Examples of users needing £15,000 to £30,000 a year to fund drug habits have often been given. To make such amounts of money from stolen goods, police often suggest multiplying by three, on the basis that stolen goods will fetch about one-third of their normal value. There are estimates of around 306,000 heroin and/or crack users in England, with around 200,000 of them in treatment in any one year. That is a lot of theft, burglary, fraud, or shoplifting if all are stealing to pay for things. This has led some people to suggest that up to half of all acquisitive crime is drug-related and that the market value of goods stolen involved could be between £2-2.5 billion each year. With these frightening stats, we can understand how dangerous the situation is.

How the war on drugs increases violence and rewards the cartels

In 1971, the United States of America adopted a national policy to fight drugs and declared a war on drugs, which failed to curb the drug-related violence in the USA and Latin America. The death toll is rising, continuing in Mexico, which has claimed more than 35,000 lives since December 2006. In another report, it was stated that over 30,000 people have died each year since 2018 in Mexico. Government policies targeting drug trafficking have inadvertently fueled violence, as crackdowns on drug operations can lead to increased violence. Government seizures of illegal drugs may reduce supply, but they also drive up prices, increasing profits for drug cartels and leading to conflicts over higher profits. Arresting or killing drug kingpins can make them more impatient and less concerned about long-term profits, leading to increased conflict and violence within cartels. The research showed that the government should reexamine the policies to cope with the problem.

Economics of drugs

Understanding the economics of drugs is very important to understand the importance and gravity of the problem. RAND Corporation found that drug abusers bought $100 billion worth of drugs annually. Only opioid abuse, overdose, and treatment costs reached $75 billion in the US in 2013. National drug control agencies are also demanding $46.1 billion in total to support drug treatment and prevention. Also, it is evident that the drugs are inflation-proof as no matter what the price of drugs is, people who are addicted to them are going to buy them no matter what. Also, the margins on drugs are very high. Also, with time, the drug trafficking industry evolved using the latest technology. Now, drug cartels are using decentralised cryptocurrencies like bitcoin; annually, $76 billion worth of transactions are made with cryptocurrencies. Drug cartels are now financing drug marketplaces on the dark web and also supplying free samples, running a properly organised market place on the dark web for illegal drug trafficking, making it more concerning for the governments of countries around the globe. With those numbers of drug sales, we can now estimate how big this industry is.  

Drug abuse by celebrities, performers, and athletes

Drug abuse in pop culture is a serious problem, glamourization of drugs by the media only adds to the problem of drugs in society as people tend to make media personalities their ideals and tend to follow everything they do in their movies and songs. Several movies and songs glorify drug abuse. Some examples are Wolf of Wall Street, Scarface, etc., where drug use is glorified by the hero of the movie. Various artists, including Daniel Radcliffe [Harry Potter], are also suffering from substance abuse disorder. These instances and glorification of drugs influence children and teens, as well as some adults, to move towards the drug, and they start to use drugs to look cool like their heroes, gradually binding themselves into the darkness of substance abuse disorder.  

Policies for drugs around the globe

The world has a split view on drugs. Some countries are moving towards the legalisation of drugs, some are making stricter laws for drug abuse or selling; and some are somewhere in between strict laws and legislation that decriminalises drugs. The question is why decriminalise or legalise drugs? The demand for decriminalising started when people started thinking that the war on drugs was a failure and in a 2021 poll majority of 66% of people voted to decriminalise drugs instead of the opposite; they thought that previous policies were a failure and should focus on the health approach the reasoning behind that is the money spent on catching drug offender and then punishing them should rather be spent on volunteer rehabilitation, drug education, etc. Oregon became the first state to decriminalise hard drugs and the Netherlands was the first country to completely decriminalise the sale and use of cannabis. Countries like Switzerland have safe rooms sponsored by the government where heroin addicts can have a dose in a safe environment with safe needles. Also, Switzerland is considering legalising cocaine for recreational use to make the country’s rampant drug use safer.

India

In India, the laws regulating the use of drugs are multifaceted and stringent, aiming to maintain public health and safety. These laws are primarily governed by the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) of 1985, which classifies and controls various substances, their production, possession, cultivation, sale, purchase, and consumption.

  1. Classification of drugs:
    • The NDPS Act categorises drugs into five schedules based on their potential for abuse or dependence:
      • Schedule I: Includes substances with high potential for abuse and no accepted medical use, such as heroin, LSD, and cocaine.
      • Schedule II: Contains drugs with high potential for abuse and limited accepted medical use, such as morphine and pethidine.
      • Schedule III: Includes drugs with moderate potential for abuse and some accepted medical use, such as codeine and buprenorphine.
      • Schedule IV: Consists of drugs with low potential for abuse and primarily used for scientific or industrial purposes, such as dextromethorphan and ephedrine.
      • Schedule V: Includes drugs with low potential for abuse and minimal risk of physical or psychological dependence, such as dextromethorphan-containing cough syrups.
  2. Controlled substances:
    • The NDPS Act strictly regulates the production, possession, and distribution of controlled substances, which include drugs listed in Schedules I to IV.
    • Manufacturing and distribution of these substances require a licence from the Central Government, and production is restricted to authorised facilities.
    • Penalties for unauthorised manufacture or distribution can be severe, including imprisonment and fines.
  3. Restrictions on possession and consumption:
    • The NDPS Act prohibits the possession, consumption, and sale of controlled substances without a valid prescription from a registered medical practitioner.
    • It also restricts the quantity of certain drugs that can be prescribed and dispensed.
    • Violation of these provisions can result in legal consequences, including arrest, prosecution, and punishment.
  4. Drug trafficking and illicit drug trade:
    • The NDPS Act addresses drug trafficking and the illicit drug trade by defining offences such as illegal import, export, production, and sale of controlled substances.
    • It empowers law enforcement agencies to investigate, arrest, and prosecute individuals involved in drug trafficking activities.
    • Severe penalties are prescribed for drug trafficking offences, including imprisonment for long terms and substantial fines.
  5. Drug abuse prevention and treatment:
    • The NDPS Act also recognises the need for drug abuse prevention and treatment. It provides a legal framework for establishing drug de-addiction centres and rehabilitation programmes.
    • The government has undertaken various initiatives, such as the National Drug Demand Reduction Programme, to create awareness about drug abuse, promote prevention measures, and provide treatment and rehabilitation services to individuals struggling with drug addiction.
  6. Drug law enforcement:
    • The NDPS Act is enforced by various law enforcement agencies, including the Central Bureau of Narcotics (CBN) and the Narcotics Control Bureau (NCB).
    • These agencies conduct investigations, seize illegal drugs, and apprehend individuals involved in drug trafficking and abuse.
    • They also work in collaboration with international organisations and other countries to combat drug trafficking and ensure effective drug law enforcement.

Overall, the laws on the usage of drugs in India are aimed at preventing drug abuse, controlling the supply and distribution of controlled substances, combating drug trafficking, and providing a framework for drug abuse prevention and treatment. These laws are essential in safeguarding public health, reducing drug-related crimes, and promoting the welfare of individuals and society as a whole.

Legalising cannabis  

Another surprising thing trending on the internet is the reasons people are giving to legalise cannabis. From economic reasons to portraying it as a step towards ending racism. Here are some reasons why cannabis must be legalised.

Economic burden

For decades, millions of Americans were put behind bars and arrested for marijuana possession—more than murder, rape, robbery, and aggravated assault combined. Prohibition also hurts the economy in terms of lost wages and also affects the future of people, as Americans with criminal records find it hard to get the jobs and education they want.

For the environment

Legalisation of cannabis can increase biodiversity and if grown illegally, it will be grown in environment-damaging ways. But if legalised, the precious seed of marijuana can be saved, which will increase biodiversity and be beneficial for the environment.

Legalisation for public health

The legalisation of marijuana will improve the health sector as well because of its medicinal properties, as it is also beneficial for many syndromes like PTSD. States that legalised cannabis also recorded fewer opioid overdose deaths and people will not use hard drugs.  

For revenue

Legalisation of cannabis will generate revenue from taxes for governments. The states that have legalised marijuana have earned millions of dollars from taxes, with California generating a whopping 1.2 billion from marijuana taxes. It will also generate jobs and employment.

For racial justice

The legalisation of marijuana also has its roots in racism, as marijuana prohibition was done because of anti-Mexican sentiments. With the Mexican Revolution in 1910, the government started to regulate and make strict laws on marijuana, gradually outlawing it. Also, people of colour, like black Americans, have a higher chance of getting arrested in cases of marijuana possession. People think legalising cannabis will stop people stereotyping people of colour as criminals and police will not regularly search their communities for marijuana.  

Cannabis is safer than alcohol

Research has shown that cannabis is safer than alcohol as it has less potential for addiction. People die more because of alcohol than because of cannabis. More than 50,000 people die because of alcohol.

Global stance on hard drugs  

Global stances on hard drugs are split. Some countries have a strict prohibition approach, while others are taking a liberal approach to it. Countries like the Philippines have the death penalty for drug trafficking, and countries like Switzerland legalize them for recreational use.

The emergence of new deadly hard drugs

With countries having liberal approaches towards hard drugs and decriminalising and legalising them for recreational use, the emerging of new deadly and highly addictive drugs hitting the streets of countries like the USA is catching them completely off guard. Drugs like xylazine or tranq are becoming a threat to the country because the drug is highly addictive and “just eats the skin away,” experts say, making it a threat to the nation. Other new drugs in this segment are carfentanil, which is 10,000 times more potent than morphine and synthetic cannabis, which is a fake weed more dangerous than its leafy counterpart. Drugs like xylazine and flakka are also called zombie drugs as they lead to necrosis and then painful death.

Conclusion

As we have established, the problem of drugs is not new; drugs were an integral part of society and developed along with humans, from alcohol in the Palaeolithic age to flakka in the modern day. There were times the drugs were considered some potion from the gods in some ancient cultures, then they became social evil and further transitioned into an essential element for happiness and an important ingredient of modern-day parties. Now drugs are a new global trendsetter as many protests are going on for decriminalisation and legalisation of drugs, changing the point of view and portraying them in a new picture, making cannabis safer than alcohol, using hard drugs is liberal, etc. Economics say it’s a good approach as it will bring revenue to the nation, generate jobs, and make everyone happy, but the other side of the coin is that people are becoming addicts and losing it. New and more dangerous drugs are introduced by the cartels frequently, violence is increasing, children are joining cartels and crime is still there. By legalising it, the government is making it easier for the cartels to supply drugs. In the end, I’ll leave it to you to decide whether you like this new world of drugs or not.

If you or anyone you love is suffering from a problem of drug abuse or substance abuse disorder, you can give a call to the national helpline at 1800-11-0031 for assistance from the government.

References

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Sakiri Vasu v. State of UP (2007) : case analysis https://blog.ipleaders.in/sakiri-vasu-v-state-of-up-2007-case-analysis/ https://blog.ipleaders.in/sakiri-vasu-v-state-of-up-2007-case-analysis/#respond Sat, 16 Mar 2024 08:17:19 +0000 https://blog.ipleaders.in/?p=120241 This article has been written by Shahela. This article seeks to analyse, through the case of Sakiri Vasu v. State of U.P., the role and power of the police under Section 154 of the CrPC and the power of the Magistrate to oversee the investigation under Section 156 of the CrPC in detail. Further, the […]

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This article has been written by Shahela. This article seeks to analyse, through the case of Sakiri Vasu v. State of U.P., the role and power of the police under Section 154 of the CrPC and the power of the Magistrate to oversee the investigation under Section 156 of the CrPC in detail. Further, the article deals with the laws and precedents discussed in this case, along with the doctrines of implied power and updating the construction of statutes. Section 482 of the CrPC is also discussed to analyse the power of the high court to entertain the writ petition and its maintainability.

Introduction

The case of Sakiri vasu v. State of UP and others (2007) is one of the remarkable judgments of the Supreme Court of India. It deals with and discusses the importance of Section 156(3) of the Code of Criminal Procedure (hereinafter referred to as the CrPC) and the powers of the Judicial Magistrate to ensure a proper investigation of the matter. The provisions of Section 156(3) of the CrPC have an extremely wide scope. During this case, the Supreme Court under Section 482 of the CrPC directed the Magistrate by empowering him under Section 156(3) of the CrPC to instruct the police for the proper investigation and for the registration of an FIR, which was not done in this case previously.

According to Section 154(1) of CrPC, if any information of cognizable offence is given to a police officer orally in the police station, then that police officer is accountable for writing down the information by himself or under his direction by any of his subordinates, which will be signed by himself/herself along with the person who gives the information. After that, the complaint will be forwarded to the Superintendent of Police (SP) under Section 154(3) of the CrPC. The SP, upon receiving the complaint in writing, will check the genuinity of the complaint, and if the complaint discloses the attributes of the cognizable offence, then the investigation will be made by himself or the direction for the investigation will be given by him to any of his subordinates in the manner laid down under CrPC. The Judicial Magistrate, under Section 156(3) of the CrPC, is enshrined with the power to look into the cognizable cases where directions for investigation are given by the Magistrate to the police under Section 190 of the CrPC.  

The above-mentioned procedure is available in the CrPC to the person who made the complaint for any cognizable offence for the proper investigation of the matter by the police as directed by the Judicial Magistrate. First, there’s the filing of the complaint in writing, as made orally by the complainant. If there’s any failure to register the FIR under Section 154 of the CrPC, then the complainant can, through written application, reach out to the SP under Section 154(3) of the CrPC. And if SP also does not register the complaint, then the complainant under Section 156(3) of CrPC, can reach out to the Magistrate to direct the police for the registration of the FIR and also for a proper investigation of the case. 

Details of Sakiri Vasu v. State of UP (2007)

  • Case Name: Sakiri Vasu v. State of Uttar Pradesh and Others
  • Case No: Appeal (Crl.) 1685 of 2007
  • Equivalent Citations: 2007 SCC OnLine SC 1488 or (2008) 2 SCC 409
  • Acts involved: Constitution of India, Criminal Procedure Code, 1973,Delhi Special Police Establishment Act, 1946.
  • Important provisions: Articles 21, 32, 136, and 226 of the Indian Constitution; Sections 154 read with Sections 36, 156(3), 200, and 482 of the Criminal Procedure Code, 1973; and Section 3 of the Delhi Special Police Establishment Act, 1946.
  • Court: Supreme Court
  • Bench: 2 judges bench; A.K. Mathur & Markandey Katju, JJ.
  • Petitioners: Sakiri Vasu
  • Respondents: State of Uttar Pradesh and Others
  • Judgement Date: 07/12/2007

Powers of Judicial Magistrate to vigil the investigation

The Judicial Magistrate, under Section 156 of the CrPC, has the power to direct the police for a proper investigation. This power to vigil the investigation by the Magistrate has some stages, which can be understood below:

  1. The first stage is to direct the police for investigation immediately after the filing of the FIR.
  2. The second stage is where the person gets arrested in the process of investigation. He or she shall be required to be presented by the police within 24 hours to the magistrate to determine the validity of the arrest and to further decide the category of arrest, judicial or police.
  3. The third stage is the intervention of the judicial magistrate for recording statements under Section 164 of the CrPC, where a person makes a confession before the magistrate as well as for ID verification, identification and seeking applications.
  4. The fourth stage is monitoring the investigation.
  5. The fifth stage is a direction for further investigation under Section 173 of the CrPC after the filing of the FIR.

Facts of Sakiri Vasu v. State of UP (2007)

This appeal was made by the appellant aggrieved against the order and judgement of the Allahabad High Court passed on 13.07.2003, in Criminal Misc. Writ Petition No. 9308 of 2007. The appellant has a son named S. Ravishankar, who was a Major in the Indian Army. His dead body was found at the Mathura Railway Station on 23.08.2003. The Govt. Railway Police (G.R.P.), Mathura, investigated the case of the deceased and submitted a detailed report on 29.08.2003 concluding it was either an accident or suicide. 

During the inquiry, the court relied on the statements of the Sahayak (Domestic Servant) and the main eye-witness, Ram Swaroop. Sahayak (Domestic Servant) made a statement that Major S. Ravishankar was never a cheerful person, he used to sit on the verandah on a chair and always look at the ceiling with aloof, blank eyes. He was always in some kind of deep thought and was unaware of his surroundings. The eyewitness, Gangman Ram Swaroop, stated that Major Ravishankar was hit by the goods train coming from Delhi. But the father of the deceased was suspicious of his son’s death and claimed it was murder instead of suicide. He stated that his son told him about the ongoing corruption in the Mathura unit of the Army, and he also made complaints about this to his superiors. According to the appellant, due to this reason, his son was murdered.

The first court inquiry into the matter was made by the Army, which held its report in 2003, holding it to be a case of suicide. Unsatisfied with the report, the appellant on 24.04.2004 demanded another detailed investigation by the then Chief of the Army Staff, Gen. N.V. Vij, but the conclusion of the report was the same, holding the matter a suicide. The appellant, aggrieved by both the investigations of the Army Court, filed a writ petition in the Allahabad High Court. The appellant prayed for the investigation to be done by the Central Bureau of Investigation (CBI), which was dismissed. Hence, this appeal was filed by the appellant in the Supreme Court by special leave.

Issues raised

  1. Whether the Magistrate has the power under Section 156(3) of the CrPC to pass an order for the investigation by the CBI?
  2. Whether the Magistrate has power under Section 156(3) of the CrPC to dismiss the order for the registration of an FIR?
  3. Whether an individual can approach the High Court even if there are alternative remedies available in CrPC?
  4. Is it possible for the aggrieved party to ask for a specific agency for the investigation?
  5. Whether the Magistrate has the power to dismiss the re-opening order for the investigation after the ‘Final Report’ is submitted under Section 156(3) of CrPC.

Arguments of the parties in Sakiri Vasu v. State of UP (2007)

 Appellant

  1. The appellant made the argument that the appellant’s son, Major S. Ravishankar, was aware of the corruption happening in the Mathura Army Unit. He made an oral complaint about the same to his superiors and also informed his father about this corruption. The appellant argued that his son was murdered due to this very reason.
  2. The appellant also argued that the proper investigation was not done by the GRP Mathura, and the detailed report submitted by them concluding his son’s death as suicide is faulted.
  3. Lastly, the appellant was not satisfied with the investigation and inquiries made by the GRP Mathura and Army Courts, he prayed in his writ petition for the CBI investigation.

Respondent 

  1. The Ld. Counsel for the State of UP argued that, as per the inquiry made by the Army, relying upon the statement of Sahayak (domestic help), Major S. Ravishankar sometimes remains unaware of his surroundings, resulting in the inquiry that Major S. Ravishankar died by accident as he was struck by the goods train coming from Delhi. The same was witnessed by the eyewitness, Gangman Ram Swaroop.
  2. The argument made by the respondent was that the GRP investigation also concluded that the appellant’s son’s death was either an accident or suicide, but as the appellant was unsatisfied with the investigation results, the order for another investigation was made by the state to the Army Court.
  3. The respondent alleged that a person cannot specifically demand an investigation from a particular agency; instead, a demand for another investigation can be made. 

Laws and precedents discussed in Sakiri Vasu v. State of UP (2007)

The following are the sections and Articles deal within the case

  1. Section 154(1) CrPC: This provision states that the aggrieved person can make a complaint about the cognizable offence committed against him to the police officer in charge of the police station. It shall be reduced to the writing by him or on his order by some other police, and the same will be read to the complainant.
  2. Section 154(3) CrPC: If the FIR is not registered by the police in charge of the police station, then the aggrieved can approach the Superintendent of Police (SP) by writing an application. SP either himself or directs any of his subordinates to investigate the same.
  3. Section 156(3) CrPC: The aggrieved person can make a complaint before the judicial magistrate if his FIR is not registered or a proper investigation has not been done. The magistrate can order for both.
  4. Section 36 CrPC: Section 36 talks about the concerned police officers to whom the complaint has to be made in case of refusal from an officer in charge or SP, i.e., DIG, DGP or IG.
  5. Section 200 CrPC: A criminal complaint can be made by the aggrieved to the magistrate for the registration of a crime that has been committed.
  6. Section 482 CrPC: It is the inherent power of the High Court to pass an order in case any expressed provision is not available in the Code to maintain justice.
  7. Section 173(8) CrPC: If the investigation officer finds further any oral or documentary evidence which is very important for the proceeding of the case. Then the evidence will be put before the magistrate in a prescribed manner, and nothing can prevent the magistrate from passing an order for further investigation, even after the final report has been submitted by the police. 
  8. Article 136: It talks about the special jurisdiction through which an aggrieved person can file a writ petition in the Supreme Court by Special Leave (SL). Under this provision, an individual aggrieved by the decision of any tribunal or court can file a petition. It is the discretionary power of the Supreme Court to grant SL under Article 136.
  9. Article 226: It talks about the jurisdiction of the High Court, where the writ petition by the aggrieved can be filed.  

The court relied on several case laws for the pronouncement of judgment.

CBI v. State of Rajasthan (2007)

In this case, it was held that the Magistrate does not hold the power to order the CBI to investigate, but the High Court and Supreme Court, under Articles 136 and Article 226, can order the CBI to investigate the case. It would be done only in rare cases, otherwise the CBI would be burdened with unnecessary cases, and the relevance of the police would be in conflict.  

CBI v. Rajesh Gandhi and Others (1997)

In this case, it has been held by the SC that no one can ask for a specific agency for the investigation of the matter. An aggrieved person has a right to claim for the proper investigation of the case he alleges, but he has no right to claim for the investigation to be done by a specific agency of his choice. 

Mohd. Yousuf v. Afaq Jahan and Another (2006)

In this case, the Supreme Court observed that any judicial magistrate can direct an order to the police for the investigation under Section 156(3) of the CrPC before taking cognizance of an offence. Even if the judicial magistrate does not specifically order the registration of an FIR under Section 156(3) of the CrPC, the officer in charge of the police station has to register the FIR of the cognizable offence made by the complainant so the record of the components of the offence can be registered and a proper investigation can be done.

Dilawar Singh v. State of Delhi (2007)

In this case, a similar view to the above mentioned case of Mohd. Yousuf v. Afaq Jahn, was taken by the court in this matter. The court clarified that even if the FIR has been registered and an investigation has been done by the police or the investigation is ongoing, if the aggrieved party is not satisfied with it, then such a person can approach the magistrate under Section 156(3) CrPC. The magistrate can order a proper investigation after he is satisfied and pass any other orders he thinks are suitable for the proper investigation of the matter.  

State of Bihar v. J.A.C. Saldanha (1980)

In this case, the magistrate has independent power under Section 156(3) of the CrPC to order further investigation when the detailed report of the investigation is submitted by the investigating officer under Section 173(8) of the CrPC. Hence, the order for reopening the case can be made by the magistrate after submitting the final report, if the magistrate is not satisfied with the investigation report.

Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage & Ors. (2010)

In this case, it was determined that if the complaint had not been registered by a police officer or a proper investigation had not been done, then an alternative remedy is available to the aggrieved person instead of approaching the High Court under Article 226 of the Constitution, which is to approach the Magistrate under Section 156(3) of the CrPC.

High Court’s power under section 482 CrPC

The High Court has an inherent power under Section 482 of the CrPC, which enables the High Court to make any order necessary to prevent any abuse by any court and secure the ends of justice. The Hon’ble Apex Court relied on the case of Mohd. Yousuf v. Afaq Jahan.  It was observed that in India the High Courts are flooded with writ petitions praying for an order for the registration of an FIR or a proper investigation. The Supreme Court asked the High Court not to entertain such petitions and asked to refuse such matters as other alternative remedies are already present in the Code. First, under sections 154(3) CrPC and section 36 of Delhi Special Police Establishment Act, 1946 the aggrieved can approach the police, and if such a complaint is denied by the police officer, then, secondly, the aggrieved can approach the judicial magistrate under section 156(3) of the CrPC instead of filing a writ petition under section 482 of the CrPC, increasing the burden on the High Court. Further, the remedy of filing a complaint under Section 200 CrPC is also available.

Doctrines discussed in Sakiri Vasu v. State of UP (2007)

Some of the doctrines discussed in the case are as follows: 

Doctrine of implied power 

It is already stated that when any power is expressly granted by a statute to any authority, it includes implied powers for doing things properly, without any special mention. If there’s any refusal or denial of such implied powers, it will be considered ineffective under that provision. Hence, if any act or statute grants any expressed power, the implied power to do the same is already given, and it’s extremely important for the execution of such powers.

Crawford expresses the reason for such a rule in his Statutory Construction, observing, “….if these details could not be inserted by implication, the drafting of legislation would be an interminable process, and the legislative intent would likely be defeated by a most insignificant omission.”

In Savitri v. Govind Singh Rawat (1986), the court held that the power of the Magistrate under Section 125 CrPC to grant maintenance to the wife implies the power to grant interim maintenance to the wife while the matter is pending. 

From considering the above-mentioned legal position, it is obvious, as Section 156(3) is briefly worded, that there’s an implied power of the Magistrate to order the registration of an FIR for a criminal offence and to direct the police for the proper investigation of the matter. Even if these procedures are not expressly mentioned under Section 156(3) of the CrPC, they are the implied powers of the magistrate in the above provision.

Doctrine of updating construction

As per the doctrine of construction, the law should evolve along with the evolution of society. Hon’ble J. Bhagwati, in National Textile Workers Union v. P.R. Ramakrishnan (1981), said that law cannot be stagnant and stand still; it needs to be changed with social values and concepts. Section 156(3) requires the matter to be sent in writing via post. Before technological advancement, it would be considered the fastest mode of communication. After the technological developments, there are different modes of communication, such as WhatsApp, e-mail, or cellular calls, available for interpretation in writing and through the post. This doctrine should be used to cover such modes of investigation.

Judgement of Sakiri Vasu v. State of UP (2007)

The Supreme Court, relying on the case of CBI v. Rajesh Gandhi & Ors., held that any person who is aggrieved by the decision of any court or by an investigation by the police can refer the claim for the proper investigation but cannot demand the investigation by a specified agency. The Supreme Court believed that when an alternative remedy is present, there’s no need to approach the High Court as it would increase the burden and number of cases.

The Supreme Court affirmed the judgement of the High Court, rejecting the plea of the appellant asking for the CBI investigation, as there was no prima facie case to allow for such an investigation by the CBI. The previous inquiries done by the G.R.P. Mathura and two times by Army authorities have already shown that the cause of death of the deceased was an accident or suicide. 

The court also stated that the position of acceptance of the final report of the investigation was not clear, whether it was accepted by the magistrate or not. If the report is not accepted, then the matter is still deemed pending before the magistrate, and no order has been made. If the report is accepted by the magistrate then the matter would be considered completed.

Rationale behind the judgement

The Hon’ble J. Markandey Katju stated that an alternative remedy is present before an individual in the court instead of approaching the High Court. He said if any man or woman had to make a complaint, they would approach the police station, and the officer in charge would register their FIR under Section 154(1) CrPC; if the approach was denied, they’ll resort to the Superintendent of Police (SP) under Section 154(3) or Section 36. If the complaint is not registered, then the aggrieved person will approach the magistrate under Section 156(3) of the CrPC instead of filing a writ petition under Section 482 of the CrPC to seek justice. Moreover, the person can also file a criminal complaint in court under Section 200 of CrPC.

It is an alternative remedy presented to the aggrieved person, but it doesn’t bar a person from approaching the High Court. The writ petition could be filed in the High Court under both Section 482 CrPC and Article 226 of the Constitution. However, the High Court reserves the right to reject the petition if an alternative remedy is available

Court’s observation and guidelines in Sakiri Vasu v. State of UP (2007)

The guidelines made by the Supreme Court are:

  1. Report the complaint to the office in charge of the police station under Section 154(1) of the CrPC.
  2. Report to the Superintendent of Police (SP) if the officer in charge refuses to register an FIR under Section 154(3) of the CrPC.
  3. Report to the police officer superior of SP, i.e., DIG, DGP, IG under Section 36.
  4. Report to the judicial magistrate in case of failure in the filing of an FIR by any of the police authorities under Section 156(3) of the CrPC.
  5. The judicial magistrate has the power to file a criminal complaint under Section 200 of the CrPC.
  6. The inherent power of the High Court under Section 482 of the CrPC.
  7. File a writ petition in the High Court and in the Supreme Court under Article 226.

Conclusion

The Supreme Court, by making the remarkable landmark judgement in this case, has supported the idea of the alternative remedies present to the individuals for resorting to their issues regarding the registration of an FIR or for proper investigation under Sections 154 and 156 of the CrPC instead of directly reaching to the High Courts or the Hon’ble Supreme Court. 

It is evident from this judgement that, for any proper investigation, the registration of the FIR is necessary by the police officials. Then the magistrate must take cognizance of an offence based on the report presented before him by the investigation officer to order the further proper investigation of the matter. 

In the recent judgement of Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage & Ors (2010), it was determined that if the complaint has not been registered by a police officer or a proper investigation has not been done, an alternative remedy is available to the aggrieved person instead of approaching the High Court under Article  226 of the Constitution, which is to approach the Magistrate under Section 156(3) of the CrPC.

Frequently Asked Questions (FAQs)

Does the High Court have the power under Section 482 CrPC to reject the writ petition?

The High Court has the inherent power under Section 482 of the CrPC to either accept or reject a writ petition filed under Article 226 of the Constitution, especially when an individual is aggrieved with the decision of lower courts. The High Court will entertain such a petition only in cases where no alternative remedy is present, particularly when a First Information Report (FIR) was not registered under Section 154 of the CrPC and a proper investigation was not conducted under Section 156 of the CrPC. It is also important to note that, before approaching the High Court, several alternative remedies are available to the aggrieved party. These remedies include seeking redress from the Superintendent of Police under Section 154(3) of the CrPC, addressing the DIG, DGP, and IG under Section 36 of the Delhi Special Police Establishment Act, 1946, and filing a complaint under Section 200 of the CrPC before a Judicial Magistrate.

Can the magistrate have the power to reopen the investigation?

The Magistrate has power under Section 178 CrPC to order the investigation officer to re-investigation of the complaint in two conditions. Firstly, if he is not satisfied with the final report submitted by the police. Secondly, if there is any new concrete evidence came into the picture.

References

  1. Earl T Crawford, The Construction of Statutes 1008 (1940).
  2. https://lawfoyer.in/sakiri-vasu-v-s-state-of-up-and-ors/ 

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Cancer of immigration crisis : India and the world https://blog.ipleaders.in/cancer-of-immigration-crisis-india-and-the-world/ https://blog.ipleaders.in/cancer-of-immigration-crisis-india-and-the-world/#respond Fri, 15 Mar 2024 14:30:00 +0000 https://blog.ipleaders.in/?p=120250 This article has been written by Harshit Yadav pursuing a Diploma in US Corporate Law and Paralegal Studies course from LawSikho. This article has been edited and published by Shashwat Kaushik. Introduction In the modern world, the immigration crisis has become a cancer-like disease for countries in one way or another, just like cancer harms […]

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This article has been written by Harshit Yadav pursuing a Diploma in US Corporate Law and Paralegal Studies course from LawSikho.

This article has been edited and published by Shashwat Kaushik.

Introduction

In the modern world, the immigration crisis has become a cancer-like disease for countries in one way or another, just like cancer harms the body by starting with a tumour at one place and then becoming malignant, transferring to other parts/organs of the body, and starting to multiply, thus damaging the body. Similarly, an immigration crisis occurs like cancer in a country, starting with the uncontrolled, unauthorised, and unregulated growth of immigration and turning into an economic, social, and political crisis in the country.  

Today, almost the whole world is suffering from the immigration crisis. As of now, the US elections are on the horizon, and the immigration crisis is the main agenda for political parties and leaders not only in the USA but also in Europe.  

India plays a key role in the crisis as the world’s largest origin for international migrants. We are going to try to answer the tough questions about the immigration crisis, India, the world, and its potential solutions.

Understanding immigration and immigration crisis

Immigration means the process of moving from one country to another to stay, work, or study. An immigration crisis occurs when immigration becomes uncontrolled, unauthorised, and unregulated in a country. The immigration crisis has negative effects on countries’ economic, social, and political health. Sometimes it also compromises the country’s security. There are an estimated 272 million international migrants around the world. That equals 3.5 percent of the world’s population. It already surpasses the projection for 2050.

Global case studies on the immigration crisis

The USA

The United States of America is a classic example of an immigration crisis in today’s world. This year, an unprecedented number of immigrants arrived in the USA from the USA–Mexico border alone, which is 2.5 million. The USA has the largest number of migrants in the world, with 51 million in the year 2020, leading the world in this measure by a wide margin.

History of immigration in the USA

The history of immigration goes back to the Ice Age concerning the USA. The first immigrants came to North America from Asia in the Ice Age at least 20,000 years ago; they were the ancestors of Native Americans. Then came the Europeans, crossing the Atlantic Ocean. By the early 1600s, the Europeans had settled their colonies in the USA, including the Spanish in Florida, the English in New England and Virginia, and the Dutch in New York, among others. Pilgrims and Puritans came to the USA seeking religious freedom.

Forced and voluntary migration

Individuals arrived in British colonies via two very different paths. Some were forced to move, while others came voluntarily. Forced individuals came to the USA through slavery or transportation. The British brought immigrants to the USA through slavery and others through transportation, a criminal term for forced emigration that allowed Britain to expel its socially undesirables, criminals, and others as a way to populate their North American colony. In practice, those who were sentenced to death were asked either to be transported to North America or to hang. By 1717, the Transportation Act granted English courts the ability to sentence convicts to transportation, thus streamlining the process. Those who came voluntarily sought cheap land, new work, and a new life, among other reasons.  

Immigration after independence [1776-present]

After gaining independence in 1776, the USA began granting citizenship to white men of good character through the Naturalisation Act of 1790. This was followed by waves of immigration, starting with the Irish wave of immigration in 1815, then Chinese immigration in the 1850s, and later Mexicans filling the labour shortage in World War II. People have continued migrating to the USA in pursuit of the American dream, especially post-2000.

Making of a crisis

There was a time in the history of America when immigrants played a vital role in their economy. Slogans like “immigrants make America great” are often being raised in the US elections. But now immigration has become a problem for the USA between October 2022 and September 2023. There were 3.1 million attempts of border crossing along the southern border. Of that, an estimated 600,000 migrants were able to cross the border undetected, according to the Department of Homeland Security. The U.S. government had 2.5 million migrant “encounters,”  83 percent of which occurred between designated ports of entry, often in dangerous, remote locations like the Sonoran Desert. Over half a million migrants were expelled under Title 42, a policy enacted during the pandemic that allowed border officials to expel migrants without a deportation hearing. The Biden administration lifted the policy in May 2023. Most were processed under Title 8 immigration law, which covers a wide range of issues, including asylum, visas, refugees, and deportations. Almost 200,000 were placed into expedited removal proceedings, usually because of a criminal record or a prior border apprehension. Others voluntarily left to avoid further processing. Many were given humanitarian parole. Almost 1.5 million cases were registered with the immigration court in the last fiscal year. There are about 1.3 million deportation orders.

Impacts of immigration

As we have established, the immigration crisis occurs with an increase in illegal or unregulated immigration. Here are some of the impacts of immigration on the USA-

Strain on public utilities

Illegal immigrants mostly use public utilities like buses, parks, subways, public schools, and health facilities, but they don’t pay taxes for the maintenance of these utilities.

Ready supply of cheap labour

Illegal immigrants are mostly desperate for jobs and income, so they are ready to work for less money, which ideally fulfils the labour shortage and also provides cheap labour. However, the downside is that it increases corporate crimes like exploitation of labourers, bondage, slavery, debt traps, etc., and these migrants can’t even sue the employer. 

Loss of tax revenue

Illegal immigrants get away with taxes as they don’t have any documents that make them pay taxes.

Loss of jobs for citizen

Illegal immigrants also take jobs from the local citizens, as they are cheaper and easier to get.

Rise in criminal activities

While many came for employment and a better lifestyle, most of them are also engaged in criminal activities, and a few of them are even involved in terrorism. The MS-13 gang, which is composed of Central American immigrants, is a classic example of immigrants turning into criminals. It is also considered one of the most dangerous gangs in the world.

Overcrowding

Illegal immigrants also cause overcrowding in the cities. 

Increase budget deficit and government debt

Related to the welfare argument is the argument that immigrants consume more government benefits than they generate in tax revenue. The empirics on this are fairly consistent—immigrants in the United States have about a net‐​zero impact on government budgets.

Increased economic inequality

Illegal immigrants also increase the economic inequality of a country, as they are generally economically weaker than the original citizens of the country but are present in large numbers, thereby increasing economic inequality.

Reasons for migrants flowing to the USA

Haiti crisis deepens

The crisis in Haiti is deepening and becoming worse day by day with increasing instability, disease outbreaks, natural disasters, high fuel costs, high rates of unemployment, etc. making people of Haiti move to the USA through a life-endangering journey in the hope of having a new and better life.

Northern triangle exodus continues

Over 541,000 of the more than two million migrants who arrived at the southern U.S. border in fiscal year 2022 (FY2022) hailed from the so-called Northern Triangle countries of El Salvador, Guatemala, and Honduras. After decades of civil war and political instability, the Northern Triangle countries have among the lowest economic output and highest homicide rates in Latin America. Criminal violence was on the rise in 2022, and El Salvador’s sudden spike in gang violence led to a sweeping government crackdown.  

Immigration backlog hits all-time high

The backlog of cases pending in U.S. immigration courts currently sits at almost two million—the most in history. From just over 186,000 cases in FY2008, the backlog began accelerating under Presidents Barack Obama and Trump before soaring during the Biden administration. Making people illegally immigrate to the USA. Legal analysts have largely attributed the surge in cases to staffing issues; the COVID-19 pandemic, which temporarily halted in-person services and processing; and a deluge of new court filings that began in late 2021. Wait times for a hearing now average almost five years, including for migrants seeking asylum or other emergency humanitarian relief. Meanwhile, the average caseload for immigration judges has grown, with some having as many as five thousand pending cases on their dockets.

Smuggling of people to the USA increases

In recent times, people have also been lured to the USA by  smuggling cartels. They lure people from unstable countries towards the USA, promising them to give them the life they dream of, to take money from them, and then traffic them to the USA. This is a cartel working in many countries, including India.  

Indians migrating to the USA

There are several push factors, such as the lack of sufficient job opportunities and economic prospects in India, that prompt individuals to seek better employment prospects abroad. Social conflicts or a lack of confidence in the governance structure in India may drive some individuals to seek a more stable environment elsewhere. The US’s reputation for offering better employment, higher wages, and career advancement acts as a significant pull factor for migrants. The enticement of quality education and prestigious academic institutions in the USA attracts students and families seeking educational opportunities. Desires to reunite with family members or relatives already settled in the USA drive some migrants to seek illegal entry for proximity to loved ones.

Europe

Europe has a long history of immigration, starting with the first immigration during prehistoric times, when people from Africa and Asia migrated to Europe during 4000-1000 BCE. Then the infamous slave trade by European colonisers like England, Spain, Portugal, etc. forced immigration during wartime to people illegally migrating to Europe for their dream, better future, and some in the hope of saving their lives.

Germany

Germany is one of the countries in Europe where immigration is a main issue nowadays. The migration flow in Germany started with the 30 Years War [1618-1648] which led to a serious reduction of the German population in some regions. After that, during WW2, many people fled Germany and many entered due to forced labour. Many people are moving to Germany to have a better European life, which is causing a crisis in Germany, especially after the border crackdown. Many Afghan migrants who fled Afghanistan amid the Taliban takeover after the USA left were now moving into Germany from Poland’s borders, along with refugees from Ukraine. After the crime spike due to immigrants, the economic burden, and the spread of Islamic terrorism, Germany is now pushing new immigration policies and planning for mass deportations. Germany has now joined hands with Italy, by shutting its doors and outsourcing its immigration crisis.

Italy

Italy is another country currently facing a tough immigration crisis. PM Georgia Meloni thinks that refugees are the problem and started a cold war with the Islamic migration by stating, “Islam is not compatible with Europe”. She also started the deportation programme and advocated the complete naval blockade as thousands of people migrated to Italy by sea. She started deporting or outsourcing the migrants through a 3rd country solution, shipping thousands of migrants to Albania as Italy processed their asylum documents.  

UK

The United Kingdom is another example of Europe’s migrant crisis, and it was one of the reasons for Brexit. Now, according to British PM Rishi Sunak, migrants are terrorising and weaponizing the streets of the UK. Britain adopted the Rwanda Policy to deal with the migrant crisis by transporting or deporting the migrants to Rwanda. This involved sealing the deal for 120 million pounds with the Rwandan government so that the UK could ship the migrants to Rwanda until their asylum application was reviewed.  

Sweden

Sweden is experiencing a gang war. In the last decade, Sweden had the lowest gun violence rates, but now it has the second highest in Europe. Sweden is facing a crisis due to its poor handling of immigration. Now, Sweden has become the gun capital of Europe, with gangs predominantly run by migrants in Sweden. Now Sweden is also joining Europe’s war with the immigration crisis.

India and its immigration crisis

India, also known as Bharat or Hindustan, was once called Aryavarta in history. The name Aryavarta is connected to the Aryan invasion theory, which 21st-century science has debunked, challenging 19th-century ideology. Recent developments suggest that people of Indian origin migrated to Europe 5,000 years ago. Additionally, archaeological findings prove that Indians were present globally, as Hindu idols have been excavated around the world, from Saudi Arabia to Mexico to Germany. This evidence supports the idea that Indians have been migrating for thousands of years. Records from the 19th century proved that Indian ethnic groups had settled their communities on almost every continent.

India is the country with the largest diaspora and one of the countries with both immigration and emigration crises, with people leaving and coming to the country at the same time, making the Indian government restless and tense.

India has the largest diaspora, with over 18 million people living outside India in 2020. Leading the world with the largest diaspora, India is facing two-way problems: firstly, with people leaving the country, and secondly, with people coming to India.

People leaving the country

This started with the immigration of the people during colonial rule, when the Britishers took Indian slaves to Western countries, including Europe, Africa, and America. Since then, people have been continuously moving out of the country. Various factors are making people move out of the country. Some of the factors are:

  • Push factors- Adverse economic conditions as a consequence of poverty, unemployment and exhaustion of resources
  • Pull factors- The factors that attract migrants towards an area are high wages, a better life, etc.
  • Socio-cultural factors-
    • Marriage- Marriage is the main factor in migration among women.  
    • Caste- Caste-based discrimination and violence are also reasons for migration.  
    • Religion- Religious discrimination and religious-based violence also cause individuals to migrate.  
  • Political factors- Political factors such as political instability, political violence, separatist movements, etc. are the reasons for the politically caused migration.
  • Environment factor- Environment factors such as natural disasters, exhaustion of resources, etc. are the reason for the migration.

Consequences of migrations

Migration has both positive and negative consequences, such as economic consequences like remittances and demographic consequences that lead to redistribution of the population in the country, etc.

Immigration laws in India

The Immigration Act of 1971 is the primary legislation governing immigration in India. This act establishes the legal framework for the entry, stay, and departure of foreigners in India, and it also provides for the establishment of the Bureau of Immigration (BOI), which is responsible for enforcing the immigration laws.

The BOI is responsible for issuing visas, permits, and other documents that allow foreigners to enter and stay in India. It also conducts background checks on visa applicants and maintains a database of all foreigners who are present in India.

The immigration laws of India are subject to regular review and amendment. In recent years, there have been a number of changes to the laws, including the introduction of a new electronic visa system and the streamlining of the visa application process.

Key features of India’s immigration laws

  • Visa requirements: Foreign nationals from most countries require a visa to enter India. Visas can be obtained from Indian diplomatic missions abroad or online through the e-Visa system.
  • Length of stay: The length of stay granted on a visa will vary depending on the purpose of the visit. Tourist visas are typically valid for 30 days, while business visas may be valid for up to 6 months.
  • Registration requirements: Foreign nationals who stay in India for more than 180 days are required to register with the local police authorities.
  • Work permits: Foreign nationals who wish to work in India must obtain a work permit. Work permits are issued by the Ministry of Labour and Employment.
  • Deportation: Foreign nationals who violate the terms of their visa or who are otherwise deemed to be a threat to national security or public order may be deported from India.

Recent changes to India’s immigration laws

In recent years, the Indian government has made a number of changes to its immigration laws. These changes include:

  • The introduction of the e-visa system: The e-Visa system allows foreign nationals from certain countries to obtain visas online.
  • The extension of the validity of tourist visas: Tourist visas are now valid for 30 days, up from the previous 10 days.
  • The introduction of a new work permit category: The new work permit category is designed to attract highly skilled foreign workers.

Challenges facing India’s immigration system

India’s immigration system faces a number of challenges, including:

  • The large number of illegal immigrants: There are an estimated 20 million illegal immigrants living in India.
  • The lack of a comprehensive immigration policy: India does not have a comprehensive immigration policy that addresses all aspects of immigration, such as illegal immigration, refugee protection, and skilled migration.
  • The need for more effective enforcement: The Indian government needs to do more to enforce its immigration laws, including deporting illegal immigrants and prosecuting employers who hire illegal workers.

Future of India’s immigration system

The future of India’s immigration system is uncertain. The Indian government is considering a number of reforms to its immigration laws, but it is unclear when or if these reforms will be implemented. It is likely that India’s immigration system will continue to evolve in the years to come, as the country seeks to balance the need for security with the need to attract foreign workers and investment. Several factors contribute to the uncertainty surrounding India’s future immigration system. One key factor is the country’s complex geopolitical landscape and its relations with neighbouring countries. India shares land borders with Pakistan, Bangladesh, Nepal, Bhutan, Myanmar, and China, presenting challenges in terms of border security and undocumented migration. Additionally, India’s strained relationship with Pakistan, in particular, has implications for cross-border movement and visa regulations.

Another factor influencing the future of India’s immigration system is the country’s economic growth and development aspirations. India has emerged as a major economic power in recent years, and the government recognises the importance of attracting foreign investment and skilled workers to sustain this growth. However, there are concerns that overly restrictive immigration policies could hinder economic competitiveness and innovation.

The Indian government has proposed a number of reforms to its immigration system in an attempt to address these challenges. One proposal involves simplifying and streamlining the visa application process, particularly for business travellers and investors. Another proposal aims to create a dedicated visa category for skilled foreign workers in sectors such as technology, healthcare, and finance. Additionally, the government has discussed plans to enhance border security and strengthen enforcement measures to combat illegal immigration.

People coming into the country 

India is facing illegal immigration from its neighbouring countries like Pakistan, Myanmar, Afghanistan, Bangladesh, and Sri Lanka. About 7,000 refugees are now settled in the northeastern states of India from Myanmar and many have migrated to India from the western border of Pakistan during partition. About 10 million people have been uprooted and migrated to India and Pakistan since 1947. People who had a fear of persecution in Pakistan are migrating to India regularly, putting a burden on the state and instilling a sense of danger and terrorism, as the relations between the two neighbours are hostile and have been marked by war and cold war continuously since independence. People of Tamil descent are also migrating to India from Sri Lanka, fearing persecution there, but they also contribute to terrorism and other crimes in India. The country is also facing the same problem as other European countries and America in solving this problem. The government is trying to bring policies to address the migration problem; one of the main steps towards this was the CAA Bill 2019, which granted citizenship to people who migrated to India from countries like Pakistan, Afghanistan, Bangladesh, and Myanmar and belonged to 6 religions, i.e., Hindu, Sikh, Parsi, Buddhist, Jain, and Christian.

Conclusion

Immigration, once seen as a reason for diversity in the world, has now become a cancer for the world and society. Indians got potatoes, tomatoes, and tobacco from immigration. The US became a superpower with the help of immigration, while Europe benefited in terms of labour, literature, art, and craft. Now, immigration often brings with it economic debt, terrorism, and security threats. Countries are taking various steps to get rid of this problem, from shipping immigrants to other countries to making a wall on the border. However, the question of how to manage immigration effectively remains unanswered.  

 References

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Retributive theory of punishment https://blog.ipleaders.in/theories-of-punishment-a-thorough-study/ https://blog.ipleaders.in/theories-of-punishment-a-thorough-study/#respond Fri, 15 Mar 2024 12:55:20 +0000 https://blog.ipleaders.in/?p=73127 This article has been written by Suryanshi Bothra. This article delves into the principles of the retributive theory of punishment. It examines its origins and critiques. The article also questions its role in shaping modern legal frameworks. The applicability of the retributive theory of punishment to the Indian legal system and prominent case laws is […]

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This article has been written by Suryanshi Bothra. This article delves into the principles of the retributive theory of punishment. It examines its origins and critiques. The article also questions its role in shaping modern legal frameworks. The applicability of the retributive theory of punishment to the Indian legal system and prominent case laws is also discussed.  

Introduction

The quest for justice since the beginning of time has sparked debates about the best course of punishment. The maximum discourse has always been on the topic of retributive punishments. This theory is rooted in the principles of ‘eye for an eye’ and ‘tooth for a tooth’. The retributive theory of punishment is believed to be extracted from the Old Testament and is considered overly harsh. Retributivism seeks to turn the crime back on the criminal. This theory is often considered synonymous with vengeance, bloodlust, revenge, retaliation, and many other negative phrases. However, the retributive theory of punishment gained popularity due to some of the major features of modern retribution. According to some, it is considered to be the theory that seeks higher moral ground. It is one of the foundational principles that laid the foundation for the legal system. This article explores all the significant aspects and principles of retributive theory. The article addresses major questions regarding the theory and brings together the perspectives of a lot of legal philosophers. 

Meaning and objective of punishment 

The most fundamental aspect of criminal law is punishment. It is essential to hold the offenders accountable for their actions. Punishments are the infliction of suffering upon the person who has committed a certain offence or has violated the law. Only the state has the authority to sanction such punishments, and this authority is derived from the law. The main goal of punishment is to deter criminals from committing further crimes. Punishments play a significant role in ensuring the well-being of society by ensuring that people abide by the laws of the country, and those who don’t abide by them are penalised. Another important objective of punishment is to provide justice to the victim. It replenishes the faith of society in the justice system.

Theories of punishment

Punishments are devised on the basis of popularly known theories of punishment. Legal philosophers for centuries have worked on theorising the forms of punishments. Countries mostly follow a combination of these theories of punishment. Different crimes warrant different kinds of punishment as prescribed by these theories. Most kinds of punishments that policymakers and judges favour can be categorised into the following theories:

Deterrent theory

The deterrent theory of punishment is a utilitarian theory based on the principles of hedonism. This theory relies on making the criminals aware that the crime is not worthwhile in proportion to the punishment. While giving the punishment, its effects on the general public are considered. One of the major problems with the theory is that if the punishment is too lenient, it does nothing to prevent crime. On the other hand, if the punishment is excessively harsh, it will only gather the public’s sympathy. It can be observed that even a death sentence has failed to deter the most heinous crimes. 

Restorative theory

This theory of punishment focuses primarily on repairing the harm caused by offenders. It is a victim-centred approach to punishment. It provides the victims with a voice, where the victim and the offender come together to assess the harm done and find the solution. Society, the victim, and the community become active participants in the conflict resolution process. It is based on the ideas of reparation, healing, and reconciliation. The offenders are given an opportunity to make amends. Plea bargaining, probation, and parole are all excellent examples of the application of the theory of restorative punishment.  

Preventive theory

This theory of punishment aims to dissuade criminals from committing crimes in the future. It relies on transforming the criminal permanently, or at least temporarily. Many utilitarian philosophers like Bentham, Mill, and Austin, supported the preventive theory due to its humanising nature. This form of punishment strongly relies on the fact that society could be improved if the criminal is unable to commit the crime. Disablement can be achieved through various methods, including by giving the offenders jail time and reforming them. However, incarceration is the most popular and practised form of preventative punishment.

Retributive theory

People who support the retributive theory of punishment support the consequentialist theories. This theory is built on the bedrock of revenge. In this form of punishment, the offender must be responsible for the act for which he is held liable. The theory allows defences of insanity and intellectual disability. Mens rea, or guilty conscience, is considered the deciding factor. If a person possesses criminal intent, they are exempt from punishment. These are reasons why its supporters believe that this theory is rooted in fairness and justice. However, its critics call it barbaric due to their moral objections to the concept of revenge.

Reformative theory

The aim of reformative punishments is to transform criminals into law-abiding citizens. This theory is centred around individualism. The idea of reformative justice can be observed in the Juvenile Justice (Care and Protection of Children) Act, 2015. Probation, parole, and indeterminate sentences are all critical aspects of the reformative theory of punishment. The Indian Penal Code (1860) also allows for the commutation of sentences based on certain requirements. In the case of habitual criminals, this theory is not applicable. Most victims consider this approach unfair since it is very offender-centric. People believe that, in many cases, this theory of punishment fails to deliver justice.

Comparison between different theories of punishment

Aspect

Retributive

Deterrent 

Reformative

Restorative

Focus

This theory focuses on proportional punishment for the crime. 

This theory focuses on the prevention of future crimes through deterrence. 

This theory focuses on reforming the convicts and rehabilitating them.  

This theory focuses on repairing the harm and restoring their relationships.

Purpose

It satisfies the moral demands for justice and punishment.

It discourages potential offenders. 

It addresses the root causes of the crime. It reintegrates the convicts into society. 

This theory promotes accountability. It warrants healing and dialogue between parties.

Approach to punishment

The punishment is proportional to the crime committed. 

It is a tool to deter others from committing the same crimes.

It focuses on education and reformation. 

This form of punishment focuses on community involvement and restitution. 

Advantages

This provides justice to the victims. There are clear guidelines and moral justifications. 

There is flexibility in punishment, which has a preventive effect on society. 

It is a more humanitarian approach to punishment. It reduces the rate of relapsing into a life of crime. 

This approach reduces hostility and focuses more on healing. 

Disadvantages

It has moral and ethical implications. It lacks rehabilitation.

It creates the potential for injustice. It works on the principle that people will make rational decisions.

It has the potential for leniency, and there is no guarantee for the desired results. 

It is quite time-consuming and does not suit all types of offenders and offences. 

What is retributive theory of punishment

The retributive theory of punishment relies on the foundation that crimes have consequences, and the consequences should be proportional to the crime of the individual. Immanuel Kant was one of the biggest advocates of retributive punishment and provided multiple practical aspects of its application. He is the most extensively read author on retributive theory. His books described retributivism as providing punishment to the offender just because the criminal deserves it. This fundamental aspect of retributivism is considered both its strength and weakness. 

Retributive theory emphasises that since crime is a negation of rights, the punishment cancels the crime. Punishment is merely the negation of the negation. It can also be termed as two wrongs to restore a right. The Doctrine of Correctional Vengeance gives the basic idea of retributive theory. This doctrine states that when society, trying to get justice, demands the authorities to inflict revengeful punishments on criminals to get justice for the victims, it is said to exhibit correctional vengeance. 

The retributive theory of punishment has consistently refrained from justifying the punishment of the innocent. In contrast to other theories, it does not employ offenders to achieve additional objectives, such as serving as a deterrent or setting an example.The only goal is to provide justice to the victim and punish the offender for the wrongs they have committed. The severity of the punishment is decided on a proportionate basis. The punishment is equivalent to the moral liability or blameworthiness of the offender. This theory provides a clear way of distinguishing who deserves punishment and who doesn’t. Punishment, therefore, is only given based on guilt. Retributive punishment acts as a strong deterrent. It helps in giving moral justice to the victim. It instils a feeling of trust within society towards the judiciary.

Origin and basis of retributive theory of punishment

Retribution, one of the oldest concepts in moral philosophy, is prominently featured in various religious texts. Within Christianity, numerous references to punishment for wrongdoing can be found, with the belief that sinners will face consequences for their actions in the afterlife. Hindus and Jains attribute retribution to ‘Karma’. The earliest application of retributive theory can be observed in “Mahabharata”. It has several instances with very good examples of how retributive punishment should be inflicted. Arjun was about to leave the battlefield during the war. He was too scared and had moral objections to go against his relatives. Lord Krishna conveyed to Arjuna that war should only be resorted to when all other paths are closed. Krishna explained that if, in such circumstances, an individual refuses to fight, it would result in grave injustice to society as a whole.  

Further, the Quran discusses retribution in the form of punishment for the wicked and disobedient. The Islamic rulers of India were the ones who introduced Islamic law. Theft, adultery, murder, and all heinous offences warrant grave punishments under Sharia law. Punishments like amputation of limbs, beheading, and stoning were prescribed. The objectives of all such punishments were rooted in the principles of delivering justice to the aggrieved. 

Paranjape, in his book titled, ‘Criminology, Penology, and ‘Studies in Jurisprudence and Legal Theory, talks about various theories of punishment. In the book, he explained the retributive theory of punishment as a theory emphasising that the pain proportional to the pain of the victim should be inflicted on the offender. 

In 1901 C.E., a French explorer found a set of inscriptions at Susa. This code, with around 282 laws, was enacted by Hammurabi. He was a Babylonian king and enacted one of the oldest complete legal codes. The code had provisions that, if a person causes a man of rank to lose his limb, let the limb of the offender be shattered. Similar philosophies were applied to the eyes and teeth. However, the codes dictated that the injuries of a poor man could be compensated with silver. His principle was based on equal and direct retribution and was governed by the state. 

Cesare Beccaria, an Italian criminologist, is known for his authorship of multiple books on crime and punishment. In contrast to other authors who emphasised the principle of lex talionis, Beccaria focused more on retribution or revenge. From the 1970s onward, legal scholars, philosophers, state courts, and the supreme courts across the world saw a huge rise in the popularity of the retributive theory of punishment. Over the years, retributive theory has manifested itself in various legislation and Supreme Court judgements in the form of severe punishments and the death penalty.

Lex talionis and retributive theory

Lex talionis, in Latin, means the law of retaliation. It is often expressed under the motto, “Let the punishment fit the crime.” In ancient Rome and Palestine, bodily harm, injury, and theft were considered private wrongs. As such, the matter was settled between the victim and the wrongdoer. It was usually done without the involvement of the state. According to this principle, talion was the ultimate satisfaction the injured person could demand. This could be an eye for an eye or money. The vengeance-based forms of lex talionis have been severely criticised. It potentially begins an endless cycle of hurt and violence. 

Principles of retributive theory of punishment

H.L.A. Hart was a legal professional and philosopher. He gave new insights into the retributive theory of punishment. He believed that the existing theorists who wrote on retributive punishment did not emphasise some crucial elements of the theory. Therefore, he proposed a theory in which he emphasised three principles. Desert is considered the fourth principle of retribution. All different variants of the retributive theory are formulated using these three principles as the foundation. Variations and amendments to these principles are used to create the theory. Those three principles are as follows:

Principle of responsibility

The principle of responsibility indicates that a person may only be punished if he/she has voluntarily done something wrong. According to the retributive theory of punishment, a guilty mind and a guilty conscience are essential. In short, the person will only be eligible for punishment if they are guilty of the act. These principles provided by Hart are not exclusive to retributive theory. They apply to almost all theories of punishment, just in a different way and with different objectives. This principle provides an answer to the question, “What sort of conduct may be punished?” However, these principles raise a very important question when talking about responsibility. What would be the stance of the retributive theory of punishment in cases of strict liability offences? Strict liability, according to tort and criminal law, is an offence when the defendant is guilty of committing an action regardless of the intent to cause harm. Retributive punishment theories, however, fail to provide solutions to the question of strict liability. 

Principle of proportionality 

The punishment for an offence should either be equivalent to or match the intensity of the offence. Retributive punishment embodies the idea of something being paid back by the wrongdoer. This principle provides an answer to the question, ”How severely?” It must be similar to the crimes committed against the victim. It relies heavily on the concepts of punitive harm, deprivation, and suffering. Some philosophers and legal writers have suggested a few modifications to the principles of Hart. One suggested modification is that punishment under this theory will only be valid if it causes harm to the offender.

Principle of just requital 

This principle of retributive theory addresses the question of why punishment is essential. It offers a rationale for penalising the offender. It asserts that punishment rectifies the moral wrongs committed by the criminal. Proponents of retributivism say that punishment rights moral evils, therefore it is morally good. This principle advocates for the victims. It says that the victims are entitled to see the wrongdoer getting punished. Non-retributivists generally oppose this aspect of the theory, as they argue that two wrongs do not make a right.

Desert

This concept focuses on culpable acts and omissions. The principle states that punishment may be imposed for the person’s bad faith, fraud, or wilful misconduct in carrying out his obligations. Hart’s model discussed above omits the principles of the desert. Some legal philosophers claim that even though Hart does not explicitly talk about the concept of desert, it can be observed in his first principle of responsibility. The desert can be seen as an additional fundamental principle of retributive justice. Desert, in a sense, is a moral concept. It can be analysed as a relation between the person who deserves something, what they deserve, and in what virtue. Some models that include the concept of desert categorise it into three specific categories based on the questions they answer. They are the desert object, the desert subject, and the desert basis. The concept of the desert also talks about who can appropriately give the desert subjects what they deserve. They can be referred to as desert agents. Let’s dive a little deeper into all the aspects of the desert. 

Desert subject

In the retributive theory of punishment, it is fairly easy to determine the subject of the desert. It is simply the wrongdoer. The problem arises when the offender is either a child or an insane adult. Similar problems arise in cases where the offenders are entities like the state or corporations. In the above-mentioned cases, it is questionable if the party being punished can understand that they are being condemned. Small children and insane people cannot understand the harm caused by them and its consequences.  

Desert object

Desert object helps us answer the question of what crime deserves what punishment. It can help us categorise different punishments for different wrongs. Retributivism claims that it is unjust to punish the wrongdoer more harshly than is deserved. Disproportionate punishments are wrong for both the criminal and the victim. It is equated with punishing an innocent person. Concepts like plea bargaining are not usually entertained by retributivists.  

Desert basis

The desert basis deals with the relevant kinds of wrong that can be punished under retributive theory. This discusses two important questions of the retributive theory. Murders and rapes are grave offences. Punishments for them can be defined; however, what would constitute an attempt is debated. In cases where the mental state of the offenders is less culpable, the punishment becomes less obvious. The retributive theory of punishment allows punishments for harms that are not caused only by moral wrongs. 

Types of retributivism

There are a considerably large number of variations in retributive theory. These different types have very minute differences.

Negative and positive retributivism 

Negative or weak retributivism asserts that based on the crime, the wrongdoer must not be punished more than the wrongdoer deserves. Positive or strong retributivism claims the opposite. It emphasises the fullest extent of punishment on the basis of the offender’s just deserts.

Moralistic and legalistic retributivism 

Different versions of retributive theory also differ on the basis of what the punishment is imposed for. In moralistic retributivism, moral culpability is considered central. It makes offences punishable even if they do not amount to a violation of the law. On the other hand, legalistic retributivism punishes the violation of a law even if there is no moral wrongdoing. There is also a combined version of these two variations of retributive theory. In this context, morally culpable offences as well as violations of criminal law are necessary individually for the justification of punishment.

Communicative and consequentialist retributivism

Communicative retributivism is yet another approach to retributive theory. This variation holds some scepticism over harsh treatments. Its core idea is to express strong disapproval of wrongdoing. It is often considered the default position of retributivists. Consequentialist retributivism also exists, which is quite different from regular retributivism. It is based on conceptual and logical consequences. Limiting retributivism limits the constraints of proportionality. Comparative proportionality is one of the major factors that determine the punishment for a crime. 

Deterrent Retributivism

Retribution is not primarily focused on deterrence. However, the public spectacle created by retributive punishment may act as a deterrent for potential offenders. The idea is that witnessing the offender face the consequences of his/her actions discourages others from engaging in similar criminal behaviour. Retributive punishments reinforce the shared values of the community by punishing individuals who violate moral principles and societal norms. Ensuring that offenders face the consequences of their crimes and retribution seeks to provide justice to victims in that form. Holding perpetrators accountable restores the confidence of the victims in the system. This encourages the victims to report crimes and cooperate with law enforcement. All of these indirectly contribute to crime reduction. 

Retributive theory of punishment in India

In ancient India, punishment philosophies were primarily focused on rehabilitation and reformation. It has emphasised the importance of moral and ethical principles in changing criminal behaviour rather than retribution. British colonialism saw a shift towards a more punitive and disciplinary approach. However, in recent years, holistic and restorative approaches to punishment have been gaining recognition. Overall, an interplay between historical, cultural, and social factors is reflected in the growth of punishment philosophies in India. Indian public attitudes towards crime and justice have significantly changed with the spread of social media. 

Despite the shift to preventive and reformative theories of punishment, glimpses of the application of the retributive theory of punishment are visible in the legislation as well as landmark cases in India. The penalties are proportionate to the severity of the crime. Indian courts, while sentencing consider both the crime and the criminal. An approach that takes into account all the various factors and circumstances leading up to the crime. Close attention is paid to the criminal’s social and economic circumstances. It is ensured that the sentences are just. It is usually tailored to the specific circumstances of the case. This aligns with the retributive principles of punishment. The punishment corresponds to the seriousness of the wrongdoing. 

Death penalty in India is retained for only heinous offences. Death penalties are guided by the principles of proportionality. Hence, they are often discussed in the context of retribution. The supporters of this theory argue that for the most heinous crimes, it is the only just punishment. In India, judges have certain discretion when giving out sentences, which allows them the liberty to decide on the punishment while staying within the ambit of the punishment prescribed according to the legislation. However, the checks and balances, as well as the appeals system, ensure that discretion is exercised judiciously. It is ensured, according to the retributive principles, that the punishment is neither too lenient nor excessively harsh.

Let’s look at a few landmark cases to understand the application of retributive principles in India.

In Anwar Ahmad v. State of Uttar Pradesh and Anr. (1975) before the trial and conviction, the convict had already undergone a six-month imprisonment term. Later, he was officially sentenced to six months in prison. The Court held that it was not necessary to sentence him again since the required ‘blemish’ had already been imposed upon him. Following the principle of retributive punishment, the court reasoned that it would inflict a very big loss on the family as well. The principle of proportionality was enforced in this judgement. 

In Sri Ashim Dutta Alias Nilu v. State of West Bengal (1998), the application of both deterrent and retributive punishment was observed. It was done to prevent the recurrence of the offence. Rapid societal progress and increased advancement in science and technology have led to a change in the outlook of people towards punishment. Due to an increase in literacy rates people have started thinking differently about punishments. Experts in different branches of knowledge have been trying to understand the nuances of the theory. The retributive theory of an eye for an eye and a tooth for a tooth is no longer considered the correct approach. 

The Delhi gang rape and murder case (2012) is another great example of the application of the retributive theory of punishment. The case is a tragic and notorious incident that sparked widespread outrage among the Indian population. Every discussion about retributive punishment in India discusses this case. In this Supreme Court judgement, four out of six felons were sentenced and hanged. Retributive punishment was given to the convicts involved in the extremely heinous Nirbhaya case. This judgement was much awaited and celebrated by society.

However, after such judgements, jurists and policymakers in India questioned whether retributive punishments like the death penalty really are the best ways to deal with crime. The 262nd report of the Law Commission of India, chaired by Justice A.P. Shah, discussed the death penalty in 2015. The commission concluded that India should make its first move towards the abolition of the death penalty. The commission claimed that there is no justification for treating terrorism differently from other cases. The commission discussed the concerns of lawmakers in mind. They debated the abolition of the death penalty for terrorism-related offences and waging war. Therefore, the commission suggested the abolition of the death penalty for all offences other than terrorism-related offences. 

Criticism of retributive theory of punishment 

The main criticism of this theory is that punishment per se is not a remedy for the crime of the offender. Critics say that it just aggravates the mischief. Society sees punishment in itself as an evil curing evil. The only reason it is justified is the faith that it yields better results. The application of the retributive principle is filled with inconsistencies within the legal system. 

Retributivism is quite often criticised because it fails to consider the specific circumstances surrounding a crime. Sometimes giving the eye for an eye punishment defeats the purpose of the punishment. Let’s take an example, What would be the punishment if a person raped someone? Capital punishments are given as a retributive measure. In this case, the basic principle of retribution suggests we give the person back what he did, i.e., sex. However, it would probably be more pleasurable for a criminal than torture for him. The root causes of crime often go unnoticed because retributive punishments focus on punishing past offences.

This theory leads to society developing feelings of vengeance. This is followed by destructive tendencies. This raises ethical questions regarding the motivations behind punishment. Revenge is like wild justice. Critics argue that the retributive principle may help enforce the rule of the jungle but cannot ensure the rule of law in a civil society. Sometimes the punishments become disproportionate to the grievousness of the crime. 

Consequences of a shift to retributive theory of punishment

There was a comparative study undertaken to compare the outcomes of retributive punishment and rehabilitative punishment. They examined the Tihar Jail in India and Halden Prison in Norway. This study objectively compares the jails, conditions, infrastructure, and treatment of prisoners. The study concluded that the Norwegian system was better. Norway focuses on the social and moral rehabilitation of offenders, while Indian prison systems are understaffed and the offenders are subject to bad treatment. The rate of convicts who go back to a life of crime in Norway is much less than in India.  

Countries like the United States of America, Saudi Arabia, Brazil, India, and the United Kingdom all have aspects of the retributive theory of punishment in their legal systems. There are also disparities in sentencing based on race, socioeconomic status, and political influence. In the states, African Americans, Hispanics and Mexicans are much more likely to get higher sentences. Due to the private prison system, the principles of retributive theory have been applied more often than necessary. The incarceration rates have increased exponentially. In Sudan, a man’s hand was amputated for theft.  These raise multiple human rights and ethical considerations. Countries like Brazil and India have problems with overcrowded prisons due to a retributive approach. This puts a strain on the prison facilities, and there isn’t sufficient investment in rehabilitation. This leads to convicts relapsing their way into the prison system again.

Conclusion 

In conclusion, the retributive theory of punishment stands as a significant philosophy within the realm of criminal justice. It has endured the test of time and has still managed to hold its significance. Retribution has played a central role in the creation of legal systems around the world. It influences societal attitudes towards justice. However, the retributive theory has its challenges and criticisms. Moral scepticism and concerns about potential errors have always been at the forefront of debates. The irreversibility of punitive measures such as the death penalty forces the sentence to make sure that the right person is convicted. Moreover, retributive theory coexists in a dynamic landscape. This landscape is filled with multiple opinions on justice. Philosophers, legislators and legal professionals have had differing opinions on utilitarianism, rehabilitative approaches, and human rights principles. 

With evolving societies, the discourse surrounding the effectiveness of retribution has come into question. A detailed understanding of all the different theories of punishment helps create a balanced approach to punishment. Striking the right balance between retribution, deterrence, and rehabilitation can help reform the criminal justice system. Societal protection remains a challenge for all parties involved in law-making and law enforcement. Whether retribution maintains its prominence and adapts to the changing requirements of the era is questionable.

Frequently Asked Questions (FAQs) 

What is an example of the retributive theory of punishment?

Eye for an eye, tooth for tooth, and life for life are all animation examples of the retributive theory of punishment. Modern-day capital punishment can be seen as the best example of the same. In countries like Sudan, Saudi Arabia, and many others that follow Islamic law, retributive theory is still followed. Amputations, stoning, and death remain common punishments.  

What are the characteristics of retributivism?

The principles of responsibility, proportionality, just requital, and desert are the main pillars of retributivism. 

What is the difference between the retributive theory of justice and Lex talionis?

The retributive theory of punishment is a moral and philosophical theory that provides proportionate punishment based on the crime committed by the offender. Lex talionis is an ancient theory that advocates mirror punishment. It literally states, “eye for an eye” and “tooth for a tooth”. Whatever harm is caused by the offender, the same harm should be inflicted upon him/her. 

References 

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How to get Indian citizenship https://blog.ipleaders.in/how-to-get-indian-citizenship/ https://blog.ipleaders.in/how-to-get-indian-citizenship/#respond Fri, 15 Mar 2024 11:18:14 +0000 https://blog.ipleaders.in/?p=120233 This article has been written by Ashutosh. This is an exhaustive article which deals with how to get an Indian Citizenship, and it focuses on all the aspects of getting an Indian Citizenship. Other than that, this article widely covers information about the various ways and steps through which Indian Citizenship can be obtained, terminated, […]

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This article has been written by Ashutosh. This is an exhaustive article which deals with how to get an Indian Citizenship, and it focuses on all the aspects of getting an Indian Citizenship. Other than that, this article widely covers information about the various ways and steps through which Indian Citizenship can be obtained, terminated, designated, etc.

Introduction 

Are you someone who wants to get Indian Citizenship and want to permanently shift to India to carry on your business or to pursue your dreams in the land of vast resources and opportunities? Then don’t worry, we have got your back and you have landed at the right place. 

Indian citizenship can be obtained in various ways such as by birth, by descent, by naturalisation etc. and the Ministry of Home Affairs is the body which deals with the matter of granting Indian Citizenship to non-residents of India. Foreigners can get Indian Citizenship under Section 5 and Section 6 of the Indian Citizenship Act, 1955 if they fulfil all the eligibility criteria and have all the required documents with them. Read the whole article to get all the insights about getting Indian Citizenship.

What is the Citizenship Act, 1955

People seeking to get Indian citizenship must have a brief knowledge of the Citizenship Act 1955 (hereinafter referred to as the Citizenship Act). The Citizenship Act 1955 is an Act that provides all kinds of rights and duties to an Indian citizen. 

This Act makes sure that all the individuals of the country hold a position as an Indian National. (hereinafter referred to as the Citizenship Act) it consists of 19 sections and each section has its importance in providing Indian Citizenship. 

Brief introduction of Indian Nationality Law

The Indian Nationality Law talks about the conditions through which a person holds Citizenship of India. Under this law, there are two main pieces of legislation which govern all the essential requirements to get Indian Citizenship and those two legislations are the Citizenship Act and the Indian Constitution.

Under the Section 3 of the Indian Nationality law, all the individuals who were born in India between the period of January 26th and July 1st 1987 were automatically granted Indian Citizenship by virtue of their birth no matter what the nationalities of their parents were. All the individuals who were born between the period of July 1st 1987 and December 3rd 2004 were granted the Citizenship of India only if any of the parents was a citizen of India. But all the persons who are born in India after this period have received the Citizenship of India during their birth only when both the parents are citizens of India, or only if one of the parents is an Indian Citizen and the other one is not an illegal migrant. 

According to the Indian Nationality Law, foreigners are also entitled to get the Citizenship of India through the process of Naturalisation, if they stay in India for 12 years and if they renounce their previous nationalities. Some of the minority communities from the neighbouring countries of India such as Bangladesh and Pakistan have received a reduced requirement, that is those people belonging to minority communities can avail of the Citizenship of India if they stay in India for 6 years.

Foreigners can also get an Indian Citizenship through registration by applying an online application form under their category form, available on the website of the Ministry of Home Affairs.  We will be dealing in detail with all the ways through which Indian Citizenship can be obtained further in this article, so keep reading this article till the very end if you want to know more about it. 

Difference between Citizenship and Nationality

Nationality and Citizenship are two different words with completely different meanings. The main difference between Citizenship and Nationality is that nationality indicates the ancestral place of birth of an individual (the place in which a person is born). On the other hand, Citizenship indicates the place of registration. 

An individual can not have more than one nationality but an Individual can become a citizen of more than one country.

What is Indian citizenship

Indian Citizenship simply means the relation of an Individual with India, and legally speaking, Indian Citizenship provides recognition to an individual of the right to vote, to be a member of the polity of India, to seek public office, and to enjoy all kinds of rights guaranteed under the Constitution of India. 

The Citizenship Act in India along with all its amendments gives a clear picture and the legal understanding of the Indian Citizenship and also of its acquisition, resumption, cessation and delineation. On a simpler note, Indian Citizenship provides all kinds of responsibilities and rights to its citizens such as a passport, access to all kinds of social welfare schemes, etc. Thus, it provides a legal status to all its citizens.

Provisions pertaining to citizenship in Part II of the Indian Constitution

Article 5 to Article 11 of the Indian Constitution talks about the concept of Citizenship. 

  • Article 5– This Article talks about the citizenship of those people who were citizens of India during the commencement of the constitution (26th January 1950). Under this Article citizenship is provided to those people who have their domicile in India and-
  1. who was born in India, 
  2. whose either of the parents were born in India
  • Article 6– This Article talks about the citizenship of those persons who have migrated from Pakistan during the commencement of the Constitution.
  • Article 7–  This Article deals with the rights of those people who had migrated to Pakistan after 1st March, 1947 but later came back to India.
  • Article 8– This Article talks about the citizenship of those persons who live outside India
  • Article 9– This Article talks about how people who voluntarily acquire citizenship in any other country will not be considered Indian citizens.
  • Article 10- Any individual who is considered an Indian citizen under any of the provisions of this part will continue to be an Indian citizen. 
  • Article 11- This Article talks about the right of parliament to regulate the right of citizenship by Law.

What are the benefits of Indian Citizenship

There are multiple benefits of getting Indian Citizenship, and some of the major benefits of getting Indian Citizenship is mentioned below.

  1. Job Opportunities– The citizens of India get unrestricted access to all the employment sectors in India, and also to all the governmental positions and various public services that are limited only to Indian citizens.
  2. Voting Rights– All the citizens of India have a legal right to participate in all kinds of democratic voting processes, by voting in any state, national and local elections happening in India.
  3. Right to own property– The citizens of India have an exclusive right to deal with their property. They can sell, hold, and transfer their property according to their will, no restrictions can be placed upon them.
  4. Benefits of Social Security– All the citizens of India have ultimate access to all kinds of social schemes which are being run by the Indian Government for the benefit of their citizens.  
  5. Legal Protections– The citizens of India get access to all kinds of legal protections and constitutional rights. Such as the right to freedom of speech, right to equality and right to personal liberty.
  6. Holding Public Office– All citizens with Indian citizenship have a right to political representation and stand for public office positions.
  7. Cultural Connection– The citizens of India have a right to explore Indian culture and feel a sense of connection with the culture, traditions, history and heritage of India.

How can Indian citizenship be acquired

There are multiple ways through which Indian Citizenship is granted under the provisions of the Indian Citizenship Act, of 1955, such as:

  1. Indian Citizenship is granted by Birth under Section 3 
  2. Indian Citizenship granted by Descent under Section 4
  3. Indian Citizenship granted by Registration under Section 5(1)
  4. Indian Citizenship is granted by Registration under section 5(4) (minors)
  5. Indian Citizenship is granted by Naturalisation under Section 6
  6. Indian Citizenship granted by the Corporation of Territory under Section 7

Now let us understand all these sections in detail, further in this article.

Indian Citizenship by birth

Section 3 of the Indian Citizenship Act, of 1955 deals with the categories under which individuals are considered as citizens of India by birth. So section 3 of the Indian Citizenship Act provides that.

  • Any individual who is born in India between the period of January 26th 1950, and July 1st, 1987 will be considered a citizen of India by birth. Even if the parents of the child are not Indian nationals the child can still be considered as an Indian Citizen.
  • Any individual who is born in India between the period of July 1st 1987, and December 3rd 2004, will be considered an Indian Citizen by birth if any of his parents is an Indian National during the time of birth. It is not necessary for both parents to be of Indian Origin if the child is born during this period.
  • Any individual who is born in India on or after the period December 3rd 2004, will be considered a Citizen of India only if both the parents of such child are an Indian national, Or if one of the parents is an Indian National and the other one is not an illegal migrant.

Please Note

According to Section 2(1)(b) of the Citizenship Act,  any foreigner who enters the premises of India without a valid passport ID and other valid travel documents is considered an illegal migrant. Also, those persons who have all the valid documents and Passport IDs but stay in India for more than the permitted period are also considered as illegal migrants.

Tabular Representation of Section 3 of Indian Citizenship Act, 1955

Date of BirthPlace of BirthConditions required
Born between the period of 26.01.1950 and the period of 01.07.1987IndiaNo required conditions other than is required
Born between the period of 01.07.1987 and the period of 03.12.2004India Either the parent of such a child should be an Indian National during the time of birth
Born between the period of on or after 3rd December 2004India Both the parents of such a child should be an Indian National at the time of birth.                 OrIf not, then one of the parents should be an Indian National and the other one should not be an illegal migrant during the time of birth.

Indian citizenship by descent 

Section 4 of the Indian Citizenship Act, of 1955 deals with the categories under which individuals are considered as the citizens of India by Descent. Section 4 of the Indian Citizenship Act provides that.

  • Any individual who is born outside the premises of India on or after January 26th 1950 but before the period of December 10th 1992, will be considered an Indian National by Descent only if the father of such individual was an Indian National by birth during the period of his child’s birth. In case the father of such a person was also an Indian citizen through Descent only then in such cases that person not be considered as an Indian citizen. But if the birth of such a person was registered with an Indian Consulate (office of a consul) within one year from the date of his birth or if there was permission by the end of Central Government, after the expiry of the given period then in such cases it will be applicable.
  • Any individual who is born outside the premises of India on or after December 10th 1992, but before the period of December 3rd 2004, will be considered an Indian National by Descent if any of his parents were a citizen of India by birth during the period of his birth. But in case any of the parents of such an individual were a citizen of India by Descent and not by birth then such a person will not be considered an Indian National, until and unless the birth of such a person was registered with an Indian Consulate within one year from the date of his birth or if there was a permission by the end of Central Government, after the expiry of the given period.
  • Any individual who is born outside the premises of India on or after December 3rd 2004, will not be considered an Indian Citizen, unless any of the parents of such child declare that their child (minor) does not hold a passport of any other nation and his birth is also registered with an Indian Consulate within one year from the date of his birth or if there was a permission by the end of Central Government, after the expiry of the given period.

Please Note

The parents of such a child will have to give an undertaking in writing, stating that their minor child does not hold a passport from any other country. And the applications for such kind of registration of birth have to be made in Form 1. 

Tabular Representation of Section 4 of Indian Citizenship Act, 1955

Date of BirthPlace of BirthConditions required
Born between the period of 26.01.1950 and 10.12.1992Outside the premises of IndiaFather should be an Indian National by birth.
If the father is also an Indian National by descent, then the birth of the child should be registered with an Indian consulate within the duration of one year from the time of birth.
Born between the period of 10.12.1992 and 03.12.2004Outside the premises of India Any of the parents should be Indian nationals by birth.
But if the parents were also an Indian National by Descent then the birth of the child should be registered with an Indian consulate within the duration of one year from the time of birth.
Born on r after the period of 03.12.2004Outside the premises of IndiaA written declaration by the parents should be submitted stating that the minor does not hold a passport from any other country.
The birth of their child is registered with an Indian consulate within a duration of one year from the time of birth

Indian citizenship by registration under Section (5 (1))

Section 5 of the Indian Citizenship Act deals with various categories of people (not illegal migrants) who can be registered as Indian Citizens through the process of registration.

  • Any individual who is of Indian origin and has been living in India for more than seven years before making the application in Form I under section 5 (1) (a) of the Citizenship Act.
  • Any individual who is of Indian origin, but is a resident in any other nation or place outside the premises of undivided India under section 5 (1) (b). And individuals who are married to an Indian citizen, who has ordinarily lived in India for seven years before filling out an application under section 5 (1) (c). In such cases, the application must be filed in Form II. 
  • A minor child whose both parents are of Indian origin under section 5 (1) (d). In such cases, the application has to be made by the parents under Form III.
  • Individuals who are of full age and both their parents are of Indian origin under section 5 (1) (a) or 6 (1), those individuals can obtain the citizenship of India under Section 5(1) (e). In such cases, the application should be filed in Form III-A.
  • Any individual who is of full age and any of the parents of such individual were a citizen of Independent India and lived in India for one year before filing the application under Section 5 (1) (f). Here the application shall be filed in Form III- B.
  • Any individual who has obtained full age and has also been registered as an OCI (which means Overseas Citizen of India) for a period of 5 years just before filing an application under section 5(1) (g). Here the application should be filed in Form III-C

Please Note

Only those persons are considered as people of Indian origin, who themselves or any of their parents were born in undivided India or in any other territory which later became part of India after the period of 15th August 1947.

Tabular representation of Section 5 (1) of the Indian Citizenship Act, 1955

SectionPersons who can apply
Section 5 (1) (a)Any adult Foreigner who or any of his parents were born in undivided India and the applicant is also ordinarily an Indian citizen for the duration of seven years before filing his application form for registration
Section 5 (1) (c) Any adult foreigner who has married an Indian citizen and has lived for seven years in India before filing his application form for registration
Section 5 (1) (d)A minor child having both parents of Indian origin
Section 5 (1) (e)Any adult foreign individual whose parents are registered as Indian citizens under section 5(1) (a) or section 6(1)
Section 5 (1) (f)Any adult foreign individual who was a citizen of India, or any of his parents were a citizen of India, and have lived in India for one year before filing his application form for registration.
Section 5 (1) (g) Any foreigner who is an adult and has been registered as an Overseas Citizen of India for at least 5 years or more and such person has also lived in India for one year before filing his application

Indian citizenship by registration under Section (5 (4))

According to Section 5(4) of the Citizenship Act any minor child can become a registered citizen of India If the Central Government feels that there are special circumstances which justify the registration of such minor child. Under this scenario, each case is considered on the basis of merits, and applications under this category are made in Form IV.

Indian citizenship by naturalization 

Section 6 of the Indian Citizenship Act, 1955 provides that any foreigner who is not an illegal migrant and has lived in India for a period of 12 years can be registered as an Indian citizen through the process of naturalisation. 

Such individuals should have been living in India for more than one year immediately preceding the application date and for the duration of 11 years in the aggregate in the 14 years preceding the duration of 12 months. Such individuals shall also fulfil other necessary qualifications as mentioned in the Third Schedule of the Indian Citizenship Act, 1955.

Indian citizenship by incorporation of territory

Section 7 of the Indian Citizenship Act, 1955 states that if any territory comes under India or becomes its part, then the Central Government may, by an official order mention the persons who shall be considered as Indian citizens because of their relation with that particular territory. And those parents shall also be considered as Indian Citizens from the date that is specified in the order.

Frequently Asked Questions on acquiring Indian citizenship 

These are some of the most commonly asked questions with regard to the ways through which Indian citizenship can be acquired.

What are the different ways of acquiring Indian Citizenship?

Indian Citizenship can be acquired through birth, descent, registration, naturalisation, and incorporation of territory.

Can a foreigner become an Indian citizen?

Yes, a foreigner can also acquire the citizenship of India through the process of naturalisation. If he is not an illegal migrant.

Can a foreigner acquire Indian citizenship through marriage?

Yes, a foreigner who has married an Indian citizen and has also stayed in India for a period of seven years can acquire Indian citizenship.

Can a minor child be registered as an Indian Citizen?

Yes, if the Central government feels that there are certain circumstances which justify granting of citizenship to the minor child.

User guide to applying for Indian citizenship 

Here is a very simple yet very useful user guide along with a visual representation for all the individuals who want to apply for Indian Citizenship.

Step 1– Open the browser and visit the official website of the Foreigners division of the Ministry of Home Affairs. Tap here to visit the website. Once the candidate taps on this link you will get to see a window like this.

Figure 1- Home page of the Foreigners division of the Ministry of Home Affairs.

Step 2– Once the candidate reaches the above window, he needs to find and locate the category option and under which section of the Indian Citizenship Act, 1955  he fulfils all the eligibility criteria. Once a candidate finds the section which is suitable for him he needs to tap on it.  In the below given image for a better explanation, we have chosen section 5 (1) (a).

Figure 2- Page showing the registration option for citizens eligible under section 5(1) (A) of the Citizenship Act.

Step 3– After landing on this page, click on the link of eligibility criteria to check all the eligibility criteria. Once done tap on the link of eligibility criteria and this window will appear. 

Figure 3- Eligibility criteria under section 5 (1) (A) of the citizenship act

Step 4- After checking the eligibility criteria, tap on the link of required documents to check the list of all essential documents which will be required in this process. Once done, tap on the link and a list of all the documents will appear on your screen.

Figure 4- List of the required documents under section 5 (1) (A) of the Citizenship Act.

Step 5– Once the candidate is done checking all the eligibility criteria and documents, he needs to proceed to check whether his category falls in the passport details exemption category. And then a screen like this will appear.

Figure 5- Image showing the list of passport details exemption.

Step 6– Now we have to move forward with the application part. If the candidate wishes to apply online for his citizenship then he must tap on the apply online option. Which is presented just below the passport details. Once done tap on the link to apply online and the applicant will be redirected to this page.

Here the candidate will be provided with a temporary application ID. All the applicants must note their temporary application ID. The candidate has to fill up all the details on this page such as father details, mother details, spouse details and several other details about themselves.

Figure 6- Page where the applicant has to fill all his details.

Step 7– Once the candidate is done with filling all the necessary details he needs to tap on the save and next button. If he has mentioned all the details correctly then he will be automatically redirected to another page of the application that is the address part. But if he has not mentioned all the details correctly then he will get an error message and then he will have to correct all his mistakes according to the error message. Once he has cleared all the errors he will be redirected to the address page. 

Figure 7- Page where the applicant has to fill in all his address details

Please Note

  1. If the applicants are from Bhutan or Nepal and they don’t have a passport or their passport has expired then they need not fill in the particulars related to the passport. Because it is optional for the nationals of Bhutan and Nepal to fill in their passport details, they can just leave that area unfilled. But they must, while filling in their application details, upload a Bhutanese or Nepali document which has been issued to them by their election commission.
  2. Certain relaxations are provided to the people of minority communities from Pakistan or Afghanistan who have entered the premises of India on or before 31st December 2009. Those relaxations are-
  • It’s optional for these applicants to fill in the passport details.
  • They have to enter the date of visa valid up to
  • If the applicants have an expired passport then they can simply put the details of their expired passport (expired passport particulars are also accepted by the system)

Step 8– Once the candidate has come to the address page, he will need to enter his address details correctly. Once he has filled in the address details, he needs to tap on the Save Data button. Once he taps on this button a screen will appear which will show all the records in the table. And if the applicant wants to add more addresses then he can do so by adding more records and after that, all those records will be visible in the table. 

Figure 8– Page where address page and records can be modified and added. 

Step 9– After filling in the addresses the applicant has to fill in the details of his family members on the next page. Once that is done the applicant can tap on the Save Data button. Then similarly to the last stage, all the records along with a table will appear on the applicant screen. The applicants will get to see a screen like this, and they will also get to see the options of edit and delete from where they can add or delete details of their family members.

Figure 9- page where the applicant has to fill in his family details.

Step 10– Once the applicant has filled in all the details related to his family he will have to click on the next button to move to the next part of criminal proceedings. If the applicant has any kind of criminal proceedings against him then he will have to select the YES button and if he does not have any criminal proceedings against him then he will choose the NO option to move further with the application.

Figures 10 & 11- Images showing the column where the applicant has to fill all the details related to his criminal proceeding.

Step 11– After the applicant is done with the criminal proceedings part he will have to tap on the next button to move to the part of uploading photos and documents. A screen like this will appear where the applicant has to upload all the photos.

Figure 12- Image showing the page where the applicant has to upload his photo.

Once the applicant comes to this page he will have to select the relevant photos he needs to upload and tap on the upload photo button. Once the applicant taps on the upload photo button he will get to see a screen like this.

Figure 13– Image showing the page from where the applicant can view his application form.

From the above screen, the applicant will be able to view his application. Once the applicant taps on the view application button he will be able to see his application form in a PDF format. From that PDF the applicant will be able to clearly check his form before submitting it.

If the applicant has checked his application form and is satisfied with it, he can click on the Final Submit to the Ministry option. 

Please Note

After clicking on the final submit option the applicant can not make any kind of modification in his application form.

Step 12– Once the applicant has submitted their application form, he will receive a Ministry of Home Affairs (MHA) file number. He will be redirected to the page for uploading documents. 

Figure 14– Image showing the page where the applicant has to upload his documents.

Once the applicant has noted down the MHA number, he is required to tap on the close option to move further with the document submission.

Step 13– In this stage the applicant has to choose all the relevant document files which he needs to upload. Once the applicant has selected all the relevant files he will have to click on the upload button for the submission of documents. After this, the applicant will be able to see the list of documents that he has submitted. 

Figure 15– Image showing the list of uploaded documents.

Step 14- Once the applicant has submitted all the necessary documents he will get to see a print application option. (look at the image above for better understanding). Through this print application option, the candidate can print and download his application form for future reference.

Step 15– Once all the above stages are complete, the candidate has successfully downloaded his application form. Candidate must move forward to make the payment in the payment window. Once the candidate taps on the payment option he will get to see a screen like this.

Figure 16-Image showing the payment page gateway.

The name of the applicant, the section under which he has filled his application form, the prescribed fee and his Ministry of Home Affairs file number will be displayed on the payment gateway screen. 

The applicant can pay his fees through online mode at the SBI payment gateway. The applicant has been given the leverage to choose any kind of mode of payment such as debit card, credit card or net banking. Once the payment has been successfully made by the applicant he will receive a receipt from the system itself.

Step 16– After making the payment of the prescribed fee, the applicant has to submit a hard copy of his online application form and all the supporting documents that he has submitted to the office of the deputy commissioner or the district collector.

Step 17– Once the citizenship application has been accepted by the competent authorities of the government they will issue an in-principle acceptance letter to the applicant. The applicant will be sent an in-principle application through post, SMS, and email ID.

Once the applicant receives this application letter he will have to fill out any relevant form XI, X, or XII from this website, and the applicant is also required to submit all the essential documents to the office of the District Collector.

Figure 17- Image showing the apply options for form X/XII

Applicants are required to click on the Apply Form X/XI/XII option. 

Step 18- After completing step 17 applicant will have to provide all the essential details required in the form and then tap on the Print and Modify option. 

Figure 18- Image showing the modify and print option.

After tapping on the modify and print option, the applicant will receive an OTP on his email ID which he has provided while filing the application form. Then applicants will have to enter the OTP and tap on the submit and continue option.

Figure 19- Image showing the OTP verification page.

Step 19– Once the applicant enters the OTP he will be redirected to another page where he will be asked to fill in all the details.

Figure 20– Image showing the 1st page of personal form X

Step 20– Once the applicant fills in all the necessary details and taps on the save and next button he will be redirected to another page where the applicant will have to submit his signature and photograph.

Figure 21- Image showing the picture and signature upload page.

Step 21- Once the applicant has successfully uploaded his signature and photograph the next thing he has to do is to tap on the Form X final submit to the ministry option for the final submission.

Figure 22- Image showing the final submit option.

Step 22- Applicant has to click on the close option and make the payment of required fees.

Figures 23 & 24- Images showing the online payment option.

Step 23– In the last step the applicant is required to submit the hardcopy of Form X/XI/XII to the District Collectors office along with the payment receipt, valid renunciation certificate and all the signatures and photographs.

Once the Indian citizenship is granted to the applicant, his citizenship certificate will be sent to the District collector’s office.

People who can get Indian Citizenship through registration

Here we will be discussing the various persons who can apply for Indian citizenship through registration and we will also know about their eligibility criteria and documents.

Let us have a look at the list of those persons-

  1. Any person of Indian origin 
  2. Any person who has or is been married to an Indian National
  3. Any minor child
  4. Any person whose parents are registered as Indian citizens
  5. Any person whose either of parents was a citizen of independent India
  6. Any person who is registered as an overseas citizen of India
  7. Any foreigner through the process of naturalization
  8. Any minor child in the Indian consulate

Now let us read in detail about all the eligibility criteria and documents required under each category of persons.

By a person of Indian Origin

Section 5 (1) (a) of the Indian Citizenship Act talks about the registration of Indian citizenship by any person of Indian origin who was ordinarily a resident of India for seven years before filing their application for registration. Let us have a look at the eligibility criteria and documents required to apply under this category.

Eligibility criteria

The eligibility criteria are as follows

  • Applicants must have lived in India for one year immediately before filing an application for registration.
  • Applicants must have lived in India for a period of eight years immediately preceding the period of one year for at least 6 years. 

Please Note

Under this subsection, a person will be deemed an Indian citizen if he or either of his parents were born in the territory of undivided India which later became part of India after the 15th of August, 1947.

List of Documents

  • Photocopy of a valid foreign passport ID
  • Photocopy of a valid residential permit
  • Any certificate proving the date of birth of parents.

Tabular Representation of Image and Document Uploading Criteria

Criteria for uploading imagesCriteria for uploading documents
Passport-size photograph of the applicantApplicant has to uploadDocument proving the Indian origin of parentsA foreign passport copy attachedAny copy of the valid residential permit
Dimension of the photo should be 100*120 (width and height)All the above documents should be scanned and saved in a PDF format
Make sure that the size of the image does not exceed 20 KBEach document can consist of several pages
The image which is to be uploaded should be in a JPG formatThe size of the documents should not exceed more than 1 MB
Microsoft Picture Manager can be used to change the size of an image

A person who has or has been married to an Indian National

Section 5 (1) (c) of the Indian Citizenship Act talks about the registration of Indian citizenship by any person of Indian origin who has been married to an Indian National who was ordinarily a resident of India for seven years before filing their application for registration. Let us have a look at the eligibility criteria and documents required to apply under this category. 

Eligibility criteria

The eligibility criteria are as follows

  • Applicants must have lived in India for a period of one year immediately before filing an application for registration.
  • Applicants must have lived in India for a period of eight years immediately preceding the period of one year for at least 6 years.

List of Documents

  • Photocopy of a valid foreign passport ID
  • Photocopy of a valid residential permit
  • Any document proving the nationality of the husband/wife
  • One copy of the marriage certificate which was issued by the registrar of the marriage department

Tabular Representation of Image and Document Uploading Criteria

Criteria for uploading imagesCriteria for uploading documents
Passport-size photograph of the applicantApplicant has to uploadA foreign passport copy attachedAny copy of the valid residential permitAny proof of evidence proving the Indian nationality of the spouseCopy of the marriage certificate issued by the registrar’s officeIf any of the spouses is in a government office then any document proving such employment should be produced
Dimension of the photo should be 100*120 (width and height)All the above documents should be scanned and saved in a PDF format
Make sure that the size of the image does not exceed 20 KBEach document can consist of several pages
The image which is to be uploaded should be in a JPG formatThe size of the documents should not exceed more than 1 MB
Microsoft Picture Manager can be used to change the size of the image

A minor child

Section 5 (1) (d) of the Indian Citizenship Act, 1955 talks about the registration of Indian citizenship by a minor child whose parents are of Indian origin.

Eligibility criteria

The eligibility criteria are as follows

  • Parents of the minor child should be of Indian origin।

Please Note

Any person who has not attained the age of 18 years is considered as a minor।

List of Documents

  • Photocopy of a valid foreign passport ID
  • Photocopy of a valid residential permit
  • Any document proving the Indian nationality of both parents
  • If a minor has a guardian then the proof of guardianship is to be produced

Tabular Representation of Image and Document Uploading Criteria

Criteria for uploading imagesCriteria for uploading documents
Passport-size photograph of the applicantApplicant has to uploadA foreign passport copy attachedAny copy of the valid residential permitAny proof of evidence proving the Indian nationality of both parents
Dimension of the photo should be 100*120 (width and height)All the above documents should be scanned and saved in a PDF format
Make sure that the size of the image does not exceed 20 KBEach document can consist of several pages
The image which is to be uploaded should be in a JPG formatThe size of the documents should not exceed more than 1 MB
Microsoft Picture Manager can be used to change the size of the image

By a person whose parents are registered as Indian citizens

Section 5 (1) (e) of the Indian Citizenship Act, 1955 talks about the registration of Indian citizenship by any person whose parents are registered as Indian Nationals.

Eligibility criteria

The eligibility criteria are as follows

  • The person applying for citizenship should be an adult and of capacity
  • Parents must be registered as Indian Citizens under the Sections 6 (1) and 5 (1) (a)

List of Documents

  • Photocopy of a valid foreign passport ID
  • Photocopy of a valid residential permit
  • Copies  of the certificate of Indian citizenship of both the parents provided by the Indian government under section 6 (1) and 5 (1) (a) is to be produced

Tabular representation of image and document uploading criteria

Criteria for uploading imagesCriteria for uploading documents
Passport-size photograph of the applicantApplicant has to uploadA foreign passport copy attachedAny copy of the valid residential permitCertificate of citizenship of both parents 
Dimension of the photo should be 100*120 (width and height)All the above documents should be scanned and saved in a PDF format
Make sure that the size of the image does not exceed 20 KBEach document can consist of several pages
The image which is to be uploaded should be in a JPG formatThe size of the documents should not exceed more than 1 MB
Microsoft Picture Manager can be used to change the size of the image

By a person whose either of the parents were a citizen of independent India

Section 5 (1) (F) of the Indian Citizenship Act talks about the registration of Indian citizenship by any person who or any of his parents were nationals of Independent India.

Eligibility criteria

The eligibility criteria are as follows

  • The person applying for citizenship should be an adult
  • Any of the applicant’s parents should have remained citizens of Independent India
  • The parents of the applicant must have been residing in India for a period of 12 months immediately before filing the application for citizenship registration.

List of Documents

  • Photocopy of a valid foreign passport ID
  • Photocopy of a valid residential permit
  • Proof of evidence proving that either of the applicant’s parents was citizens of independent India

Tabular Representation of Image and Document Uploading Criteria

Criteria for uploading imagesCriteria for uploading documents
Passport-size photograph of the applicantUpload:A foreign passport copy attachedAny copy of the valid residential permitAny document proving the Indian origin of either of the parents of the applicant.
Dimension of the photo should be 100*120 (width and height)All the above documents should be scanned and saved in a PDF format
Make sure that the size of the image does not exceed 20 KBEach document can consist of several pages
The image which is to be uploaded should be in a JPG formatThe size of the documents should not exceed more than 1 MB
Microsoft Picture Manager can be used to change the size of an image

Any person who is registered as an overseas citizen of India

Section 5 (1) (g) of the Citizenship Act talks about the registration of Indian citizenship by any person who is an Overseas citizen of India under section 7A of the Citizenship Act.

Eligibility criteria

The eligibility criteria are as follows

  • The person applying for citizenship should be an adult.
  • The applicant must be registered as an Overseas citizen of India for 5 years.
  • Applicants must be living in India for 12 months before filing the application.

List of Documents

  • Photocopy of a valid foreign passport ID
  • Photocopy of the certificate of registration proving the applicant is an Overseas Indian citizen under Section 7A

Tabular Representation of Image and Document Uploading Criteria

Criteria for uploading imagesCriteria for uploading documents
Passport-size photograph of the applicantApplicant has to uploadA foreign passport copy attachedA copy of a legitimate OCI card with a validity of 5 years
Dimension of the photo should be 100*120 (width and height)All the above documents should be scanned and saved in a PDF format
Make sure that the size of the image does not exceed 20 KBEach document can consist of several pages
The image which is to be uploaded should be in a JPG formatThe size of the documents should not exceed more than 1 MB
Microsoft Picture Manager can be used to change the size of the image

Any foreigner through the process of naturalisation

Section 6 (1) of the Indian Citizenship Act, of 1955 talks about the registration of Indian citizenship by any foreigner through naturalisation 

Eligibility criteria

The eligibility criteria are as follows

  • The person applying for citizenship should be an adult
  • The person applying for citizenship should not be an illegal migrant
  • The applicant has lived in India or served in any governmental office for a period of one year immediately before filing the application.
  • During the term of 14 years immediately preceding the period of one year, the applicant must have lived in India or should have been in any government office, for a duration amounting in the aggregate to not less than 11 years
  • Applicant must be of good character
  • Applicant must possess enough knowledge of a language which is specified in the 8th schedule of the Indian Constitution

List of Documents

  • Photocopy of a valid foreign passport ID
  • Photocopy of a valid residential permit
  • Photocopy of the original bank challan amounting to fifteen hundred rupees that is deposited in SBI bank under the heading of 0070 other administrative services
  • Applicant needs to submit one affidavit from his side and two affidavits from any two Indian nationals, who will testify the character of the applicant in the language mentioned in the application form.
  • 2 certificates of language providing certification for the applicant’s knowledge in any of the Indian languages which are mentioned in the 8th schedule of the Indian Constitution.
  • 2 newspaper cuttings of different states notifying the intention of the applicant to apply for citizenship in the language mentioned in the application form.           

Tabular Representation of Image and Document Uploading Criteria

Criteria for uploading imagesCriteria for uploading documents
Passport-size photograph of the applicantApplicant has to uploadA foreign passport copy attachedAny copy of the valid residential permitOne affidavit from the applicant himself and two affidavits and two affidavits from any two Indians testifying about the applicant’s characterTwo language certificatesTwo newspaper cuttings
Dimension of the photo should be 100*120 (width and height)All the above documents should be scanned and saved in a PDF format
Make sure that the size of the image does not exceed 20 KBEach document can consist of several pages
The image which is to be uploaded should be in a JPG formatThe size of the documents should not exceed more than 1 MB
Microsoft Picture Manager can be used to change the size of an image

By any minor child at the Indian Consulate

Any person who files for the registration of citizenship under section 4 (1) of the Indian Citizenship Act, 1955, of his minor child who is born outside the premises of India shall provide a declaration proving that the child does not hold the passport of any other nation.

Eligibility criteria

The eligibility criteria are as follows

  • The child should not hold a passport of any other country

List of Documents

  • Photocopy of the child’s birth certificate
  • Photocopy of the passports of both parents
  • A copy of the citizenship certificate should be also provided if the citizenship has been obtained through registration or naturalization.
  • Photocopy of parents’ marriage certificate
  • Declaration letter stating that the child doesn’t hold the passport of any other nation.

Tabular Representation of Image and Document Uploading Criteria

Criteria for uploading imagesCriteria for uploading documents
Passport-size photograph of the applicantAn applicant has to uploadChild’s birth certificateParents passportParents marriage certificateA copy of the citizenship certificate should also be provided if the citizenship has been obtained through registration or naturalization.
Dimension of the photo should be 100*120 (width and height)All the above documents should be scanned and saved in a PDF format
Make sure that the size of the image does not exceed 20 KBEach document can consist of several pages
The image which is to be uploaded should be in a JPG formatThe size of the documents should not exceed more than 1 MB
Microsoft Picture Manager can be used to change the size of an image

Tabular representation of essential information about application forms

These are the essential information that every applicant must know if he is thinking of applying for an Indian Citizenship.

Form detailsForm name 
Application form for the registration of India Citizenship made by a person of Indian origin under section 5 (1) (a) of the India Citizenship Act 1955. Form II under section 5 (1) (a) 
Application form for the registration of Indian Citizenship under section 5 (1) ( c ) of the Indian Citizenship Act, 1955 made by a person who is or has been married to an Indian Citizen. Form III under section 5 (1) (c)
Application form for the registration of a minor child under section 5 (1) ( d ) of the Indian Citizenship Act, 1955Form IV under section 5 (1) (d)
Application form for the registration of Indian Citizenship made by a person under section 5 (1) (e) of the Indian Citizenship Act, 1955, when both the parents of the applicant are registered as Indian Citizens under sections 6 (1) and 5 (1) (a)of the  Indian Citizenship Act, 1955 Form V, under section 5 (1) (e)
Application form for the registration of Indian Citizenship made by a person under section 5 (1) (f) of the Indian Citizenship Act, 1955, who himself or any of his parents were nationals of Independent India and has also lived in India for a duration of 12 months before filling an application.Form VI, under section 5 (1) (f)
Application form for the registration of Indian Citizenship made by a person under section 5 (1) (g) of the Indian Citizenship Act, 1955, made by a registered OCI under section 7AForm VII, under section 5 (1) (g)
Application form for naturalization as an Indian Citizen under section 6 (1) of the Indian Citizenship Act, 1955 Form VIII, under section 6 (1)

Tabular representation of sections and required documents for availing citizenship of India

Here we have mentioned the list of sections and all the essential documents that an applicant needs to submit in the process of availing Indian Citizenship.

Important DocumentsName of the section 
Photocopy of a legit foreign passportPhotocopy of a legit residential permitEvidence proving the DOB of the parentsDeclaration of allegiance as mentioned in the form to be made in the collectors office as specified in the Citizenship Rules, 1955Photocopy of bank receipt amounting to rupees 500 that was paid to SBI bank as declaration of allegiance under heading “0070-other administrative services under Citizenship Act”Form II under the section 5 (1) (a)
Photocopy of a legit foreign passportPhotocopy of a legit residential permitAny document proving the nationality of spouseMarriage certificateDeclaration of allegiance as mentioned in the form to be made in the collector’s office as specified in the Citizenship Rules, 1955Photocopy of bank receipt amounting to rupees 500 that was paid to SBI bank as declaration of allegiance under heading “0070-other administrative services under Citizenship Act”Form III under section 5 (1) (c)
Photocopy of a legit foreign passportPhotocopy of a legit residential permitAny document such as birth certificate or passport which helps in proving the nationality of both the parentsDeclaration of allegiance as mentioned in the form to be made in the collectors office as specified in the Citizenship Rules, 1955Photocopy of bank receipt amounting to rupees 500 that was paid to SBI bank as declaration of allegiance under heading “0070-other administrative services under Citizenship Act”If the applicant has a guardian then proof of guardianship should also be submittedForm IV under section 5 (1) (d)
Photocopy of a legit foreign passportPhotocopy of a legit residential permitA copy of Indian Citizenship Certificate of both of both the parents of applicant issued under the section 5 (1) (a) or 6 (1) of the Indian Citizenship Act, 1955Declaration of allegiance as mentioned in the form to be made in the collectors office as specified in the Citizenship Rules, 1955Photocopy of bank receipt amounting to rupees 500 that was paid to SBI bank as declaration of allegiance under heading “0070-other administrative services under Citizenship ActForm V under section 5 (1) (e) 
Photocopy of a legit foreign passportPhotocopy of a legit residential permitAny document proving that either of the parents of the applicant were a citizen of independent IndiaDeclaration of allegiance as mentioned in the form to be made in the collectors office as specified in the Citizenship Rules, 1955Photocopy of bank receipt amounting to rupees 500 that was paid to SBI bank as declaration of allegiance under heading “0070-other administrative services under Citizenship ActForm VI under section 5 (1) (f)
Photocopy of a legit foreign passportPhotocopy of certificate of registration as the OCI u/s 7ADeclaration of allegiance as mentioned in the form to be made in the collectors office as specified in the Citizenship Rules, 1955Photocopy of bank receipt amounting to rupees 500 that was paid to SBI bank as declaration of allegiance under heading “0070-other administrative services under Citizenship ActForm VII under section 5 (1) (g)
Photocopy of a legit foreign passportPhotocopy of a legit residential permitPhotocopy of bank receipt amounting to rupees 500 that was paid to SBI bank as declaration of allegiance under heading “0070-other administrative services under Citizenship ActApplicant needs to submit one affidavit from his side and two affidavits from any two Indian nationals, who will testify the character of the applicant in the language mentioned in the application form.2 certificates of language providing certification for the applicant’s knowledge in any of the Indian languages which is mentioned in the 8th schedule of the Indian Constitution.2 newspaper cuttings of different states notifying the intention of the applicant to apply for citizenship in the language mentioned in the application form.Form VIII under section 6 (1)

Please Note

All the applicants applying for Indian citizenship are advised to read the provisions of the Indian Citizenship Act, 1955 and all the rules contained in it before filing an application for Indian Citizenship.

Important instructions for filling out an Indian citizenship form

These are some of the instructions that every applicant must follow while filing the application form for Indian Citizenship. 

  • The applicant shall select only that application form for which he is eligible.
  • The applicant must keep all the supporting documents ready before filing the registration application.
  • Once the applicant finishes the first stage he will be provided with a temporary file number. The applicants must note down their temporary file number if they want to modify their application later.
  • Once the applicants submit their form to the Ministry of Home Affairs they will be provided with a MHA file number. The applicants must note down their MHA number for future reference or to track the status of their application.
  • Applicants must always take out a printout of their application form and store it with them for future reference.
  • Applicants must cross-check their application before submitting it to the ministry of Home Affairs because once the form is submitted the applicant can not make any changes in the application form.
  • Applicants must always check whether they have filled all the necessary information in their application or not.
  • If the applicant is facing any issue during filing an application then the applicant can send an email to spsharma@nic.in mentioning the problems that he is facing.
  • If the applicant has any kind of query or doubts then he can send an email to dsmmp-mha@nic.in 

Post submission of application form in the collector’s office

  1. After following all the procedures that are mentioned under Rule 11 and Rule 12 of the Indian Citizenship Rules, 2009 (rules 11 and 12 are mentioned below in this article). The application filed by the applicant will be forwarded by the concerned commissioner to the MHA by the concerned state government.
  2. After checking the applicant if the authority is satisfied that the application is complete and doesn’t have any issues, the applicant will be informed that his/her application has been accepted through the state government.
  3. After the application of the applicant has been accepted by the central government, the applicant will be asked to furnish a few things to the state government. Such as
  • Renunciation certificate of his foreign citizenship
  • Challan of the paid fees as mentioned in the letter of acceptance
  • 3 passport-size photos attested by a gazetted officer in the back
  • 3 specimens of the applicant’s signature
  • Personal details of the applicant in the form X at 2009 citizen rules
  1. After this, the certificate of citizenship will be forwarded to the state government who after finishing all the formalities mentioned in citizenship rules, 2009 will provide the same to the applicant.

Modes of losing Indian citizenship 

The Indian Citizenship Act provides different methods through which a person can get an Indian Citizenship but at the same time, it also lays down three methods by which an Indian citizen can lose his/her Indian citizenship. These methods are namely: termination, renunciation, and deprivation. The three methods have been explained in detail below:

Termination of Indian citizenship 

The termination of Indian citizenship takes place when an Indian citizen takes up the citizenship of another country. On such occasions, the Indian citizenship of such a person terminates automatically. This clause has been provided in Section 9 of the Citizenship Act. However, this provision is not applicable in times of war and if any such case arises during a war, the discretion shall remain with the government. 

Renunciation of Indian citizenship 

If any adult Indian citizen makes a declaration in the prescribed manner mentioning the renunciation of his citizenship, such declaration will be registered by the competent authority and after such kind of registration is done the person will lose his Indian citizenship. But,

  • If the applicant has made such a declaration during any war in which India was also involved then in such cases the registration of renunciation will be withheld until the Central Government gives any direction.
  • If a person loses his citizenship under sub-section 1, then in such circumstances the minor child of such person will also lose its citizenship. But the child can get his citizenship back if after becoming an adult he makes a declaration to resume his Indian citizenship.

Deprivation of Indian citizenship 

Section 10 of the Indian Citizenship Act, 1955 provides that any person who has attained Indian citizenship through naturalization or registration can be deprived of his Citizenship if the central government passes an order in that regard.

The Central government can pass any order and deprive the citizenship of any such citizen if it thinks that –

  • The certificate of citizenship was obtained through any kind of illegal method such as concealment of any fact, fraud or false representation.
  • Person after receiving the Citizenship certificate has been disloyal towards the Indian Constitution
  • During the time of any war in which India was also involved such citizen  was involved with any kind of business with the enemy which was not good for India
  • The citizen after he obtained the citizenship of India was given imprisonment in any country for a period of 2 years
  • The citizen has been living outside India for a period of 7 years and during those seven years he has neither been a student at any educational institution outside India nor he was in any Indian Government office of an International organization of which India is also a part. 

Frequently Asked Questions (FAQs)

These are some of the most common doubts that every applicant faces while getting an Indian Citizenship. 

Who is eligible to apply for Indian citizenship?

Any foreigner who was eligible for becoming an Indian Citizen on 26th February 1950 or was an Indian citizen after any time from 26th February 1950 or if the person belonged to a territory of India which became the part of India after 15th August 1947 and their children and grandchildren, provided that their country of citizenship allows dual citizenship under any local law, is able to be registered as an OCI. and the minor children of such person are also eligible to become an OCI. but if the applicant has been a citizen of Pakistan or Bangladesh at any point in time then they won’t be eligible for OCI.

How can we obtain Indian citizenship?

Indian citizenship can be obtained through naturalization or by online registration available for different categories.

Who was eligible to become an Indian Citizen from the period of 26th January 1950?

Any individual who or his grandparents and parents were born in India as mentioned in the Government of India Act1935, and who was living anywhere outside India was eligible to become an Indian Citizen from 26th January 1950.

How many territories became part of India after 15th August 1947?

The territories which became the part of India after 15h August 1947 are Sikkim, Pondicherry, Dadra and Nagar Haveli, Goa, and Daman and Diu.

Can the wife or husband of the eligible person apply for OCI?

Yes, any of the spouses is eligible in her own capacity to apply for OCI.

Can a minor child apply for Overseas Citizen of India?

Yes, if any of the parents is eligible then the minor child can also apply for OCI.

What documents do I need to submit with the registration application?

These are the documents which an applicant needs to submit along with the application

  • Any document proving the citizenship of the applicant
  • Proof of relationship as a grandparent or parent 
  • Photocopy of the passport
  • Photocopy of the domicile certificate provided by the competent authority
  • PIO card holders should submit a photocopy of their PIO card
  • Any other proof

What all documents would come under the category of “Any other proof”?

Documents such as land ownership certificates, school certificates, birth certificates come under the category of any other proof.

How many application copies should be submitted?

Each applicant has to submit a duplicate form of his application

Can I withdraw my application after submitting it?

No an application can’t be withdrawn after its submission, thus it is advised for each applicant to be very sure while filing an application

Can I modify my citizenship registration application?

Yes, the applicants can modify their application with the help of a temporary ID which is provided to them at the initial stages of filling the application form.

What is the use of a temporary ID?

The temporary application ID is used to modify an application and also to complete and submit the partially filled registration application, this can be done only when the applicant has successfully saved his personal details after filling out the application form.

What will happen if I furnish the wrong information in my application form?

There will be an enquiry conducted by the concerned authorities to check whether the information was published voluntarily or by mistake. And if it is found that wrong information was filed voluntarily by the applicant then his registration as OCI will be cancelled and he will also be blacklisted for any kind of entry in India.

How long does it take for registration as OCI?

After filing 30 days of the application if no adverse information is present against the applicant . but if there is any kind of adverse information present against the applicant then in such cases it can take about 120 days.

What are the modes of losing an Indian citizenship?

An applicant can lose his Indian citizenship through three modes. And those three modes are termination, renunciation and deprivation.

From where can I fill out the application form for Indian Citizenship registration?

You can fill out an online application form for citizenship registration from the website of the Foreigners Division Ministry of Home Affairs Government of India. Tap here to visit this website.

Can I get Indian Citizenship if I marry an Indian citizen?

Yes, under section 5 (1) ( c ) of the Indian Citizenship Act, 1955 if a person marries someone of Indian origin can also apply for citizenship of India through registration.

Can a minor child at the Indian consulate obtain citizenship in India?

Yes, a minor child at the Indian consulate can also be registered as an Indian citizen if the parents prove that the minor does not hold a passport from any other nation.

Conclusion

Getting an Indian Citizenship is not a very difficult task if you know all the whereabouts of filling out the application form for Indian Citizenship. The most important thing that an applicant needs to figure out is under which category he is eligible to apply, once this thing is done the applicant can easily fill out the application form. 

This article has exhaustively covered all the aspects of how a foreigner can acquire an Indian Citizenship. It was an ultimate guide to fixing all the doubts and queries of the applicant. Read this article once more if you are facing any kind of trouble in filing the application form and your doubts and queries will be settled.

References

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State of Haryana v. Bhajan Lal (1990) : case analysis https://blog.ipleaders.in/state-of-haryana-v-bhajan-lal-1990-case-analysis/ https://blog.ipleaders.in/state-of-haryana-v-bhajan-lal-1990-case-analysis/#respond Thu, 14 Mar 2024 09:48:44 +0000 https://blog.ipleaders.in/?p=120230 This article was written by Suryanshi Bothra. The article delves into the background of the case, its judgement, and its lasting impacts. This article will also shed some light on the essentials that were outlined in the case regarding the quashing of an FIR by the High Court.  It has been published by Rachit Garg. […]

The post State of Haryana v. Bhajan Lal (1990) : case analysis appeared first on iPleaders.

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This article was written by Suryanshi Bothra. The article delves into the background of the case, its judgement, and its lasting impacts. This article will also shed some light on the essentials that were outlined in the case regarding the quashing of an FIR by the High Court. 

It has been published by Rachit Garg.

Introduction

The case of the State of Haryana & Ors. v. Bhajan Lal & Ors. (1990) is a landmark judgement delivered by the Supreme Court of India in 1990. The case has managed to create a place for itself in the legal history of India. This case deals with the court’s power to interfere in matters of investigation related to corruption based on allegations. It particularly deals with cases of abuse of the legal process for personal gains. This verdict provided seven crucial guidelines regarding the application of Article 226 of the Constitution. This deals specifically with cases concerned with quashing First Information Reports and criminal proceedings. In this article, we will delve into a detailed analysis of this case, i.e., the State of Haryana v. Bhajan Lal (1990). This judgement managed to provide a structured framework, which is also known as the Bhajan Lal test. This test has been very widely cited in subsequent cases. This test consists of a two-step inquiry. It involves subjective and objective criteria. The case acts as a guide to the observations and criteria that are essential when considering applications for quashing criminal proceedings. We will unravel the facts, legal issues, and arguments presented by both sides. 

Details of State of Haryana v. Bhajan Lal

Case name

State of Haryana & Others v. Ch. Bhajan Lal & Ors. 

Case No.

Civil Appeal No. 5412 of 1990

Judgement date

21 November 1990

Parties to the case

Petitioners

State of Haryana & Ors. 

Respondents

Ch. Bhajan Lal & Ors.  

Represented by

Petitioner

Advocates, namely, N.S. Hedge, Additional Solicitor General, Arun Jaitley, Additional Solicitor General, R.B. Datar, Hemant Sharma, and B.K. Prasad.

Respondent

Advocates, namely, K. Parasaran, P. Chidambaram, R.K. Garg, Ayasha Karim, and Indu Malhotra.

Equivalent citations

AIR 1992 SC 604, I (2006) CCR 209 (SC), 1992 CriLJ 527, 1990/INSC/363, JT 1990 (4) SC 650, 1990 (2) SCALE 1066, 1992 Supp (1) SCC 335, [1990] Supp 3 SCR. 

Type of case

Civil Appeal

Court

The Supreme Court of India 

Acts involved 

Code of Criminal Procedure, 1973, Prevention of Corruption Act, 1947

Provisions and statutes involved

Article 226  and 227 of the Indian Constitution, Sections 154, 155, 156, 157, 159, and 482 of the Code of Criminal Procedure, 1973, and  Section 5 of the Prevention of Corruption Act, 1988

Bench

Justices, namely, S.R. Pandian and K. Jayachandra Reddy.

Author of the Judgement

Justice S.R. Pandian. 

Background of State of Haryana v. Bhajan Lal

Dharam Pal complained against Ch. Bhajan Lal before Ch. Devi Lal, who was the Chief Minister. Ch. Bhajan Lal was the then Union Minister for Environment and Forests when the proceedings were initiated. He had previously served as a minister and was the Chief Minister of Haryana between 1982 to 1987. There existed a massive political rivalry between Ch. Devi Lal and Ch. Bhajan Lal. On account of this rivalry, both parties filed several criminal cases and countercases against each other. This led to a lot of bad blood between them. Jasma Devi, who was the wife of Ch. Bhajan Lal, had contested elections from Adampur. She won the election against Mr. Dharam Pal. 

On 12th November 1987, Dharam Pal accused Bhajan Lal of accumulating huge properties worth crores of rupees. These allegations included details about the construction of a lavish house, petrol pumps, shops, and the purchase of land. According to these allegations, he also held cars, jewellery, and shares in the cinemas of Sirsa and Adampur. These properties were in the name of his family members, relatives, and people close to him. The cost of the properties seemed disproportionate to his known sources of income. He cited 20 different allegations. The allegation was that he was misusing his power, position, and influence. He was undervaluing the market price of the properties and that all the transactions were ‘benami’ in nature. 

The complaint was endorsed by Ch. Devi Lal and the Director General of Police (DGP). The DGP instructed the Superintendent of Police in Hisar to investigate the allegations against Ch. Bhajan Lal. A case was registered under Sections 161 and 165 of the Indian Penal Code, 1860, and also under Section 5(2) of the Prevention of Corruption Act, 1988. The third appellant, who was the SHO, registered the case and deployed an inspector along with constables to the specified location. The SHO led the investigation and forwarded a copy of the FIR to the magistrate and other designated offices.

Proceedings in the Punjab and Haryana High Court

Court’s observations

Three separate statements were filed by Inspector Kartar Singh on behalf of the State of Haryana, another by Ch. Devi Lal, and a third by S.P. Lekhi and Inspector Tara Chand. The High Court examined the contentions and the statements. It then presented the following observations:

  1. The allegations seemed imaginary.
  2. Dharam Pal’s only intention was to begin a criminal proceeding. He did not verify his allegations and was solely dependent on the police investigation to find proof. 
  3. The allegations, therefore, come from a desperate place. 
  4. The allegations were indiscriminate and were further made irresponsibly. 
  5. The allegations were made to politically favour Devi Lal and to avenge his loss against the petitioner’s wife. 
  6. The individual statements were filed by S.P. Lekhi Ram and Tara Chand about 8 months later. The court held that malice could only be attributed to them and not Devi Lal. 

There were allegations regarding the non-application of mind by Lekhi Ram and Tara Chand. The court observed that the affidavits were made because the S.P. felt pressure and, therefore, did not indicate any real application of mind. 

Judgement of the Punjab and Haryana High Court

The Punjab and Haryana High Court referred to various judgments of the Supreme Court and the State of West Bengal & Ors. v. Swapan Kumar Guha & Ors. (1982) and decided that the allegations presented by Dharam Pal did not constitute a cognizable offence. The court granted the petitioner’s request, and Dharam Pal was charged with the costs of the Writ Petition. Chhabil Dass, who was not a party in the writ petition, filed an affidavit claiming that he had enough material to provide proof for the various allegations against Bhajan Lal. As he was not a party to the application presented before the High Court, his application was rejected. 

Issues raised

  1. Whether or not the registration of the case under Section 154(1) of the CrPC by itself warrants an investigation under Chapter XII of the Code? 
  2. Was the offence prima facie visible in the FIR under Section 4 read with Section 3 of the Prevention of Corruption Act of 1978 while also considering the requirement of Section 2(c) defining the expression “Money Circulation Scheme”? 
  3. Whether or not, under Section 157 of the Code of Criminal Procedure, the police officers have unrestricted power in the realm of investigation. Whether the courts exercise judicial review over the power vested in the police in the investigation stage or whether the police are wholly exempted?  
  4. Whether or not the High Court was justified in quashing the FIR and the proceedings? Also, were the proceedings of the investigation legally sustainable? If not, then to what extent?
  5. Whether or not there is any valid order from the S.P. that authorises the Station Houses Officer to investigate the offence falling under Section 5(1)(e)
  6. In what category of cases can FIRs or criminal proceedings be quashed in the exercise of the power of the High Court under Article 226 of the Constitution of India? And under what circumstances can the High Court exercise its inherent powers under Section 482 of the CrPC? 

Arguments of the parties in State of Haryana v. Bhajan Lal

Appellant

Mr. Rajinder Sachhar and the Advocate General of the State of Haryana appeared for the appellant. They were assisted by Mr. Mahabir Singh. While Mr. R.K. Garg represented Dharam Pal, Mr. R.K. Garg contended that the allegations contained in the complaint constituted a cognizable offence. He argued that the allegations warranted the registration of a case. They cited that registration was contemplated under Section 154(1) of the Criminal Procedure Code. Moreover, he emphasised that there must be a thorough investigation according to Sections 156, 157, 159, etc, from Chapter XII of the Code. He claimed that the High Court had no justification to quash the FIR and the proceedings. He also obliterated the court for intervening in the police investigation. 

Mr. Rajinder Sachhar and Mr. R.K. Garg argued that the High Court, while exercising its jurisdiction under Article 226, overstepped. Interfering with the investigating powers of the police officials nullified the entire proceeding, starting from the registration, especially when the allegations made in the complaint impliedly constitute offences under the Prevention of Corruption Act. Therefore, this interference is unjustifiable and violates the principles laid down by the court. 

The learned counsels submitted that the observations of the High Court bench should not be endorsed. According to them, accepting such observations could have disastrous consequences for the democratic system. It could adversely affect the country’s welfare. Allowing such a judgement could lead to future administrations turning a blind eye to the wrongdoings of older governments. It would lead to corruption and malfeasance going unreported. They believe that there is no basis for concluding that there was any political gain in reporting Ch. Bhajan Lal.    

Respondent 

K. Parasaran and P. Chidambaram appeared on behalf of the first respondent. The respondents, Bhajan Lal and others, contended that the allegations were deeply rooted in political animosity. The allegations were not genuine, and this suggests an old, long-standing rivalry. He claimed that this complaint was not an effort to disclose information for the public interest. According to the respondents, the allegations had mala fide intent based on personal vendetta. They argued that the complaint aimed to ruin Bhajan Lal’s reputation and put a dent in his political career. The respondents also claimed that the officers were not in the right capacity to begin the investigation. 

Mr. Parasaran agrees with the High Court and argues in the Supreme Court that the judgement of the High Court is well reasoned. He pleads with the Supreme Court not to overturn the High Court’s judgement. According to them, the political rivalry fueled the attempt of character assassination against Bhajan Lal. According to the appellants, Dharam Pal is being used as a tool to file false allegations. He then contended that even if the allegations were true, they would not constitute an offence that would warrant registration of the case. The High Court saw all the allegations and concluded that letting the investigation go on would be unjust. 

Mr. Chidambaram objected to the new allegations, stating that their sole intention was to prejudice the court. He urged the court not to consider the allegations, as they are baseless. Mr. Parasaran criticised the police officer for overstepping. He accused them of making a rash decision when registering the FIR and beginning an investigation. He pointed out that the High Court held that the police officer was overzealous and loyal to Devi Lal. 

Laws and precedents discussed in State of Haryana v. Bhajan Lal

Krishna Ballabh Sahay & Ors. v. Commission of Enquiry & Ors. (1968)

The court in this case referred to the State of Punjab v. Gurdial Singh & Ors. (1979) and many other related cases. All of these judgements were cited to justify that under Section 154(1) of the CrPC, it is mandatory for the police officer to register a case if the allegations are cognizable offences. Further, Section 155(4) states that when two offences are involved, in which one of them is cognisable, then the entire case will be considered cognizable. Sections 156, 157 and 159 of the CrPC highlight that if the police have reason to suspect a cognizable offence, they can proceed with the investigation, or if there is not enough ground, they can dispense it. The above mentioned judgements emphasise that courts cannot intervene and stifle the police investigation. The police have exclusive investigating powers in cases of cognizable offences as long as they comply with all essential provisions and guidelines. However, the magistrate can intervene to direct an investigation or a preliminary inquiry. 

State of Bihar & Anr. v. J.A.C. Saldanha & Ors. (1979)

The court cited this case, S.N. Sharma v. Bipen Kumar Tiwari & Ors. (1970), and many other related cases to substantiate the interpretation of the phrase “reason to suspect” used in Section 154(1). It clarifies that the phrase “reason to suspect” refers to any rational reasoning that could lead a reasonable person to believe that a cognizable offence had been committed. This inference does not always prove anything, but in some cases, it is enough to begin an investigation. Other than a reason to suspect, Section 157(1) states that police must be satisfied that there is sufficient ground for investigation.

Furthermore, this case discusses the interplay between Sections 156, 157, and 159 of the CrPC. Section 156(1) empowers the officer-in-charge of the police station to investigate cognizable offences. The judgement highlights the interpretation of Section 157(1), which outlines the process of reporting to a magistrate when an officer suspects the commission of a cognizable offence. The role of the Magistrate and the High Court in overseeing investigations specified in Section 159 is also discussed. D.A. Desai and Justice Bhargava underline the exclusive role of police in the investigation process. The case also highlights the powers under Article 226 of the Constitution to intervene if it is convinced that the investigation is mala fide. The citation serves as authority when considering the cautions that high courts should take while quashing FIRs. The court disapproved of the High Court’s interference before the completion of an investigation.

Pakala Narayana Swami v. Emperor (1939) 

This is the next significant case that the Court referred to. In this case, the Court held that only police officers can investigate an offence, and the powers they can exercise must be in strict compliance with Chapter XII of the CrPC. Section 157(1) uses the expression “reason to suspect,” which contrasts with Section 41(1)(a) and (g) of the CrPC, where the term “reasonable suspicion” is used. The judgement provides clarity on the term “reason to suspect” and how it should be interpreted in its plain and ordinary meaning by citing the explanation given by Lord Atkin, who emphasised that when the meaning of the words is plain and simple, we should try to find the supposed intention of the words. The potential advantages and disadvantages of meaning should not be considered when the meaning is simple. The magistrate cannot interfere; however, Chapter XIV of the code requires the police to keep the magistrate informed of the investigation at all times. The court also talked about the limitations on the power of the police.

Emperor v. Khwaja Nazir Ahmed (1944)

The court cited this case, R.P. Kapur v. The State of Punjab (1960), as a reference to establish that the High Court’s views regarding the flaw in the written statement were incorrect. The High Court said that a failure to submit the written statement was a failure on the government’s part. They concluded that, due to this flaw, it should be assumed that the respondent has disproved all allegations. The Supreme Court says that these are inconceivable. The apex court, however, does recognise the vagueness of the allegations. It emphasises that no details regarding the properties or under whose names the properties were registered are provided. The Privy Council in Emperor v. Khwaja Nazir Ahmad also dealt with the responsibilities of the police under Sections 154 and 156 of the Code. The case emphasises the statutory right of the police to investigate cognizable offences. The functions of the judiciary and the police intermingle. Individual liberty and maintaining law and order can only be achieved if both entities do their respective functions without intervention. The council emphasises that the role of courts becomes prominent only in the later stages of the proceedings. It acknowledges that there is an exception where the court’s function begins a little early. Section 491 of the CrPC gives directions in cases where the writ of habeas corpus becomes applicable.  

Other important cases referred by the court

State of West Bengal & Ors. v. Swapan Kumar Guha & Ors. (1982) was also cited in the case. In the judgement, Justice Chandrachud agreed with the judgement of Justice A.N. Sen and Vardarajan. They stated that the condition for initiating an investigation under Section 157 of the CrPC was that the FIR must disclose a cognizable offence that has been committed. He mentioned that there should be no such thing as unfettered discretion. In Nandini Satpathy v. P.L. Dani & Anr. (1978), Justice Krishna Iyer expressed his view that a police officer should be precise, sensitive, and constitutionally conscious while performing his duties. An officer who does not follow the said guideline is said to have violated or disregarded the guaranteed right of “testimonial tacitness”. 

In Prabhu Dayal Deorah etc. etc. v. The District Magistrate, Kamrup & Ors. (1973), Justice Matthew emphasised the preservation of personal liberty. He highlighted the historical importance of adhering to procedural safeguards in protecting personal liberty. In P. Sirajuddin v. Government of Madras & Ors. (1982), Justice Mitter emphasises the importance of conducting a preliminary inquiry before charging a public servant, especially if he is holding a position of power. It is justified by the potential harm that these charges can cause to the individual as well as the department. Justice Mudholkar in State of Uttar Pradesh v. Bhagwant Kishore Joshi (1963) expresses that, in cases where there is a prohibition in CrPC, a police officer is permitted to conduct preliminary inquiries before the registration of the offence. 

Judgement of the court in State of Haryana v. Bhajan Lal

Criminal litigation

The Supreme Court, in a judgement dated 21st November 1990, set aside the High Court judgement. It was decided that quashing the FIR by the High Court was not valid because it was not legally and factually sustainable. This part of the High Court judgement was set aside. However, the commencement as well as the entire investigation too were quashed. The court also mentioned that the third appellant lacked valid authority under Section 5A(1) of the Prevention of Corruption Act, 1988. The provision states that only an officer at the rank of an inspector or above can take up the investigation of an offence under Clause (e) of Section 5(1). The judgement highlighted that the Superintendent of Police (SP) was over-enthusiastic and hasty when he instructed the Station House Officer to investigate. However, even though he lacked authority, the investigation was necessary. The court emphasised how it was crucial for the officer authorising such investigations to provide reasons for granting permission. It also held that not holding outgoing governments accountable for their misdeeds lays down an alarming position. Therefore, such a view cannot be judicially approved. They acknowledged that before an investigation is initiated, it is essential for the court to ensure that the allegations are not rooted in mala fide intent. The objective of Section 5A is to protect politicians and public servants from being harassed and victimised by frivolous investigations. Investigative authorities must adhere strictly to the provisions. However, if one provision is not followed, it does make the whole investigation illegal.

The court stated that it is essential to have information on a cognizable offence for registering an FIR. If the information satisfies the requirements under Section 154(1) of the CrPC then the officer-in-charge has no option but to register a case by filing an FIR. While a police officer cannot investigate a non-cognizable offence, they can do so by obtaining an order from a magistrate having proper authority, subject to the conditions mentioned in Section 155(3). In cases where there is more than one offence, the entire case is deemed cognizable. The investigation is deemed an exclusive field for the police, and the courts cannot interfere with the investigations. Chapter XIV of the CrPC has a scheme that involves keeping the magistrate informed of the investigation at all stages, but they cannot intervene. If the police officer exceeds his legal authority, the courts can intervene, consider the nature and extent of the breach, and then pass an appropriate order. The judgement emphasises the need for the protection of human dignity and highlights that no entity should have unquestionable rights or unlimited powers. 

The High Court had considered the non-filing of a written statement by the state government a serious flaw. It said that the non-filing disproved all the allegations against Ch. Bhajan Lal. The Supreme Court, on the other hand, disagreed with the High Court. It argued that the investigation was in a premature state. Therefore, the government did not possess the necessary details regarding the allegations against Bhajan Lal. On the matter of the over-enthusiasm of the S.P., the court said that the filing of the complaint on the same day of receiving it was a little over-enthusiastic. Especially when the complaint lay in the DGP’s office for 9 days. This enthusiasm was unprecedented and, therefore, raised a lot of questions. One of the questions was the reason for assigning the investigation to the Station House Officer. The court disapproved of the S.P.’s actions because he deviated from normal procedure. He should have been extra careful, knowing the seriousness of the charges against a former Chief Minister. The Court, however, did state that, even though his conduct was wrong, it cannot be a ground for quashing the FIR.   

To answer the question of what happens in cases of false allegations, the court highlighted that individuals who make false allegations resulting in damage to reputation can be held liable under Section 182, Section 211, and Section 500 of the IPC. Further, they could also be sued for damages. In this case, the allegations constituted a cognizable offence. Therefore, it did not fall under the category of cases that could warrant the High Court to exercise its power of quashing the criminal proceedings. The court rejected the contentions of mala fide intent when considering the question of whether the quashing of the FIR was legally sustainable. The court based this judgement that in this premature state of the investigation, it cannot evaluate the results and, therefore, cannot ascertain mala fide intent. The court also set aside the character assassination and personal gain contentions. The court determined that the primary purpose of the registration of the case was to gather enough evidence and then build a case. 

Regarding the submission of Chhabil Das, the court dismissed the submission, claiming that the submission suggested ulterior motives. It also declared that there was no substance to these arguments. Regarding the validity of the statutory power of the inspector, they referred to the case of H.N. Rishud and Inder Singh v. The State of Delhi (1954). The court mentioned that it is mandatory under Section 5A of the Prevention of Corruption Act that the investigation be conducted only by an officer at the rank of an inspector or above. The court, however, clarifies that this violation does not affect the competence and jurisdiction of the court or the trial. The State Government had authorised the inspector to investigate the offences falling under Section 5 of the Act. The prosecution failed to provide sufficient reasoning, which led to the passing of an order to investigate by the Superintendent of Police (SP). The orders seem to have been granted casually without considering the legal principles. The S.P., however, had not ordered the SHO to investigate. This was considered a violation by the High Court. The case was registered under Sections 161 and 165 of the IPC too. However, the government had authorised the investigation only under Section 5(2) of the Prevention of Corruption Act. According to this, the SHO had no authority to investigate offences under Sections 161 and 165. The court held that if the government feels the need for a new investigation, it must comply with Section 5A(1). 

On the presentation of new allegations by the appellants, the court agreed with Chidambaram that, at this stage, they cannot go into the validity of the allegations. Their allegations could only be examined by the proper court after a thorough investigation. 

The court set aside the High Court judgement and claimed that quashing the FIR was not factually or legally sustainable. The High Court order directing Dharam Pal to provide costs to Bhajan Lal too was set aside. The appeal was disposed of with no order as to the costs. 

Guidelines given in Bhajan Lal case 

The Supreme Court in the Bhajan Lal case laid down seven guidelines which must be followed by the High Court when exercising the powers specified in Section 482 of the CrPC. This provision allows the High Court to quash criminal proceedings, which are an abuse of the process of court. What constitutes an abuse of process by the court? Filing false FIRs and making false allegations is an abuse of process by the court. The powers under this section were unchecked. Bhajan Lal, therefore, draws these boundaries within the rules.  

  1. If the allegations in the FIR do not prima facie constitute an offence, they can be quashed. If it is found after consideration that the allegations are not sufficient to establish or presume that there is an offence, then the court can quash the FIR.    
  2. One ground for quashing an FIR is non-disclosure of any cognizable offence in the allegations mentioned in the FIR. Section 156(2) of the CrPC provides an exception to this rule that the police can be investigated in the matter even if there is no indication of a cognizable offence if a special authorisation is given by the magistrate. 
  3. FIRs can be quashed when undisputed allegations in the FIR fail to establish essential elements of a criminal element. There must be supportive evidence because a criminal proceeding without the accused would abuse the process of the court. It violates the fundamental rights of the accused. 
  4. When the allegations only constitute a non-cognizable offence, the police cannot begin an investigation without the permission of a magistrate. This rule is specified under Section 155(2) of the CrPC. Crimes that do not cause harm to society fall under this purview. This is aimed at restricting the unlimited powers of the police. It safeguards innocent individuals from unwarranted police investigations in cases where the alleged offence is non-cognizable. 
  5. Cases where the allegations in the complaint are too absurd and improbable can warrant the quashing of the FIR. It is usually done in cases where the accusations are irrational and way too far-fetched. The allegations must give clear reasons to initiate an investigation against the accused. 
  6. There is an explicit prohibition or restriction that prevents the initiation or continuation of criminal proceedings. It highlights cases where there are frameworks that offer alternative remedies that are effective in addressing the allegations made. Sections 195, 196, 197, 198, and 199 of the CrPC provide pre-conditions necessary to start an investigation.   
  7. When the case is tainted with bad faith and has the underlying motive of causing harm the FIR can be quashed. If the court determines that the intention of filing the case is mala fide. The court may intervene for the protection of the rights of the accused. It makes sure that the court and the criminal justice system are not being used to further personal vendettas. 

Conclusion 

This article discussed a landmark case, the State of Haryana v. Bhajan Lal (1992) in detail. It has significantly contributed to India’s legal history and has influenced many future cases. Its contribution as a precedent in proceedings for quashing an FIR or criminal proceedings has been significant. Especially in cases of abuse of the legal process with mala fide intent. The Bhajan Lal test balances the need for public interest with serving justice. Moreover, the case underscores the importance of following the chain of command according to statutory provisions when it comes to an investigation. The Supreme Court emphasises that the court should not interfere in investigations very often. When recognising the power of the High Court, the court tries to prevent the abuse of the legal process. The principles laid down in this case act as a guide for courts when evaluating applications for quashing criminal proceedings. 

Frequently Asked Questions (FAQs)

What is the inherent power of the High Court?

The inherent power of the high court in this case refers to Section 482 of the Code of Criminal Procedure. One of the primary objectives of this provision is to give the High Court power to quash FIRs and criminal proceedings when the court feels it to be invalid or unnecessary. This power can only be exercised when the court feels that the legal process is being abused. It also deals with settling disputes by quashing, but the aim is to ensure that the settlement is genuine. It also protects victims and witnesses.  

What is the difference between writ jurisdiction under Article 226 and inherent power under Section 482 of the CrPC?

Article 226 of the Indian Constitution empowers the High Court to issue writs. The powers of this provision extend to civil, criminal as well as administrative matters. It is not limited to any specific area of law. The primary purpose is to protect fundamental rights and provide remedy for the violations of those rights. Section 482 of the CrPC grants the High Court powers to prevent the abuse of court processes by quashing criminal proceedings and FIRs. It can only be invoked in criminal cases. The powers granted by Section 482 can be exercised by a High Court on any subordinate court under its jurisdiction.  

References

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