Maina Singh vs. State of Rajasthan (1976)

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May 6, 2024

The article has been written by Samiksha Singh. This article provides a detailed analysis of the landmark judgement of the Supreme Court in Maina Singh v. State of Rajasthan (1976). It elaborates upon the facts, issues, arguments of the parties and the rationale behind the judgement. In addition to this, the article also discusses the relevant legal provisions referred to in the judgement.

It has been published by Rachit Garg.

Table of Contents

Introduction

The law of crimes generally aims to punish such a person who commits a crime thereby subjecting the offender to such penal punishments which the law prescribes. Accordingly, only the person who commits the crime is held to be liable and guilty of that offence. However, a deviation from this general norm can be found under Sections 34 and 149 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC, 1860”). As per these Sections, it is not just the person who actually commits the crime but also all such persons who were joined with the perpetrator by virtue of a “common intention” or “common object” in the commission of the crime, are also made “jointly liable”. A person can either commit the criminal act himself or through the aid of another person. The purpose of these sections thus is to impose ‘vicarious’ or ‘constructive’ liability on such persons who are jointly involved in the commission of an offence either by virtue of their “common intention” or by virtue of their “common object.”

The present case of Maina Singh v. State of Rajasthan (1976) is an important case in this regard. While Section 34 and 149 of the IPC, 1860 provides when vicarious liability can be imputed, this case of the Supreme Court highlights when vicarious liability cannot be attributed. It was thus observed that in instances where the evidence does not point towards the involvement of any named or unnamed person, a single accused cannot be held liable under Section 34 or 149 of the IPC, 1860.

Details of Maina Singh vs. State of Rajasthan (1976)

Name of the case: Maina Singh v. State of Rajasthan

Citations: (1976) 2 SCC 827; 1976 SCC (Cri) 332

Case type: Criminal Appeal

Bench: Justice R.S. Sarkaria and Justice P.N. Shinghal

Name of the Appellant: Maina Singh

Name of the Respondent: State of Rajasthan

Date of the judgement: 17.03.1976

Name of the Court: Supreme Court of India

Provisions involved: Sections 34, 149, 302, 326 of the IPC, 1860

Facts of Maina Singh vs. State of Rajasthan (1976)

Maina Singh v. State of Rajasthan (1976) was a Criminal Appeal preferred before the Supreme Court of India, which consequently resulted in a decision in Criminal Appeal No. 242/1971. In this case, the appellant, Mr. Maina Singh was convicted of an offence of murder under Section 302 read with Section 34 of IPC, 1860, and an offence of grievous hurt under Section 326 of IPC, 1860. Mr. Maina Singh was convicted of causing, firstly, the death of Mr. Amar Singh, and secondly, causing grievous hurt to one Mr. Ajeet Singh (the son of the deceased). The trial Court had sentenced Mr. Maina Singh to imprisonment for life for murdering Mr. Amar Singh, and also a rigorous imprisonment for three years with a fine of Rs 100/- for causing grievous hurt to Mr. Ajeet Singh. This decision of the trial Court was subsequently upheld by the Rajasthan High Court. Hence, the present appeal before the Supreme Court.

Mr. Maina Singh (the appellant) and Mr. Amar Singh (the deceased) lived in “chak” number 77 GB. One, Mr. Narain Singh resided in a different chak. Mr. Maina had a suspicion that Mr. Amar Singh (the deceased) was supplying information regarding Mr. Maina’s smuggling activities. One day, the accused along with his three sons and Mr. Narain Singh chased the deceased. While attempting to fire a gunshot at the deceased, Mr. Maina Singh hit Mr. Ajeet Singh (son of the deceased) on his legs. Ajeet Singh subsequently jumped into a waterbody to take cover. Later, Maina Singh fired a gunshot which hit the deceased causing the deceased to fall down. Thereafter, the other four accused approached the deceased and inflicted several blows with a “gandasi.” Following this, Mr. Maina Singh additionally inflicted some blows on the deceased with the back end of his gun which broke and fell down. Eventually, Mr. Amar Singh, the deceased, succumbed to death as a result of his injuries.

Judgement of the Trial Court

The trial court only sentenced Mr. Maina Singh and acquitted the other four accused. This was because, while the Sessions Judge was of the view that Mr. Maina Singh may not have committed the offence alone, there was not sufficient or consistent evidence to suggest which of the four accused were involved. Further, the Sessions Judge also considered that there might have been some other person altogether who was involved in the commission of the offence. For this reason, the Sessions Judge gave “benefit of doubt” to the other four accused and acquitted them. However, since there was consistent and cogent circumstantial evidence against Mr. Maina Singh, he was convicted and sentenced.

Appeal to the Rajasthan High Court

There were two appeals preferred to the Rajasthan High Court against the judgement of the Sessions Judge. One of the appeals was made by the State challenging the acquittal of the four accused. The other appeal was preferred by Mr. Maina Singh challenging his conviction. However, the High Court while dismissing these appeals upheld the conviction and sentence by the trial court. Subsequently, Maina Singh preferred an appeal before the Supreme Court challenging the judgement of the Rajasthan High Court by virtue of which Maina Singh’s conviction and sentence under Section 302 read with Section 34, and Section 326 of the IPC, 1860 (as imposed by the Trial Court) were upheld.

Issues raised in Maina Singh vs. State of Rajasthan (1976)

Only one main legal issue was raised in this case:

Whether Mr. Maina Singh alone can be convicted under Section 34 of the IPC, 1860, since all the other co-accused were acquitted and liability could not be attributed to any other unnamed person?

Arguments of the parties

Contentions by the Appellant

Mr. Harbans Singh, the counsel for the appellant, did not challenge the conviction on the basis of the evidence which was used to convict Mr. Maina Singh. The conviction was based on the statement of two witnesses, the recovery of ‘empty cartridges’ near the body of the deceased, Mr. Maina’s gun which was held by him under a licence, medical evidence and the abscondence of Mr. Maina Singh. For this reason, Mr. Harbans Singh made a different line of argument which is stated as follows:

The conviction for murder was based on Section 302 read with Section 34 of the IPC, 1860. The appellant argued that since Section 34 of the IPC deals with “common intention” and all the other co-accused have been acquitted, Mr. Maina Singh alone cannot be convicted for murder under Section 302 read with Section 34 of the IPC, 1860. Accordingly, the argument of the appellant was that it was not permissible for the Sessions Judge or the High Court to consider that Mr. Maina Singh committed any offence in pursuance of any “common intention.” This was because all the “other accused” had been acquitted. Thus, the only course of action that was permissible to the courts was to convict Mr. Maina Singh for those acts which could have been committed by him ‘individually’ without the involvement of any other ‘named’ or ‘unnamed’ person.
The counsel for the appellant further pointed out that the Sessions Judge had noted that a conviction under Section 302 read with Section 149 or 148 of the IPC, 1860 was not possible. While substantiating this finding, the appellant contended that when the other four accused were already acquitted, it cannot be said that Mr. Maina Singh alone committed any offence in furtherance of the “common object” of the “unlawful assembly.”

Contentions by the Respondent

Mr. S.M. Jain, the counsel for the Respondent contended that the other accused were acquitted since the Sessions Judge gave them a ‘benefit of doubt.’ Further, the Sessions Judge did not rule out the possibility of the presence of a common intention. For this reason, the Sessions Judge recorded that either “one or more of the accused” or “some other person” altogether may have been involved alongside Mr. Maina Singh in the commission of the offence. Consequently, according to the counsel for the Respondent, the Sessions Judge and the High Court were justified in convicting Mr. Maina Singh under Section 302 read with Section 34 of the IPC, 1860.

Laws discussed in Maina Singh vs. State of Rajasthan (1976)

Section 34 IPC, 1860

Ingredients under Section 34

The Supreme Court in the case of Sudip Kumar Sen v. State of West Bengal (2016) observed that for Section 34 IPC, 1860 to be invoked, two ingredients must be proved. These are:

Firstly, there should be “several persons” possessing a “common intention” to commit a crime.
Secondly, these several persons should also actually commit a crime in fulfilment of that common intention.

Not a separate offence by itself

While Section 34 of the IPC, 1860 provides for joint liability, it does not per se create a separate offence. This section only aims to make all those persons liable, who by virtue of their common intention, commit a criminal offence. This would be better understood with the help of an illustration. For example, if there are four persons A, B, C, and D. These four persons possess a common intention to poison E, and they also take all the steps necessary to poison E. In that case, it does not matter who actually administers the poison, all the four persons would be liable for poisoning because of their “common intention” to poison E. Thus, Section 34 is not a separate offence on its own. It only penalises all such persons for the result of an act that has been committed by virtue of their common intention.

The Supreme Court in the case of Gurdatta Mal v. State of Uttar Pradesh (1964) made a similar observation. The Hon’ble Court remarked that Section 34 of the IPC, 1860 does not create a separate offence. Once the essentials of Section 34 are made out, all the accused would be liable. Meaning thereby, if three persons possess a common intention to murder someone, and they take all the steps necessary to commit the offence, all the three would be liable for the offence of murder.

Common intention does not mean same intention

The term “common” does not mean “same” or “similar”. For this very reason, the term “common intention” cannot be construed as “same intention” to attribute liability under Section 34 of the IPC, 1860. The following illustration would be helpful in understanding the difference. For example, there is a group of students who go on to protest against the administration. The common intention of the group of students herein may be to stop the administration from taking some harsh decisions. However, if during such a protest, two or more of the students start pelting stones or destroying property, these two or more students alone would be responsible for such acts. The remaining students cannot be held liable for the acts of two or more students. This is because it cannot be said that the remaining students necessarily possessed the intention to cause harm to any person or property. Deriving thereby, while the common intention of all the students was to convince the administration to pay heed to their demands, they did not possess the same or similar intention to hurt any person or damage any property.

The Supreme Court in Hardev Singh v. State of Punjab (1975) where the target of assault was one Kewal Singh, however, in the course of attack, one of the accused killed another man, the question was whether all the three accused would be liable? In this case, the Supreme Court answered in negative. It was observed that the act of one of the accused in killing another man was his individual act. There was no question of common intention.

Participation in the act

Participation in the commission of the offence is the most crucial element for invoking the principle of joint liability. It is imperative for every member in the group sharing the “common intention” to participate. As was observed however by the Supreme Court in Virendra Singh v. State of Madhya Pradesh (2010), “participation” does not imply “physical presence.” It depends on the facts and circumstances of the case.

In the case of Suresh Sakharam Nangare v. State of Maharashtra (2012), the relationship between “common intention” and participation in invoking Section 34 of the IPC, 1860 was examined. It was observed that in instances where common intention is established but any direct act is not attributable to an individual, Section 34 would be invoked. However, in cases where participation of the individual in the offence is established yet common intention cannot be found, Section 34 of the IPC, 1860 would not be attracted.

Section 149 IPC, 1860

Scope of Section 149 IPC

Section 149 IPC, 1860 attributes guilt to every member of an unlawful assembly when a criminal act is committed in pursuance of a common object. The attribution of guilt under Section 149 of the IPC, 1860 has two limbs:

Firstly, if there is a “common object” and an offence/criminal act is committed in pursuance of that “common object”, Section 149 would be attracted; or
Secondly, If the members “knew” that there is a likelihood of commission of an offence. In such a scenario, all such members who knew about the likelihood of the commission of the offence would be liable.

Hence, the liability under Section 149 of the IPC, 1860 arises from merely being a member of an unlawful assembly. Thus, whenever a criminal act is committed in pursuance of a common object, each and every person of such unlawful assembly is liable. It does not matter whether that member himself committed the act or not.

It is important to note, however, that an assembly may not necessarily be an “unlawful” one right from the beginning. The assembly may subsequently qualify as an unlawful assembly when it adopts one or more “common objects” specified under Section 141 of the IPC, 1860.

Test to determine common object

Previously, in the case of Baladin v. State of Uttar Pradesh (1955), the Supreme Court opined that mere presence is not enough to render a person as a member of an unlawful assembly. For a person to qualify as a “member”, there must be something to show that such a person either did something or omitted to do something. However, a larger bench of the Supreme Court examined this proposition in Masalti v. State of Uttar Pradesh (1964). It was observed therein that it would be incorrect to state that a person would only be considered a member of the unlawful assembly, if it can be established that such person committed either some illegal act or omission. It was clarified that Section 149 of the IPC, 1860 prescribes that:

If any member of such assembly (regardless of the fact that which member commits the act) commits an offence in order to accomplish the “common object”; or
The members had knowledge of the likelihood of the commission of such offence in pursuance of such common object,

then, each and every person that formed part of that unlawful assembly would be liable. It was thus clarified that for Section 149 of the IPC, 1860 to operate, it is not necessary that such a criminal act is actually committed by each and every member.

However, when the allegation is against a very large population, care and caution must be exercised by the courts in examining the evidence. The Supreme Court in Ramachandran v. State of Kerala (2011) opined that in instances where the allegation is against a large population, it must be seen as to what was the total number of persons involved, whether such persons were armed or were mere spectators, nature of injuries and so on. Even offences which do not directly further the “common object” may also attract liability under Section 149 of the IPC, 1860 if the members had knowledge that there was a likelihood of commission of such offence.

Difference between section 34 and section 149 of the IPC, 1860

While both the sections attribute constructive liability, they differ in some aspects. These are:

For Section 149 of the IPC, 1860 to apply there must be a minimum of five persons who form part of the unlawful assembly. There is no such minimum or fixed number under Section 34 of IPC, 1860 for there to be a “common intention.”
The definition of what constitutes “common object” is provided under Section 141 of the IPC, 1860. However, there is no such definition of “common intention” under Section 34 of the IPC, 1860. Deriving thereby, “common intention” could imply any intention to commit any criminal act.
For Section 34 of the IPC, 1860 to apply, any act, no matter how small, must be done. However, under Section 149 of the IPC, 1860 merely being a member of an unlawful assembly can attract liability.
Section 34 of the IPC, 1860 is not a separate offence in itself. However, Section 149 of the IPC, 1860 creates a distinct offence.

Section 302 IPC, 1860

Section 302 IPC, 1860 prescribes the punishment for murder. According to Section 302, any person who commits the offence of murder can only be awarded either of the two punishments. These being:

Life imprisonment; or
Death.

Additionally, the convict would also be liable to pay a fine.

Section 326 IPC, 1860

Meaning of grievous hurt

Section 326 IPC, 1860 deals with the voluntary act of causing grievous hurt by an individual by means of a dangerous weapon. Section 320 of the IPC, 1860 defines what constitutes grievous hurt. Accordingly, grievous hurt constitutes the following:

When there is an act of “emasculation”;
If the victim is permanently deprived of sight of any of the eye as a result of the hurt;
When the victim is permanently deprived of hearing of either of the ear as a result of the hurt;
When the hurt results in any permanent loss of any joint or limb;
When the sufferer permanently loses the power to use any joint or limb as a result of the hurt;
If the hurt permanently disfigures either an individual’s head or face;
If the hurt results in any kind of fracture or dislocation of an individual’s bone or tooth;
Any kind of hurt that threatens the life of the individual. It also includes those types of hurt wherein the victim suffers from severe pain for a period of twenty days. Additionally, if an individual is unable to carry out his ordinary pursuits, that too would constitute grievous hurt.

Accordingly, as per Section 326 of the IPC, 1860,

if anyone uses an instrument that is meant for shooting, stabbing, cutting (or something when used like a weapon has the likelihood to cause death) to cause grievous hurt,
employs either fire or any heated substance,
uses poison or corrosive substance,
any substance which is explosive in nature,
any substance that is harmful to the human body when inhaled, swallowed or received into blood,
uses an animal,

would be punished with either imprisonment for life, or imprisonment extendable to ten years and fine.

Exceptions under section 335

Section 335 of the IPC, 1860 provides an exception to grievous hurt under Section 326. Accordingly, for Section 335 to apply:

Firstly, An individual must be instigated to voluntarily cause grievous hurt;
Secondly, such provocation must be both “sudden and grave”;
Thirdly, the individual who causes grievous hurt upon provocation must not possess the intention to cause such hurt to any other person except the one who provoked him;
Fourthly, the individual must not have the knowledge that he himself is likely to cause such hurt to any other person except the one who provoked him.

While Section 335 also deals with grievous hurt, the condition of provocation acts as a mitigating factor. Thus, the punishment herein is an imprisonment extendable to four years, or a fine up to Rs. 2000/- or both. In K M Nanavati v. State of Maharashtra (1961), the standard for “grave and sudden provocation” was whether a reasonable man similarly placed as the accused would also be instigated enough to lose his control.

Judgement in Maina Singh vs. State of Rajasthan (1976)

The Supreme Court, on the basis of the facts of the case, observed that Section 34 or Section 149 of the IPC, 1860 cannot be invoked in the instant case to convict the accused. The Hon’ble Supreme Court noted that there was no evidence to ascertain that Mr. Maina Singh committed the offence with any other “unnamed person.” For this reason, the Supreme Court opined that when the other accused were acquitted by affording them a “benefit of doubt”, there is no reason to take a position that Mr. Maina would have committed the offence with the aid of some other person. Accordingly, the Supreme Court opined that the present case did not attract either Section 34 or 149 of the IPC, 1860. This was simply because the presence of any other named or unnamed person could not be determined. For this reason, it was observed that if anything, Mr. Maina Singh, could only be punished for those offences which he may have committed in his individual capacity.

Further, in view of the facts of this case, the Supreme Court reasoned that it was not possible to come to a conclusion that the death of the deceased was caused owing to the injuries inflicted by Mr. Maina Singh. However, since one of the injuries caused by him was “grievous” in nature, Mr. Maina Singh would be guilty under Section 326 of the IPC, 1860 for “voluntarily causing grievous hurt.” In this light, the Supreme Court altered Mr. Maina’s conviction. The conviction under Section 302 read with Section 34 of the IPC, 1860 was changed to a conviction under Section 326 of the IPC, 1860. Further, the sentence of the accused was reduced to only a ‘rigorous imprisonment’ for a period of 10 years. However, the other sentence, which was a rigorous imprisonment of three years and Rs. 100/- fine for causing grievous hurt to Mr. Ajeet Singh remained unaltered.

Rationale of the case

In the absence of evidence to suggest the involvement of any other ‘unnamed’ person, the accused alone cannot be convicted under Section 34/149 of IPC, 1860

The Sessions Court had previously acquitted the other four co-accused because there was insufficient and inconsistent evidence regarding their participation in the crime. However, the Sessions Court, while convicting Mr. Maina Singh under Section 302 read with Section 34 of the IPC, 1860, had recorded that there may have been certain other ‘unnamed’ persons involved in the commission. The first question before the Apex Court, thus, was whether the Courts could come to a conclusion that certain unnamed persons were involved in the crime. If yes, then under what circumstances?

The Supreme Court answered in affirmative. It was observed that the courts could come to such a conclusion only if there was some evidence to suggest so. This would be better understood with the help of an illustration. In a given case, for example, the charge discloses only four persons A, B, C, and D as co-accused. While presenting the evidence also, the prosecution witness only provides testimony regarding A, B, C and D. In such a scenario as well, the courts could come to a conclusion that there may have been certain other unnamed persons who were involved in the commission of the crime alongside the accused. However, there has to be some evidence to support that conclusion.

In this case, right from its inception, Mr. Maina Singh and only the other four co-accused were alleged to have participated in the crime. There was no allegation either in the charge-sheet or in the FIR regarding the involvement of some other person. Further, the testimony of the witnesses were also limited to the four accused. There was no evidence be it direct or circumstantial to suggest the involvement of any other person. In such a scenario, the view that Mr. Maina Singh may have committed the crime with some other person is untenable.

The Supreme Court herein relied upon the case of Mohan Singh v. State of Punjab (1962). This case was one of an unlawful assembly where 2 accused were acquitted and 2 were convicted under Section 302 read with Section 149 of IPC, 1860. The Hon’ble Supreme Court made an observation regarding liability of one or more of the accused in an unlawful assembly when one or more of the accused are acquitted. For there to be an unlawful assembly, there must be at least five persons with “common object.” The Supreme Court observed that there may be a situation where the evidence and the charge only suggest the name of five persons and no other persons. In that case, if some of the five are acquitted, then the remaining cannot be tried under Section 149 of the IPC, 1860. This is because at least five persons are required for there to be an unlawful assembly. Given that the charge and evidence is confined only to those five persons and no other, the acquittal of some would make a case under Section 149 of the IPC, 1860 not maintainable.

However, there may be a situation where although the charge only names five or more persons yet there is evidence to suggest the involvement of other unnamed persons. In such instances, the acquittal of some of the named accused would not defeat a case under Section 149 of the IPC, 1860. This is because in such a case it may be possible that those whose names were mentioned in the charge were wrongly accused. It may also be that those whose names were not mentioned in the charge were such persons who could not be identified. Thus, if there is evidence to show that “some other persons” were involved in the crime, a charge under Section 149 of the IPC, 1860 would be valid. This is because in such situations, the Court is at least able to reach to the conclusion that there was an unlawful assembly comprising five or more persons. It is only that all the members of the unlawful assembly could not be identified.

If the other co-accused are acquitted and the evidence does not suggest the presence of any other unnamed person, one person alone cannot be charged under Section 34 of the IPC, 1860.

Section 34 of the IPC, 1860 provides for “common intention”. The very nature of this section is to extend liability to “several persons”, who by virtue of their “common intention” participate in the commission of a criminal act. For this reason, an accused generally may be sentenced and punished for those actions in which he is individually responsible. However, one person alone cannot be charged under a Section, which by its very nature is not meant to inflict individual culpability. Section 34 of the IPC, 1860 is “participative” in nature.

In this case, the charge previously was one of unlawful assembly under Section 149 of the IPC, 1860 wherein Mr. Maina Singh, along with other four persons were accused. There was no other person who was charged except the five of them. Further, there was also no evidence to suggest the involvement of “any other unnamed person” except Mr. Maina Singh and the four co-accused. Thus, if the other four accused were acquitted, and there was no evidence to suggest the involvement of any other unnamed person, there can be no “common intention” or “unlawful assembly” by Mr. Maina Singh alone. Therefore, if anything, Mr. Maina Singh could only be convicted or sentenced for those offences which can be proved to have been committed by him individually. For this reason, the Supreme Court altered Mr. Maina’s conviction under Section 302 read with Section 34 of the IPC, 1860 to one under Section 326 of the IPC, 1860.

Conviction for grievous hurt

As already discussed, the Supreme Court observed that Mr. Maina would only be responsible for offences committed by him in his individual capacity. It was held without doubt that the “blunt weapon injuries” and “firearm” were inflicted by Maina Singh. The post-mortem report provided that while in totality all the injuries were together sufficient to cause the death of the deceased, it could not be determined with certainty whether any injury alone was sufficient to cause death. For this reason, while the injuries inflicted by Mr. Maina Singh along with other injuries were sufficient to cause death, it could not be concluded whether the injury inflicted by Mr. Maina Singh alone was sufficient to cause death. However, since one of the injuries was “grievous” in nature, Mr. Maina Singh was held to be guilty under Section 326 of the IPC, 1860. Thus, his sentence of life imprisonment under Section 302 read with Section 34 of the IPC, 1860 was altered and reduced to only 10 years of rigorous imprisonment for causing grievous hurt to the deceased. However, his sentence of three years rigorous imprisonment with fine for causing “grievous hurt” to Ajeet Singh remained unaltered.

Conviction and Sentence of the Appellant after the appeal

Earlier convicted under Section 302 read with Section 34 of the IPC, 1860 and sentenced for life for murder of Amar Singh – Conviction altered from Section 302/34 to Section 326 of the IPC, 1860 and sentence reduced to 10 years rigorous imprisonment.
Earlier convicted under Section 326 of the IPC, 1860 and sentenced to 3 years rigorous imprisonment with Rs 100/- fine for causing grievous injuries to Ajeet Singh (son of the deceased) – This conviction and sentence remained unaltered.

As observed by the Supreme Court, both these sentences were to run concurrently.

Analysis of Maina Singh vs. State of Rajasthan (1976)

The only question that the Supreme Court was faced with in this case was whether the conviction of the accused, Mr. Maina Singh, which was upheld by the Rajasthan High Court, was justified under Section 34 of the IPC, 1860. It is imperative to mention that Section 34 of the IPC, 1860 lays down a provision for “common intention of several persons.” Meaning thereby, Section 34, itself provides for commission of crime by more than one person as a result of their “common intention”. However, if all the co-accused are acquitted and there is no evidence on record to suggest the participation of any other person, one person alone cannot be convicted under Section 34 of IPC, 1860. This is because, Section 34 emphasises upon the “participative” nature of the crime and the requirement of “common intention” of several persons. In the event that such participation of either the co-accused or any other unnamed person cannot be established, a single person cannot be convicted under Section 34 of the IPC, 1860. Such accused may be held guilty of only those offences for which he is individually responsible. For this reason, since the evidence was clear to show that Mr. Maina Singh was responsible for causing grievous hurt to the deceased and hence, he was sentenced to rigorous imprisonment for 10 years under Section 326 of the IPC, 1860.

Conclusion

While Sections 34 and 149 of the IPC, 1860 impose vicarious liability, it is important to understand when these provisions can be attracted. Section 34 of the IPC, 1860 provides for a criminal act that is committed in pursuance of the “common intention” of several persons. On the other hand, Section 149 of the IPC, 1860 creates a distinct offence by imposing guilt on members of an “unlawful assembly” who either commit an offence in pursuance of the “common object” or at least have knowledge of the likelihood of the commission of the offence. However, it is important to understand when these provisions can be invoked. The present case of Maina Singh v. State of Rajasthan (1976) provides an appropriate example of the same. This case highlighted that in the event that all the other accused are acquitted and the evidence on record does not provide for the involvement of any other unnamed person, then one person alone cannot be held guilty of an offence by virtue of Section 34 of the IPC, 1860. If benefit of doubt is provided to all the other accused and the evidence cannot point guilt towards any unnamed or unidentified person, one person would not be convicted for any offence read with Section 34 of the IPC, 1860.

Frequently Asked Questions (FAQs)

What is the difference between common intention and common object?

As was observed in Chittarmal v. State of Rajasthan (2003), common intention signifies a consensus or previous meeting of minds. As opposed to this, a common object does not mandatorily require a prior meeting of minds. While in an unlawful assembly, the members do possess a common object, the intention of these members may differ.

When can “common intention” be formed? Is there any specified time gap required for the formation of a common intention under Section 34 of IPC, 1860?

For the purpose of Section 34 of IPC, 1860, “common intention” implies “common design”. “common intention” is not a physical rather a “psychological” phenomenon. For there to be a common intention, it is not necessary for all the co-accused to discuss and formulate a plan. It can be formed even a “minute before” the commission of the crime. Further, it can also be formed during the commission of the act. The Supreme Court in a very recent decision of Ram Naresh v. State of UP (2023) affirmed this position.

Can common intention be implied based on the accused’s presence near the scene of the crime?

No, “common intention” under Section 34 of the IPC, 1860 cannot be implied for the sole reason that such an accused was present near the scene of the crime. The Division Bench of the Supreme Court in Velthepu Srinivas and Others v. State of Andhra Pradesh (2024) observed that for Section 34 of the IPC, 1860 to be attracted, it is imperative that the accused possessed “common intention” to commit the crime. In this case, it was observed that since the accused (A3) did not actually possess the intent to commit murder, there can be no implication of “common intention”.

Can a charge under Section 149 for unlawful assembly be substituted with Section 34 for common intention, if common object is not proved?

If the prosecution is unable to establish “common object” under Section 149 of the IPC, 1860, they can still pursue a charge under Section 34 of the IPC, 1860 for “common intention. However, in such a case, as was observed in Chittarmal v. State of Rajasthan (2003), it must clearly be determined that there existed a “common intention” to commit the offence. The Supreme Court opined that while Section 149 may in some instances overlap with Section 34 of the IPC, 1860, it must still be seen whether the “common object” actually also involves a “common intention.”

Can there be any vicarious/constructive liability in instances of free fight?

In instances of sudden fight, constructive or vicarious liability cannot be imposed. This is simply because such fights break out without any prior plan. For this reason, every person would be individually responsible for those acts which have been committed by the individual himself. This observation has been made by the Supreme Court in numerous cases like Kanbi Nanji Virji v. State of Gujarat (1969), Munir Khan v. State of Uttar Pradesh (1970), Chinu Patel v. State of Orissa (1989), Lalji v. State of Uttar Pradesh (1973). Further, the Supreme Court in Munir Khan v. State of Uttar Pradesh (1970) observed that Section 149 of the IPC, 1860 cannot be attracted in instances of mutual fight because there can be no “common object” in such fights.

References

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Role of emotion in content marketing : building connections through writing

By

Vanshika Kapoor

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May 5, 2024

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This article has been written by Ramesh P. Elaidam pursuing a Diploma in Content Marketing and Strategy from Skill Arbitrage.

This article has been edited and published by Shashwat Kaushik.

Table of Contents

Introduction

Human beings are the most emotional creatures on earth and on top of that, they are the best communicators too. And let’s face it, we human beings are not rational or logical beings. Rather, we are emotional beings. This drives our behaviour and decision-making to a great extent. No matter how much we tell ourselves that we are rational and clear logical thinking beings and always make a purchase on logic rather than emotions, the human brain is wired to react to emotions.

The marketing world has utilised these two factors in tapping into customers’ buying decisions and creating connections that ensure that they become loyal customers to brands. This becomes pretty simple once we come to accept that emotion has everything to do with creating a loyal and enthusiastic clientele. Emotional marketing primarily uses the emotional quotient to appeal to your customers. It also endeavours to make existing and new customers pay attention and want to buy your products. This takes into account the fact that emotions are what our brains process most efficiently.

Facts do not have the same advantage as emotions. I would suggest a simple test to drive this home; try saying the different states in India and their capitals. You might be able to do it, but I bet it won’t be easy. On the other hand, ask any of the kids of the ‘90s about the Pepsi ad, “Yehi hai right choice baby! I bet you will be rewarded with an instant smile as they remember the anticipation of the ad, which featured Juhi Chawla and Remo Fernandes, the buildup, and finally, when it came out, how it resonated with their generation.

In this article, we take a look at how emotional marketing can make a huge difference in how brands and products can be marketed. Along with this, we will have a look at some facts and figures too. Let us have a look at figuring out how to leverage emotions to effectively market your products and how different types of emotions can affect consumer behaviour and decisions. We can also take a look at some of the emotions and how they help catch attention and influence buying behaviours. Learning how to dissect these effectively and, in the process, learn how to craft such masterpieces of emotional marketing by focusing on best practices and techniques is pretty cool. We will also figure out how to measure and optimise the impact of these marketing messages, focusing on how to use data and feedback.

Finally, we will conclude with a summary of what we learned and a few actionable tips for implementing emotional marketing in businesses. An attempt will be made to provide inputs on how to do market research and segment audiences based on emotional factors and how emotional words and images can create powerful, catchy headlines and subs, You will also have a glance at storytelling techniques and how they help in creating emotional narratives and scenarios, as well as how to refine them based on feedback and data. We will also reflect on the ethical use of emotional marketing.

What is emotional marketing and how does it matter

In its simplest form, emotional marketing is the creation of a marketing strategy that connects with human emotions and persuades customers to buy a product, service, or brand. The effectiveness of good emotional marketing is that it makes your audience easier to connect with, engage, convince, and retain. Let’s have a look at a couple of figures to explain why emotional marketing is ranked so highly among professionals.

According to Harvard Business Review (HBR), the emotional connection between a customer and a company is 52% more valuable than customer satisfaction

Moz, one of the SEO giants, states that anger-inducing content has a 38% chance of going viral. In turn, content based on awe has a 34% chance of doing so.

The power of emotions

There is no hiding the fact that emotions rule when marketing experts sit down to create new marketing strategies. Emotional marketing is one of the best bets for marketers to ensure that their campaigns succeed. However, there are still nay-sayers who have failed to realise the importance of emotional marketing and this article is my humble attempt to ensure that these dinosaurs are converted.

The emotional approach to marketing goes beyond the old maxim of collecting data, figuring out the problems, and addressing the needs of the customer. How does it do that?

Psychology behind emotional marketing

Emotional marketing tries to not only identify the pain points of the end customers but also how to exploit those. What are the emotions that customers derive from your company’s products? What are the emotions that the customers are trying to experience? How to go about figuring out the ideal emotion that you need to develop in your customers so that they will buy your products. Finally, you have to figure out what emotions you do not want your strategy to generate, as having the wrong emotion generated can have a devastating effect on product sales.

Simply put, you can divide emotions into two positive and negative. Positive emotions are feel-good emotions and negative emotions are fear and anger. Surprisingly, both of these emotions can work equally well at persuading customers to make purchases. It is up to the marketing team to identify what works best for the business and generate the appropriate campaigns. To put things simply, let us try to identify a few.

Self-esteem

This targets the customer’s desire to feel good about themselves. They are a big “yes” in marketing. Personalised messages to your target audience are a surefire way to boost sales and create a recurrent buyer base.

Authority and Experts /Reviews and Testimonials

Hearing from an expert makes a claim more believable and influences customers. A famous chef recommending a sauce or masala product is sure to boost its sales. Plus, having positive testimonials and reviews from customers will create a positive effect on your sales by building trust and establishing your credibility.

Happiness

Campaigns that generate feel-good emotions are surefire hits with the customers and can influence their behaviours. Enthusiasm is contagious and starting the ball rolling with a good campaign will ensure that you are halfway there to success. Incorporate a sense of fun, joy, success, and achievement into your marketing.

Sadness

Showcase a problem, how bad it is, and how it can create problems for someone, and then provide them with a solution to address the issue. Showing the story of someone being sad to empower them will always boost your sales when done effectively. Sadness tends to create empathy and empathy leads to better sales.

Fear

Fear has to be handled carefully. It is a primal emotion that can pay immense dividends when sold effectively but can also backfire if not handled properly. The term FOMO, which depicts fear of missing out, is a cannon in advertising and marketing. Premium offers (limited edition products) and limited-time offers are some of the best examples of these.

Anger and disgust

Take a negative story and derive an inspiring outcome from it and you have a winner. Graphic images of cruelty to pets have been long used to encourage people to take up animal rights and have proved to have been very effective. Similarly, addressing a pain point with a product of your own will address the anger and frustration of the customer while boosting your products

Storytelling

Storytelling is a major way marketing agencies and companies get their message across to their customers. Done effectively, it helps create your brand’s story and lets you get in sync with your audience’s feelings and emotions. Stories can be leveraged effectively to mirror and enhance emotions into “grab you by your throat” messages that will get your audience every time. Every good story should use a narrative structure with a well-defined beginning, middle, and end which includes characters, conflicts, and resolutions.

Impact of emotional marketing on consumer behaviour

Emotion sells, and emotional marketing is one of the biggest and most successful tools in today’s world. Always use emotions, feelings, and sensations to structure your campaigns and strategies based on them. Emotional marketing is the process of connecting with your customers and persuading them to take some desirable action. By better connecting with your customers’ emotions, not only will they be satisfied with your products, but they will also become loyal customers who will prefer your brand over others. Emotional marketing is a powerful tool to connect with your customers. But it comes with some caveats that you should be aware of.

Ethical considerations in emotional marketing

Emotional appeals can be extremely powerful, can even be considered extremely manipulative and need mature and responsible handling. Also, the potential impact on the vulnerable sections of the target clientele needs to be carefully considered and the message modified as needed. For example, marketing health products too aggressively can lead to people with actual or imagined health issues being placed at risk of buying things that might not be indicated for their problems, and that can even be counter-indicative. Thus, it behoves your marketing team to always consider the audience as a whole and ensure the message has no negative societal trends.

Your team should be good enough to ensure that the message is communicated effectively. This requires a good match between the marketing team and the product. Your campaign should be respectful and inclusive to ensure that there are no negative pushbacks. Never tell the customer in front of their face what to do. Show them what your product can do and what you think it can deliver, and let the customers connect the dots.

Increasing your emotional capital with customers will ensure that they are emotionally invested, leading to increased purchasing, loyalty, and retention. An ideal emotional marketing campaign will deliver the same or similar results as a good B2C, one-on-one, or one-to-few marketing campaign.

Conclusion

In conclusion, the importance of emotion in content marketing cannot be emphasised enough. Emotional marketing is a powerful tool that allows brands to connect with their audience on a deeper level, influencing their behaviour and creating lasting connections. By understanding and leveraging different types of emotions, marketers can create campaigns that resonate with their target audience, driving engagement and loyalty.

It’s important to remember that emotional marketing should be used ethically and responsibly. Marketers should consider the impact of their campaigns on vulnerable populations and ensure that their messages are respectful and inclusive.

Overall, emotional marketing is a valuable strategy for businesses looking to create meaningful connections with their customers. By tapping into the power of emotion, brands can drive sales, loyalty, and retention, ultimately leading to long-term success.

References

Understanding copyright issues entailing deepfakes in India

By

Vanshika Kapoor

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May 5, 2024

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This article has been written by Adv. Sanjay Pandey, practising in District & Sessions Court, Varanasi and having more than 10 years of experience in teaching Law of Contract. He also completed a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho in November, 2023.

This article has been edited and published by Shashwat Kaushik.

Table of Contents

Introduction

The discovery of atoms and subatomic particles unveiled a new realm of understanding in science, and the rise of images and videos on the internet has reshaped our perception of the world around us, This time, experimenting with pixels and frequencies is ushering in a transformative era in the digital realm.

However, with great power comes great peril, The proliferation of deep fakes has threatened some issues like authenticity, copyright infringement, identity theft, misinformation, and the impact of visual content on mental health. These hyper-realistic manipulations, fueled by advances in artificial intelligence, pose a formidable challenge to our social viability and legal accountability.

In today’s interconnected world, where information flows effortlessly across screens, the new deep fake technology tends to put a big question mark on the very fabric of creativity and authorship. In this article, we will understand can copyright law in India deal with deep fakes?

Today, many legal advancements have been evolving around deep fakes but they are not to the T. They are still work-in-progress.

Brief history of AI, machine learning and copyright

Even though computers were performing well and appropriately, carrying out the tasks they were used to being given commands for, no one called them intelligent until the early fifties. Rather, it would be better to say that, till then, no one had even thought that a machine could be as intelligent as a human.

The term ‘Artificial Intelligence’ was heard for the first time in 1956 when computer scientists Allen Newell, Cliff Shaw and Herbert A. Simon

developed a programme known as the “general problem solver.” This programmeme was based on the ‘Physical Symbol System Hypothesis’ and is considered to be the first artificial intelligence programmeme. Their argument was that if a machine could be programmed to interpret and connect with symbols, it would exhibit intelligence. The programme was showcased during the Dartmouth Summer Research Project on Artificial Intelligence (DSRPAI), organised by John McCarthy and Marvin Minsky in the same year, where the term ‘Artificial Intelligence’ was used by John McCarthy, the father of artificial intelligence.

The term ‘Machine Learning’ was brought into vogue by the American computer scientist Arthur Samuel. He is also considered to be the father of machine learning. He developed the programme ‘Game of Checkers’ in 1952. The programme was designed in such a way that the machine could learn by playing against itself. The machine used to monitor its own moves, could plan a strategy and this way it gradually acquired the ability to win. As the machine played more and more, it could learn more.

The development of artificial intelligence and machine learning was going on at a slow pace till the end of the eighties, despite the invention of first Computer Neural Network by Frank Rosenblatt in 1957, the first chatbot Eliza in 1964, and the first robot, Shakey in 1969,

With the advent of the internet in the 1990s, people around the world started creating huge amounts of data, resulting in the explosive growth of AI and machine learning systems.

Copyright legislation in independent India, more or less, emerged concurrently with the advent of artificial intelligence and machine learning technologies. The Indian Copyright Act was enacted in 1957 and, unlike the Act of 1914 passed by the British Government, incorporated the principles of the Berne Convention of 1886.

Since its enactment, the legislation has undergone several amendments to bring itself in line with all the international copyright conventions and treaties, the last being in 2012. Even then, there was no uproar in the world about deep fakes.

Artificial intelligence, machine learning, deepfake, copyright, infringement

Artificial intelligence

Artificial intelligence, or AI, is a branch of computer science. It can be defined as a system that reflects human behaviour and human intelligence, such as reasoning, logical thinking, judging and making its own decisions to solve complex problems. Artificial Intelligence is a broader term which encompasses various applications within it, like machine learning, deep learning, robotics, neural networks, natural language processing, etc.

Machine learning

Like old-fashioned AI, which was programmed, a machine learning system does not work with instructions; rather, it uses data, both labelled and unlabelled, to learn something new by identifying patterns. Thus, machine learning is a branch of AI that employs algorithms capable of learning from data in order to make predictions. Data is the oil for a machine learning system; the more it feeds on data, the easier it is for the machine to learn quickly and identify patterns.

Deep fake

Deep fake is an umbrella term for AI-generated fake audios, videos and images created with the help of advanced machine learning programmes, i.e., deep learning. These morphed images, videos and audio recordings are so realistic that it becomes impossible for the viewers or listeners to differentiate between the real and the fake. Such fake videos, audios and images are also called synthetic media.

No universal definition of deep fake has been accepted yet. Deep fake’ is a portmanteau of the words “deep learning” and “fake”.

Deep fakes are made by using powerful deep learning algorithms, i.e., ‘Generative Adversarial Networks’ or GANs. In the GAN model, one type of data is input to get the same output data.

A GAN model has two elements, a generator and a discriminator. The generator tries to recreate existing data (an image, audio, or video) and the discriminator tries to spot the difference between the real data and the data that the generator is trying to recreate. These two parts work together repeatedly in a competition until the generator creates the output data so realistic that the discriminator can’t tell the difference any further. This way, the generator’s ability to create realistic data is gradually improved, and over time, the generator becomes better and better at creating realistic data, resulting in deep fake media.

Today, deep fakes have become a matter of concern as they have gone beyond just face swaps. It has not only forced the public to believe a false event, something that never took place, or a false message that was never given, but has also raised some serious legal, moral and ethical issues.

Copyright

Copyright refers to the legal ownership granted to creators over their literary and artistic creations, encompassing a wide array of works including books, music, paintings, films, computer programmes, and architecture.

Copyright is granted to the creators for a limited period of time with a view to protecting their work from theft or misuse and to enjoy the monopoly of reproduction, distribution, display, performance and alteration of their works. Only the original creators and anyone else they give authorization to have the exclusive right to reproduce the work.

Infringement

Infringement may take any form, including a violation of any provision of law or a breach of any terms of an agreement or any other unauthorised act, like aiding, abetting, or preparing for illegal activities or criminal offences.

From the ongoing discourse, it’s evident that deepfake creation involves two distinct types of data: input data and output data, which mirror the input data. In the realm of copyright law, two immediate questions arise:

Is the copyright of the input data owners violated when their copyrighted material is used without their consent to generate a deep fake? If so, what legal measures safeguard their copyright?

Who retains the copyright ownership of the resultant output data—the individual who inputs the data into the network, the machine responsible for generating the output, or the company owning the machine?

Deep fake ramifications around copyright and authorship

In the previous section of this article, we saw that the process of creating deep fakes raises two issues of copyright infringement and authorship. Prior to delving into India’s stance on these two emerging issues posed by deepfake technology, let’s first explore what the other related concerns are surrounding deepfakes.

Privacy issues: data protection and the right to privacy are correlated

In this digital age, concerns about privacy have intensified due to the proliferation of technology and the collection, storage, and analysis of vast amounts of personal data. Challenges to the right to privacy become more severe, due to surveillance programmes, corporate data mining, and emerging technologies like facial recognition and biometric identification. Where data theft is a concern of data protection laws, the right to privacy has emerged as a fundamental human right in the interconnected world we live in.

Every individual has the right to control their personal information and activities. Stealing someone’s face or mimicking their voice without their consent is a blatant violation of their right to privacy.

Indiscriminate rise in deep fakes poses a threat to authors in maintaining the integrity of their creative process and disincentivizing them to take full benefit from their intellectual property. However, the data used for generating deep fakes may or may not be copyrighted.

Ethical issues

Violating an individual’s right to control how their likeness and their intellectual property are used raises ethical concerns about privacy and an individual’s autonomy. Deepfakes can be used to create false or misleading content that misrepresents individuals, leading to reputational harm or fraud. This misuse of copyrighted material can have serious ethical implications, especially when used to manipulate public opinion or deceive others.

Deepfakes can be used to create harmful and malicious content, such as revenge porn or fake news, which can cause emotional distress, damage reputations, and incite violence. The unauthorised use of copyrighted material in such contexts exacerbates the ethical issues involved.

Intermediaries responsibility

Another discussion around deep fakes is whether intermediaries like social media platforms can be held responsible for copyright infringement. If yes, to what extent should they be held liable? What is the law for this?

The existing technology for detecting deep fakes has an accuracy rate of around 65%, making it difficult for intermediaries to comply with takedown rules efficiently.

In 2019, Facebook took part in the Deep Fake Detection Challenge (DFDC), an event organised online by Facebook, Microsoft, and other partners where participants from around the world were invited to develop algorithms capable of detecting deepfake videos. The algorithm that won the contest, when tested against a black box dataset, achieved a detection rate of 65.18% in the challenge.

Copyright to AI generated work

Deepfake is such a controversial technology that is being discussed vigorously these days, it seems like a double-edged sword. Before examining the copyright law in India regarding deepfakes, let us examine the question, Can a machine or AI claim copyright in the work created by it? The answer to this question lies in the legal framework of different territorial jurisdictions.

The case of Kristina Kashtanova and her comic book ‘Zarya of the Dawn’

It brings to light the intricate legalities surrounding AI-generated content and copyright protection in the United States. The US Copyright Office (USCO) rejected the AI-generated portions of her work on the ground that AI-generated works lack human authorship. It said that a work can be copyrighted only if created with the aid of AI but if wholly created by AI, it would not be protectable.

While the US Supreme Court limits copyright protection to works grounded in human creativity, what if Kashtanova had created her work in the UK? The UK law acknowledges computer-generated works, including deep fakes, and considers the person who facilitated their creation to be the author.

Section 178 of the Copyright, Designs and Patents Act, 1988, defines a computer-generated work as a creation that is produced entirely by a computer without any human endeavour involved in the process. Section 9(3) of the Act further stipulates that when it comes to computer-generated works, the individual who sets up the necessary arrangements for their creation is considered the author.

Similar to the UK law, the Indian Copyright Act of 1957 also acknowledges, albeit to a restricted degree, the person responsible for creating a computer-generated work as its author. However, it does not grant authorship to the non-human entity, the algorithm or the AI system. Under the Copyright Act of 1957, as amended by the Copyright (Amendment) Act of 2012, Section 2(d)(vi)(iv) states that the person who assists with a computer-generated work is recognised as its author.

Now, the question is, if a copyrighted data set is used to train an AI, which may be used to create deep fakes, of course, without the consent of the lawful copyright owner, it certainly infringes his copyright and the output data generated by using such copyrighted work, even deep fakes, cannot be said to be the original work of the AI and its claim for copyright protection would fail.

The Indian Copyright Office grants copyright protection to derived works by acknowledging the original work. This could serve as a precedent to safeguard AI generated work from claims of copyright infringement by placing them in the category of ‘derivative works’. Such a practice of the Indian legal system receives legal force from the Berne Convention of 1886, which in its Article 2(3) states that derivative works are those creative works that are based on or derived from one or more existing works.

Deep fakes and copyright laws in India

While on the one hand it is true that there is no specific law to deal with deep fakes in India, on the other hand it is also true that copyright law is not a solution to the critical problem of deep fakes.

Section 79 of the Information Technology Act, 2000, provides safe harbour protection to social media intermediaries by not making them liable for third-party contents. However, under Proviso 3(b), they are imposed with a liability to remove or disable access to the infringing content after being informed by the government, its agency or any individual, or else they would lose the protection.

In the US, the removal of copyrighted content is mandated only after undergoing the four-factor test, which validates the doctrine of fair use outlined in Section 107 of the Digital Millennium Copyright Act, 1998 (DMCA). Fair use is a legal principle in the US that allows the use of copyrighted content without a licence in the light of the following factors:

Purpose and character of the use.
Nature of the copyrighted work.
Amount and substantiality of the portion take.
Effect of the use upon the potential market.

Under the doctrine of ‘fair use’ it is likely that deep fakes may qualify and can be preserved under the principle of transformative views.

In India, the corresponding principle of ‘fair use’ of US law is the doctrine of fair dealing under Section 52 of the Copyright Act, 1957. This section laid down an exhaustive list of the acts that are not deemed to be infringing and the deep fake contents don’t fall into this list. This may be convenient in tackling deepfake technology created with malicious intent but it is still unable to protect the use of deepfake technology for authentic purposes, as the term ‘review’ under Section 52(1) (a) (ii) of the ICA makes it flexible for the courts to adopt the concept of transformative use and give protection to those works that seem beneficial to society at large.

Under Section 57 of the ICA, authors are provided with special moral rights to claim authorship of their work and the right to claim damages in respect of any distortion, mutilation, modification or any other unauthorised act in relation to the said work.

The authors, Sec. 14 of the Copyright Act, 1957, of a copyrighted work enjoy the exclusive right to do or authorise others to do certain acts in relation to their literary, dramatic, or musical works, artistic works, cinematography film, and sound recording.

Section 55 and Section 63 of the ICA provide remedies for civil and criminal liability, respectively. On proving an infringement, the copyright owner is entitled to remedy by way of injunctions and orders for seizure and destruction of infringing articles.

Furthermore, Article 21 of the Indian Constitution guarantees the fundamental right to life and personal liberty, which includes the right to privacy and dignity. The author of a copyrighted work also has the right to control the use and dissemination of their creative works. This includes the right to decide who can access, copy, distribute, or modify their work.

In Puttaswamy vs. Union of India in 2017, the Supreme Court reaffirmed that “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21.

Conclusion

The copyright of deepfakes can be a complex issue, as deepfakes often involve the use of copyrighted material from various sources. The threat the world faces from deep fakes is due more to the inherent nature of the technology, which is dynamic, ever-changing, and often outpacing the capacity of legislation to anticipate its implications than to the limitations of copyright laws and the lack of uniformity in laws around the world.

Throughout history, the law has perpetually found itself in a position of trailing behind the rapid advancements of technology. As society evolves and innovations emerge, legal frameworks struggle to keep pace, often lagging behind the complexities and nuances of modern technological developments.

India is also not untouched by the ongoing turmoil in the legal system around the world regarding deep fakes. It may seem that if the policy makers take one step forward in this regard, the next moment they have to take two steps back. Though the legal scenario is not clear, they have buckled up to reach a concrete solution.

References

Miss Mohini Jain vs. State of Karnataka and Ors. (1992)

By

Rachit Garg

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May 5, 2024

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This article has been written by Dhriti Thingalaya. Here, the author attempts to present noteworthy changes that took place after the remarkable judicial decision that changed the entire discourse of the educational system in India. This article gives an overview of how an inclusive educational system was established with the help of this landmark judgement, which aided in the insertion of an important Act that ultimately resulted in the recognition of the right to education as a fundamental right.

Table of Contents

Introduction

In the early 1990s, India underwent a notable expansion in the branch of education by establishing private schools, and colleges, particularly those offering professional courses in the fields of medicine, law, engineering, etc. The availability of specialised learning opportunities brought both advantages and challenges. On one hand, it offered avenues for focused learning in specific fields but on the other hand, the high fees they charged posed a significant challenge. Enrollment in these specialised courses became difficult, particularly for those individuals with limited financial resources. This situation prevented many from pursuing private educational institutions.

In order to address this pressing issue of financial accessibility and to promote inclusivity in education for all sections of society, the Indian government introduced the reservation system known as “government seats.” This innovative initiative aimed to reserve a portion of seats for those students belonging to a specific strata of society who have been historically discriminated against on various grounds, taking a positive step towards upliftment and inclusive education for children hailing from those communities.

The concept of “government seat” mainly deals with allocating a certain percentage of available seats in private educational institutions to students from socially disadvantaged groups. This aims to address financial barriers that otherwise would have prevented students belonging from marginalised communities from accessing such professional courses in such esteemed private institutions. This approach aligns with constitutional principles of equality and social justice, emphasising the importance of ensuring that all segments of society have fair access to educational opportunities.

While this initiative was introduced to contribute to increasing access to higher education for historically marginalised communities, it also led to the discussion of an issue of accessibility to education due to increasing capitation fees in private educational institutes. The focus was placed on this issue in the case of Mohini Jain v. the State of Karnataka (1992). This case highlighted the importance of education, which should be made accessible to every citizen without making it a luxury that is reserved for a privileged few. The Supreme Court’s deliberations in the Mohini Jain case went beyond examining the legality of capitation fees; they also looked into the constitutional obligation of educational institutions and the state to ensure equal access to education for all citizens. The court acknowledged that the high fees could pose a significant financial obstacle, especially for economically disadvantaged individuals, limiting their ability to exercise their right to education.

Details of Miss Mohini Jain vs. State of Karnataka and Ors. (1992)

Case name

Miss Mohini Jain vs. State of Karnataka and Ors.

Case no.

456 of 1991

Equivalent Citations

1992, AIR 1858, 1992 SCR (3) 658

Laws and Statutes involved

Court

Supreme Court

Bench

Kuldip Singh (J), Sahai, R.M (J)

Petitioners

Miss Mohini Jain

Respondents

State of Karnataka

Judgement Date

30th July, 1992

Facts of Miss Mohini Jain vs. State of Karnataka and Ors. (1992)

In 1983, the government of Karnataka enacted legislation that permitted private education institutions to charge a capitation fee for admissions to professional courses. The capitation fee merely means the additional charge that was levied beyond the standard tuition fee and operated on the model of demand and supply dynamics. More importantly, the capitation fee was determined based on the level of demand for a particular course; the higher the demand for a course, the greater the capitation fee. It is important to note here that while this approach potentially addressed financial considerations for educational institutions, it also brought about concerns about the affordability and accessibility of education, particularly for students hailing from economically backward sections of society.

In the subsequent year, the Karnataka legislature came up with a bill that is referred to as Karnataka Education Act (Prohibition of Capitation Fee). This bill was passed with an intention of abolishing the practice of accepting capitation fees, over and above the regular tuition fees for students during the time of admission.

On June 5, 1989, the Karnataka legislature released a notification, which was also known as an impugned or challenging notification under Section 5(1). The notification established a cap on the maximum tuition fees that private medical colleges could charge their students in the state. According to the notification, the students were categorised into different sections, thereby creating a three tier fee structure depending on their merit as well as whether they belonged to the respective state or not. Under this notification, the private medical colleges located within the states were allowed to levy higher admission fees for those students who were not admitted through government seats than those who were. Specifically, students admitted to government seats were obligated to pay Rs. 2,000 per year in fees. Karnataka students who did not secure government seats incurred fees of up to Rs. 25,000 per year, while students from outside Karnataka were supposed to pay Rs. 60,000.

The petitioner, Miss Mohini Jain, a resident of Meerut, had applied for the M.B.B.S. course in a private medical college named Shri Siddharta, Aglakote, Tumkur, Karnataka. She was intimated via post that her admission to the medical college would commence in the months of February/March of 1991. The college management also asked the petitioners to pay an amount of Rs. 60000/- as her tuition fees for her first year and was informed to provide a bank guarantee in respect to the remaining fees for the remaining years of the M.B.B.S. course. On hearing this, the father immediately informed the management officials that the amount to be paid was beyond his reach and that he wouldn’t be able to pay such excessively high money. Due to this, the college management denied Miss Mohini’s admission to the medical course.

The college management was also accused of demanding an additional amount of 4,50000, but they denied this allegation as claimed by the petitioner. Subsequently, the petitioner filed a writ petition under Article 32(1) of the Constitution of India, challenging the notification issued by the government of Karnataka.

This case marked a remarkable moment in post-independent India. Because it was the first time, the Supreme Court delved into the details of the right to education for Indian citizens and the state’s responsibility to uphold this fundamental right.

Issues raised

Whether the right to education is considered a fundamental right under the Constitution of India?
Whether charging a capitation fee comply with the principle outlined under Article 14?
Whether the government’s notification allows for the collection of capitation fees under the pretence of regulation?

Contentions by the parties

Petitioners

The petitioner, Miss Mohini Jain, raised several contentions under the pretext of the constitutional validity of the notification released. The following are the major contentions raised by the petitioner.

Infringement of fundamental right of education:

The fundamental right to education, protected under Article 21 of the Constitution of India, is crucial for citizens to live a dignified life. The petitioner further contended that it is an important right for the holistic growth of an individual’s personality and for the development of their thoughts and actions. However, the policy of demanding capitation fees creates financial barriers, preventing those who are unable to afford such a heavy cost from attaining the most primary aspect of a person’s life, thereby violating their fundamental right to seek education.

Arbitrary and unjustifiable imposition of capitation fees

The policy of collecting a capitation fee in addition to the tuition fee is excessively high, and there seems to be no reasonable nexus or any link between the fees charged by these private universities and the quality of education provided by them; hence, this policy is arbitrary and unjustifiable in nature.This infringes on the fundamental right to equality as guaranteed by Article 14 of the Constitution.

The capitation fee is a discriminatory policy

The petitioner highlights the discriminatory nature of the policy of charging capitation fees. It is primarily targeted at those sections of society who are financially weak to pay such exorbitant money. Discrimination is prohibited under the Constitution, which violates the principle of equality that is prescribed under Article14.

Concept of Capitation fee is against the Directive Principle of State Policy

The petitioner points out that the unreasonable demand for capitation fee policy goes against the principle of the Directive Principle of State Policy. The petitioner contends that the capitation fee policy contradicts the Directive Principle of State Policy outlined in Articles 38 and Article 39 of the Constitution. These principles underscores the state’s obligation to promote the welfare of citizens and guarantee equal opportunities for all, which the capitation fee policy fails to uphold. The petitioner highlights the state’s responsibility to promote individual well-being and ensure equal access to opportunities. Additionally, the petitioner contends that treating education as a commodity rather than a public asset contradicts public policy principles, deviating from the broader public interest. Overall, the petitioner’s case revolves around the capitation fee policy’s unconstitutional, arbitrary, and discriminatory nature, along with its conflict with public policy.

Respondents

The following are the major contentions raised by the respondents.

Maintenance of quality education

The respondents initial arguments focus on the merit based admission system in medical colleges, stating that it helps uphold institutional standards within the medical profession. They also contend that providing reduced admission fees to deserving and meritorious students promotes broader access to education. They believe that merit based admission improves the academic environment and encourages healthy competition among students, which ultimately benefits the overall education system.

Impact of reservation policy for women

The State of Karnataka argues against reserving seats for women, expressing concerns about potential impacts on the quality and standards of medical education. They suggest that such reservations could lead to variations in merit levels between male and female candidates. Additionally, they argue that such reservation may be discriminatory against meritorious male candidates, going against constitutional principles of equality and non-discrimination in the Constitution. Additionally, the State further asserts that this policy contradicts the Indian Medical Council Act, 1956, which does not prescribe any reservation for women. Moreover, Karnataka further argues that the reservation for women may not serve the larger societal interest, potentially leading to a shortage of doctors and dentists, adversely impacting healthcare services.

Accurate classification among students

The respondents, the State of Karnataka and others argued that the system of providing admission on the basis of classification of students was necessary, to provide benefits to meritorious students under government seats and also to maintain the quality of education by admitting rank holders in private educational institutes so that it raises their standard in the area of the medical profession. Thus, according to them, such classification among students is indeed necessary and beneficial for covering the costs of medical education for the students belonging to government seats who are given the exception to pay nominal fees for their entire medical education.

Reasonableness of tuition fee

According to the Karnataka Private Medical Colleges Association, it’s highlighted that neither the State of Karnataka nor the Federal Government provide financial support to private medical colleges in the state. They argue that the cost of an MBBS program in these private institutions, spanning five years, is approximately five lakhs per student. With only 40% of seats covered by the “Government Quota” and a minimal annual fee of Rs. 2,000, students admitted under the management quota bear the financial burden. The association asserts that the tuition fee is not exorbitant and that the current structure does not yield significant profits for private medical colleges in Karnataka.

Judgement in Miss Mohini Jain vs. State of Karnataka and Ors. (1992)

The Hon’ble Supreme Court, guided by fundamental principles, rendered its verdict in the following manner.

The imposition of capitation fees in an educational institute is a breach of one’s fundamental right to life and personal liberty guaranteed under Article 21, as the right to life encompasses all the basic principles that are necessary to live a dignified life. The right to education being one of them is an essential right that helps in the complete transformation of a human being from childhood to the age of adulthood. The Court emphasised that a human being’s right to live a life with dignity needs to be protected under several circumstances. This can only be assured when individuals have the right to access education, and it is the duty of the state to fulfil its obligation towards its citizens by enabling this right for every other person belonging to different strata of society.

At the time of independence, almost 1/3rd of the population was illiterate, as they didn’t have sufficient means to access education and thus a surge of illiteracy was seen among the public at large. Hence, the framers of the Constitution decided to incorporate Articles 41 and 45 in Chapter IV of the Constitution. Article 41 states that the State shall, within the limits of its economic capacity and development, make effective provisions for securing the right to work, education and public assistance in cases of unemployment, old age, sickness and disablement, and Article 45 directs the state to provide free and compulsory education for children until they reach the age of 14 years and also provide early childhood care for children until they complete the age of six years.

It was further held that the capitation fees infringe upon Article 14 of the Constitution, which ensures equality before the law. By imposing such fees, economically disadvantaged individuals are unfairly restricted from accessing educational opportunities, hindering their access to equal educational opportunities due to their financial constraints. The court noted that these fees predominantly served as profit-oriented requirements imposed by commercial educational institutions, bearing minimal relevance to the quality of education provided.

The court directed the government to regulate fees charged by such private educational institutes, emphasising the prohibition of capitation fees. The court highlighted the government’s responsibility in protecting the rights of individuals, accessible to all and not limited to the affluent. Additionally, the Hon’ble Court also guided the state to act in line with the Directive Principles of State Policy. The Court emphasised the interconnectedness of fundamental rights under Part III and Directive Principles of State Policy in the Constitution, stressing the need to interpret them in tandem.

Another Fundamental Right that is being violated if not given access to education is freedom of speech and expression under Article 19 of the Constitution. This Article cannot be enjoyed in its entirety if the citizens are not acquainted with the recent updates that are going on around the world and if the citizens are stripped of their right to access education freely without any restriction. Illiterate people are bound to get exploited. The vision of all these provisions is difficult to achieve without education. The Directive principles are integral to the governance of the country, as they cannot be viewed independently from the fundamental rights. They complement each other and should be interpreted or read along with fundamental rights.

All the provisions referred to above, which are guaranteed under the Constitution, were invoked by the court, emphasising the commitment outlined in the preamble to ensure ’justice, social, economic and political’. Additionally, the Preamble underscored the importance of ‘Equality of status and opportunity’. The Court asserted that aspirations embedded in the Preamble, crucial for the nation, could only materialize through education, highlighting its pivotal role in translating these objectives from mere ideals on paper to tangible realities.

Rationale behind the judgement

The rationale behind the judgement was purely based on the rule of law and upholding the fundamental principles necessary for living a dignified life.

Prior to the enactment of the Constitution (Eighty-sixth Amendment) Act of 2002, and even before the Mohini Jain v. State of Karnataka case, it was not clear whether the right to education really comes under fundamental rights enshrined in the Constitution. There were several precedents that were raised in this particular case that help us understand the multiple views that were opined in different cases about the right to education.

The landmark case of Bandhua Mukti Morcha v. Union of India (1983) set a significant precedent, emphasising that the right to live with human dignity, as enshrined in Article 21, is rooted in the Directive Principles of State Policy. Specifically, it highlighted the importance of principles related to workers, children, health and human working conditions.

The court asserted that these requirements are fundamental requisites that are indispensable for individuals to maintain a life of dignity and neither the central nor the state governments possess the authority to deprive people of these essential needs.

Additionally, Article 14 was discussed, highlighting its opposition to the arbitrariness in equality under the law. Notable cases include E.P. Royappa v. State of Tamil Nadu (1973), Maneka Gandhi v. Union of India (1978), Ramana Dayaram Shetty v. The International Airport Authority of India (1979), etc. All these cases were cited to demonstrate that Article 14 protects against arbitrary actions by authorities.

Before this decision, many courts held varying opinions on the issue, and there wasn’t any specific law limiting private educational institutions from charging capitation fees. Because of this, many institutions were charging high capitation fees, making it hard for financially struggling individuals to access education. The ruling played a significant role in making the right to education a fundamental right and curbing the unchecked imposition of capitation fees by private institutions.

Analysis of Miss Mohini Jain vs. State of Karnataka and Ors. (1992)

The landmark judgement in the case of Mohini Jain v. State of Karnataka addresses the issue of capitation fees in private colleges and their infringement on the right to education for students who cannot afford it.

The fundamental rights enshrined in Part III of the Constitution of India, including the right to freedom of speech and expression under Article 19 and the right to personal liberty and dignity, are integral to an individual’s life. A crucial aspect that complements these fundamental rights is the “right to education,” deemed essential in ensuring the meaningful exercise of the rights outlined in Part III. The Constitution also mandates states to establish educational institutions for the benefit of all citizens. These institutes must be created beyond the categorisation of economically weak or affluent classes.

The surge in demand for medical education has resulted in the development of many pirate medical institutes. However, the prevalent issue of capitation fees charged by these institutes has become a common practice in nearly all private institutes, effectively transforming education into a commodity.This concept of profit earning through education is deemed contradictory to the constitutional scheme and inconsistent with Indian culture and heritage.

Professional organisations like the Indian Medical Association have unanimously condemned the changing of capitation fees, emphasising the adverse effects on medical education standards and the resulting migration of professionals to other professions. The right to education is underscored as a constitutional entitlement, and when the State grants recognition to private educational institutions, it essentially deputises them to fulfil its constitutional obligation. Charging capitation fees for admission to these institutions is seen as a direct infringement on a citizen’s right to education under the Constitution.

In Indian society, education has always been seen as a sacred obligation, a crucial duty, and not merely a profit making business. Building and running schools has been seen as a charitable act. Education in India is never seen as a commodity for sale, but charging capitation fees has been seen as contrary to the ethos. Considering the prevalence of poverty in India, it is a concerning situation for which efforts were taken to end poverty, ensuring that everyone has access to the right to life. Allowing schools to charge capitation fees, especially government recognised ones, is seen as unfair and breaks the rule of treating everyone equally under Article 14 of the Constitution, as it places education beyond the reach of economically backward classes. Furthermore, this landmark case of Mohini Jain v. State of Karnataka has further strengthened the equality clause, emphasising the importance of ensuring equal access to education for all citizens.

Effects of the judgement in Miss Mohini Jain vs. State of Karnataka and Ors. (1992)

The judgement had a tremendous impact as it was challenged in the court of law in the case of Unni Krishnan v. State of Andhra Pradesh (1992), which further strengthened the claim of the right to education as a fundamental right.

Unnikrishnan v. State of Andhra Pradesh (1992)

In the case of Unni Krishna v. State of Andhra Pradesh (1992), the constitutional issue that was raised before the Hon’ble Court was with regards to whether the right to life, guaranteed under the fundamental rights of the Constitution, extends to the right to education at a higher level. Many petitions were filed claiming to extend this right further in order to provide access to education to a larger section of the population. The main point of contention revolved around, just as the right to education is enabled by primary education, similarly, the right to education should also be made available for higher education. However, this claim was rejected by the Hon’ble Supreme Court.

The case was in connection with Mohini Jain v. State of Karnataka, where the Hon’ble Supreme Court passed a decision that people have a constitutional right to education. The issue relating to the right to education referred to under Article 45 of the Constitution of India, which is in tandem with Article 21 enshrined under the fundamental rights, was not explicitly expressed or addressed in the aforementioned case of Mohini Jain v. State of Karnataka.

Statement of facts

The Supreme Court of India addressed the issue through writ petitions and civil appeals, focusing on how Article 21 of the Constitution of India, which deals with the right to life and personal liberty, applies to professional education. The main point of contention was whether professional education falls within the ambit of the right to life and personal liberty. The petitioner argued on the grounds that the ‘Right to Education’ applies to or mainly refers to primary education. However, judges disagreed with this interpretation, leading to the dismissal of the case. The case referred to the precedent set by Miss Mohini Jain v. State of Karnataka The case drew on the precedent set by Mohini Jain v. the State of Karnataka, emphasising the citizens’ fundamental right to education but not explicitly addressing whether the ‘Right to Primary Education’ in Article 45 is a fundamental right under Article 21. The case originated from petitions filed by various private educational institutions challenging state laws enacted to regulate fee charges in Tamil Nadu, Karnataka, Andhra Pradesh, and Maharashtra. These institutions opposed the matter and brought the matter to the court, questioning the precedent set in Mohini Jain v. State of Karnataka.

Issues raised

Whether the fundamental right to education applies to medical engineering or other professional courses?
Whether the establishment of a private educational institute falls within the scope of Article 19(1)(g) of the Constitution?
Is there a fundamental right to education guaranteed to all Indian citizens under the Indian Constitution?
Does the recognition or affiliation of education institutions make it an instrumentality?

Arguments advanced

Contentions of Petitioners

The petitioners argued that, as per Article 19(1)(g) of the Constitution, every citizen possesses the fundamental right to establish educational institutions, including those driven by a profit motive. They contended that the flaw lies in excessive state control rather than in private individuals or bodies establishing educational institutions. Emphasising the law of demand and supply, the petitioners asserted that allowing free play to these market forces is crucial. They further claimed the right to establish self-financing institutions, asserting that individuals have the right to collect funds and establish educational institutions for the benefit of society. The petitioners challenged the classification of amounts collected beyond fees as capitation fees, arguing that the high costs of educating medical and engineering students make private institutions reliant on alternative funding, unlike government-funded institutions.

Article 19(1)(g) was highlighted to affirm the right of petitioners to establish private education, whether self-financing or cost-based. The petitioners contended that the right could only be restricted by law, as stipulated in Article 19(6).

Contention of Respondent

The respondents argued that education in Indian civilization has always been viewed as a moral duty towards society rather than a business for making profits. It further contended that when the state allows private institutions to carry out their function of providing education, it is of utmost importance to ensure that economic power does not give undue advantage to such institutions to administer arbitrarily. The right to establish an institution, according to the respondent, does not inherently include the right to recognition or affiliation. Therefore, the state can impose conditions for recognition to uphold fairness, merit, and educational standards in the societal interest. Private institutions, seen as performing a vital public function, were argued to be subject to “state action,” restricting them from charging fees beyond the bare running costs.

Judgement

The court asserted that the citizens fundamental right to education has been protected under Article 21 of the Indian Constitution but also put emphasis that this right is not absolute. Considering Articles 45, 46 and 41, the court emphasised that the right to education is subject to economic capacity and the state’s development. The judgement highlighted the interconnectedness of the fundamental rights and directive principles.

Aided schools and colleges were strictly directed to follow government rules and regulations, especially when it comes to admitting students based on merit. Un-aided institutions, although not required to follow the pattern established by the government, have a limit that is prescribed for them on how much they could charge. Aided institutions were directed to follow government regulations, especially regarding admissions based on merit. Unaided institutions, while not compelled to match governmental fees, were subject to a ceiling. The court affirmed that education, guided by Article 19(1)(g), is not treated as commerce but as a religious duty and charitable activity. The right to establish an educational institution does not automatically include the right to recognition or affiliation, as per the precedent in the Ahmedabad St. Xaviers College v. the state of Gujarat. (1974) The state’s role in granting recognition or affiliation involves ensuring standard education and fairness in admissions. Section 3-A of the Andhra Pradesh Educational Institutions (Regulation of Admission and Prohibition of Capitation Fee) Act, 1983, was declared void for violating Article 14. Civil appeals by Andhra Pradesh students were allowed with conditions for compliance by the educational institutions.

86th Constitutional Amendment

The origin of the 86th Constitutional Amendment Act of 2002 can be traced back to the foundational principles of the Indian Constitution. Article 45 mandated the state to provide free and compulsory education to all children up to the age of fourteen within a decade of the Constitution’s commencement. However, this directive faced many challenges due to financial and administrative obstacles. Over time, there was a growing realisation of the necessity of elevating the right to education to the status of a fundamental right. This recognition emerged from the understanding that education is not only a societal benefit but also a fundamental requirement for individual empowerment, societal advancement, and national progress. The movement advocating for social justice and equality propelled the demand for constitutional acknowledgement of the right to education.

Significant changes brought about by this Act

Fundamental rights

Firstly, Article 21A was introduced below Article 21, making it a fundamental right. It mandated the state to provide free and compulsory education for all children aged between 6 and 14 years old. This change reflects an emphasis on nurturing children’s development from an early age, instead of being coerced into labour or falling prey to activities such as begging, child trafficking, etc.

Directive Principles

Secondly, Article 45 went through a major change, shifting the focus from providing free and compulsory education for children up to 14 years of age. This change reflects an emphasis on nurturing children’s development from an early age.

Fundamental Duties

Thirdly, an amendment to Article 51A introduced a new clause (k), placing an emphasis on parents or guardians providing opportunities for education to their children between the ages of six and fourteen. This addition underscores the crucial role of parental involvement in facilitating children’s access to education.

Additional Provisions

Children from disadvantaged groups: The definition of a “child belonging to a disadvantaged group.” The scope of this definition was widened, which further included children with disabilities. This expansion was facilitated through the Right of Children to Free and Compulsory Education (Ammendment) Bill, 2010, promoting inclusivity in education.
Teacher regulation: The Act mandates that teachers should completely focus on teaching duties; no non- teaching duties must be assigned to the teachers; and recommends continuous professional development for untrained teachers within years.
School infrastructure standards: Minimum infrastructure requirements are outlined for schools, and non-compliant schools are given a grace period of three years to meet these standards or face derecognition
Reservation: A 25% reservation for disadvantaged sections of society is mandated, along with parent representation comprising 75% of school management committees, including 50% women members.
Rules for examinations: The Act abolishes exams, including board examinations for classes V and VIII, promoting a holistic approach.
Teacher-Student Ratio: Specific teacher-student ratios are prescribed for different class levels, ensuring adequate attention and supporting student’s learning needs.
Corporal punishment: This sort of punishment is explicitly prohibited under the Act, promoting a safe, nurturing environment.
Private teaching: Teachers are prohibited from engaging in private teaching activities to prevent conflicts of interest.
Monitoring and advisory bodies: National and State Commissions for Protection of Child Rights are tasked with monitoring the Act’s implementation, supported by a National Advisory Council advising the central government on its execution.

Overall, the 86th Amendment Act represents a comprehensive effort to enhance access to quality education, protect children’s rights, and foster an inclusive and equitable educational ecosystem in India.

Right to Education Act

The Right to Free and Compulsory Education Act, passed in 2009, is a crucial law in India’s educational system. It is also popularly known as the Right to Education Act (RTE). It was enacted on August 4, 2009, under Article 21A of the Indian Constitution. The Act underscores the significance of free and compulsory education for children aged 6-14. This makes India one of many countries that guarantees education as a fundamental right for all kids. The Act not only mandates fundamental rights but also sets minimum standards for elementary schools and requires private schools to reserve 25% of their seats for children from economically weaker sections. The state government reimburses the expenses as part of a public private partnership initiative. Additionally, the Act also stops unrecognised schools from operating and prohibits practices like asking for donations or extra fees during admission, making sure that all kids have fair and equitable access to education.

Moreover, the Act prohibits schools from holding back or expelling any child until they finish elementary education. It also provides special training programmes for kids who have dropped out of school, aiming to put dropouts on par with their peers. Through surveys, the Act identifies who needs education and sets up facilities to provide it. Putting the onus on the governments to ensure that the kids enrol, attend, and complete their schooling. As mentioned above, the Act extends the right to education to persons with disabilities up to the age of 18, emphasising inclusivity and accessibility in the educational landscape. It also addresses various other aspects, such as improving the school building, maintaining the student-teacher ratio, and enhancing faculty standards, thereby aiming for holistic development in the education sector.

The RTE Act, being a concurrent issue in the Indian Constitution, outlines specific responsibilities for the central, state, and local bodies for its implementation. Though states have faced financial challenges in providing quality education, the Act requires cooperation between the state and central government to support educational initiatives. Initial funding estimates were increased. Moreover, there have been discussions which have centred around extending the right to education up to Class X (age 16) and even to preschool age, reflecting continued efforts for broader access to education. To help with implementation, the Ministry of Human Resource Development established a National Advisory Council composed of eminent experts from different fields, ensuring diverse perspectives in policy formulation and execution. Despite several efforts and significant strides, challenges remain, as highlighted in reports indicating gaps in enrolment and teacher shortages, necessitating continuous efforts to fulfil the promise of universal education.

In conclusion, the RTE Act represents a transformative step towards realising the constitutional vision of providing quality education to all children in India. By emphasising inclusivity, equity, and accessibility, the Act lays the foundation for a more robust and equitable educational system, paving the way for a brighter future for generations to come.

Conclusion

The landmark case Mohini Jain v. State of Karnataka, along with subsequent legal developments, has significantly shaped the landscape of the education system in India.

It underscored the fundamental right to education as enshrined in the Constitution and highlighted the state’s obligation to ensure access to education for all citizens, irrespective of economic status. The judgement played a pivotal role in curbing the imposition of capitation fees by private educational institutions, emphasising the importance of education as a social good rather than a commodity. Furthermore, it affirmed the interconnectedness of the fundamental rights and directive principles of state policy, emphasising their collective role in promoting social justice and equality. Through its comprehensive analysis and far-reaching implications, the case represents the judiciary’s commitment to upholding constitutional principles and advancing the cause of inclusive education in India.

Frequently Asked Questions (FAQs)

Is the right to education a fundamental right?

Right to education has been inserted into Part III of the Constitution of India, which deals with fundamental rights. It was added with the insertion of the 86th Amendment Act, 2002, which enabled free and compulsory education for all children in the age group of six to fourteen years of age.

What does the 86th Constitutional Amendment imply?

The 86th Constitutional Amendment Act, passed in 2002, made education a fundamental right for children aged 6 to 14 by inserting Article 21A into the Indian Constitution.

Which committee was responsible for the insertion of Article 21A?

The committee responsible for the insertion of Article 21A was the “Constitution Review Committee,” headed by Dr. Dinesh Goswami.

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Om Prakash v. State of Punjab (1961)

By

Rachit Garg

-

May 5, 2024

0

This article is written by Janani Parvathy J. The aim of this article is to exhaustively analyse the landmark case of Om Prakash v. State of Punjab (1961). It provides an explanation of the facts, issues, and contentions raised by the parties, a discussion of the relevant laws and provisions and an in-depth analysis of the judgement.

Table of Contents

Introduction

Om Prakash v. State of Punjab (1961) is a landmark case in criminal law. This case explains and analyses several aspects of Section 307, Section 511, and Section 308 of the Indian Penal Code, 1860 (hereinafter mentioned as “IPC”). It is one of the oldest cases, which properly specified the elements of the offence of attempt to murder as envisaged under Section 307 of IPC. It not only provides insights into criminal law provisions but also sheds light on the harsh reality of the practice of domestic cruelty.

A well-settled principle dictates that Section 307, i.e., attempt to murder, requires both intention and an act to be performed. However, whether this act needs to be the last act performed before the offence, is the question this landmark judgement addresses. Generally, it is believed that the husbands must provide their wives with basic necessities like food, shelter, and clothing if they are dependent. The question of whether the husband must spoon-feed the wife was also addressed in this case.

Moreover, this case is relevant for its distinction between Section 511 and 307 IPC. Additionally, it historically established that the commencement of an offence, under Section 307 was punishable. Notwithstanding these, the Om Prakash case also received the societal spotlight because it involved a crime within the traditional family structure.

Details of Om Prakash v. State of Punjab (1961)

Case name

Om Prakash v. The State of Punjab

Case No.

Criminal Appeal No. – 177 of 1959

Equivalent Citation

AIR 1961 SC 1782, (1961) 31 AWR 660, 1961 INSC 179, [1962] 2 SCR 254

Court

Supreme Court of India

Parties to the case

Appellant

Om Prakash

Respondent

State of Punjab

Judgement Date

April 24, 1961

Facts of Om Prakash v. State of Punjab (1961)

Bimla Devi, the victim, and Om Prakash, the appellant in the present case, got married in October 1951. In 1953, when relations between Mrs Devi and her husband became unpleasant, Bimla Devi left her matrimonial house to go and stay with her brother. She stayed in her brother’s house only for one year. After assurance from the appellant’s maternal uncle that she would not be ill-treated in the future, she returned back to her matrimonial home to stay with the appellant.
Unfortunately, though they had promised not to ill-treat her, they did not abide by the same. She was ill-treated and allegedly malnourished due to which her health deteriorated. In 1956, she was confined to the home and forcefully starved. There were days when she received only minimal sustenance. Many times, she was given only a morsel or two to eat akin to alms given to beggars. Additionally, she was deliberately denied food for many days altogether and provided gram husk with water every five to six days only.
In April 1956, Bimla Devi tried to escape but was caught and brought back by Romesh Chander and Suresh Chander, the appellant’s brothers, and was later severely beaten by them. However, on June 5, 1956, when the room of the victim was accidentally opened and the husband and mother-in-law were away from the house, the victim escaped and reached the City Hospital, Ludhiana. At the city hospital, the victim met Doctor, Mrs. Kumar, to whom she explained all her sufferings.
Subsequently, the appellant and his mother reached the hospital and tried to bring back the victim, but their efforts failed because the doctor was determined not to let her go. Additionally, several social workers became involved in this matter and informed the victim’s brother, Mr. Madan Mohan, about his sister’s condition.
Mr. Madan Mohan promptly arrived in Ludhiana, collected all necessary facts, and then wrote to the police station, asking to register a case and requesting for her statement to be recorded immediately. He wrote that his sister, Bimla Devi was starved, wrongfully confined and beaten for a long time by her husband, brother-in-law, sister-in-law and mother-in-law and that, at present, she was in a critical condition.
On the same day, Dr. Dalbir Singh Dillon sent a letter to the police reiterating the critical condition of the victim. He emphasised that she was ill and could collapse at any moment. Magistrate Shri Sehgal took the statement of the victim and stated that, since the blood transfusion was happening on the right hand, the left thumb impression had to be taken as a signature.

Prior proceedings

Additional Sessions Judge

The additional sessions judge convicted the accused, the appellant in the present case, under Section 307 of the IPC and acquitted under Section 342 i.e., wrongful confinement, granting him the benefit of the doubt, despite concluding that Bimla Devi’s movements were restricted to a certain extent.

High Court of Punjab

Later, an appeal to the High Court of Punjab was filed, by Bimla Devi and her representatives. The High Court judge observed, from photos of Mrs. Bimla Devi that she was in a state of starvation. She was completely undernourished and with a skeletal appearance, hollow cheeks, and projecting bones with little flesh, as observed by the judge. The judge concluded that the veracity of the victim’s statements could not be doubted and that any omissions or exaggerations regarding the same did not matter.
The judge further noted that the contentions made by the counsel of the accused could not be proven and were untrue. The counsel for the accused contended that Mrs. Bimla Devi had tuberculosis, but the same was unknown to the accused until Dr. Gulati told him that the emaciation of the accused was due to the same.
The judge held that he found the story of how Bimla Devi was mistreated and starved to slowly kill her convincing despite the novelty of the method. The court also observed that the conduct of the mother-in-law and husband, insisting on taking the victim home while she was in such a condition, was significant. The court further observed that the real objective behind insisting on taking back the victim home could be nothing other than to slowly kill her.
After considering all the evidence presented, the court concluded that the accused was guilty under Section 307, i.e., attempt to murder.

An issue raised in the case of Om Prakash v. State of Punjab (1961)

The question of whether an offence under Section 307 of the IPC could be proven in the present case is raised before the Supreme Court. To answer the same, the Court, after hearing the arguments from both sides of the parties, examined various intricacies of Section 307 and gave a clear understanding of the essential ingredients for the offence of attempt to murder.

Arguments of the parties

The following are the arguments raised by the appellant.

The appellant was represented by Mr. Jai Gopal Sethi. The counsel for the appellant contended that the legal obligation to look after an individual’s needs and ensure proper feeding arises only when that person is unable to care for themselves or is in a helpless condition. The counsel argued that such persons who are unable to look after themselves typically include lunatics, infants, and old people and that the victim was not one among them.
The counsel also argued that a husband’s duty does not extend to physically feeding his wife; rather, it is limited to providing adequate funds to ensure the availability of food for the wife.
Furthermore, the appellants contended that the essentials under Section 511 and Section 307 of the IPC are different. Under Section 511, which pertains to punishment for attempting to commit an offence, the act need not be the last one, it could also be the first act. On the other hand, for an act to be punishable under Section 307, which deals with the attempt to murder, it must be the final act and should have the potential to cause death. In the present case, the appellants contended that the act of starving the victim could not have been the last act leading to murder, as required under Section 307. They argued that, for an explicit attempt to commit murder, the starvation period would have needed to be longer.
The counsel for appellants also put forth several precedents of various High courts to substantiate their arguments. The first case mentioned was Queen Empress v. Nidha (1892) where Nidha upon noticing Chowkidars approaching, pulled the trigger of the blunderbuss he was carrying while absconding. In this case, he was held liable by the Allahabad High Court under Sections 299 and 300 read with Section 511 and not under Section 307. The Hon’ble judge in this case relied on the Bombay case, Regina v. Francis Cassidy (1867) Bom. H.C. Reps. 4 (Crown Cases) to provide the judgement.
In Regina v. Francis Cassidy (1867), it was established that to constitute an offence of attempt to murder, the act performed must be capable of causing death in the natural and ordinary course of events. Justice Straight, in this case, noted that an intervening act cannot invalidate the criminal liability of the accused. The judge in the case further observed, that merely purchasing a matchstick does not constitute an attempt to start a fire, rather the necessary intent, along with the performance of an act to light the matchstick to start the fire, is required for the conviction under Section 307. Even an intervening factor like a puff of air cannot serve as a defence to escape liability. Justice Straight emphasised that despite intervening obstacles, the last act i.e., lighting of a matchstick must be performed, for the offence to be committed. In the present case of Om Prakash v. State of Punjab, the counsel pointed out that the last act was not performed.
Additionally, the counsel referred to Mi Pu v. Emperor where poisoning of food led to a conviction under Section 328 read with Section 511 of IPC.
The appellants also cited Jeetmal v. State (1949), where it was held that an act which, by itself and ordinarily, can cause death in the natural course of events shall be punishable under Section 307. In this case, the act performed by the accused, i.e., starving the victim, cannot be considered to cause death by itself.
Lastly, the counsel pleaded that the accused was innocent and if guilty, Section 511 of the IPC shall apply and not Section 307.

The law discussed in the case of Om Prakash v. State of Punjab (1961)

Om Prakash v. State of Punjab is a criminal law case that revolves around several aspects of the IPC. The legal provisions discussed in this case include:

Section 307

Section 307 of IPC defines the offence of ‘attempt to murder’ and prescribes punishment for the same. The ingredients of the offence of attempt to murder are as follows:

There was an attempt to cause death
The accused performed this act of attempt to murder
The act performed by the accused was done
- With the intention of causing death, or
- With an intention to cause bodily injury knowing that such an act could cause death in the ordinary course of the event. In other words, the accused performed an act which was explicitly dangerous that most probably could cause death or could cause bodily injury that was likely to cause death in normal circumstances and this fact is known to the accused while committing such an act.

For committing the offence of ‘attempt to murder’, the offender can be punished with imprisonment, either rigorous or simple, for a term of 10 years, along with a fine. If any injury is caused to the victim due to the act of the offender, then the offender can also be given life imprisonment.

In the present case, the court observed that the term “act” encompasses not only a particular, specific, instantaneous act but also denotes a series of acts. Therefore, the course of conduct adopted by the appellant in regular Bimla Devi comprised a series of acts, falling within the purview of Section 307 of the Code.

Section 308

Section 308 of the IPC defines the offence of ‘attempt to commit culpable homicide’ and prescribes the punishment. The ingredients of Section 308 are as follows:

Intention or knowledge: If an act is committed with the intention to cause death or with the knowledge that it could lead to culpable homicide not amounting to murder, Section 308 will be applicable.
Commission of an act: Along with the requisite intention, an act i.e., an attempt to perform the crime of culpable homicide not amounting to murder is necessary. Culpable homicide not amounting to murder and murder differ based on the element of intention.

Further, Section 308 of IPC provides a punishment of imprisonment of either description, for a period of up to three years, with a fine, or both. If any injury is caused to the victim due to the act of the offender, a punishment of up to seven years, or with a fine, or both can be awarded.

Section 511

Section 511 of the IPC specifies the punishment for attempting to commit offences punishable with life imprisonment or other imprisonment. Ingredients of this section are:

Intention: Mens rea is an essential element for most IPC offences. In an attempt to commit an offence, the intention to commit the act refers to the commission of an attempt to commit the act but with the inability to commit the actual act or was not successful in committing the same.
Attempt to commit an offence: This provision requires the attempt to commit an offence. The performance of an act along with intention is considered an offence under Section 511 of IPC. The actual commission of the offence cannot be punished under this section.
Act: The act attempted to be performed must be such that it is punishable with life imprisonment or other imprisonment as provided under the IPC or an act for which no punishment has been provided by the IPC.
Further, Section 511 IPC also specifies that if no other provision of the IPC has specified any punishment for this offence then, the offender could be punished for a term that extends to one-half of the term of life imprisonment, or half of the longest term of imprisonment that may be given for that offence. Additionally, a fine may or may not be imposed.

Judgment in Om Prakash v. State of Punjab (1961)

An appeal, by special leave, was brought before the Supreme Court, against the order of the Punjab High Court dismissing the appellant’s appeal against his conviction under Section 307 of the IPC. The Hon’ble Supreme Court upheld the High Court judgment. The court gave a verdict in favour of the respondents and convicted the accused under Section 307 i.e., attempt to murder. The court noted that all elements of Section 307 were fulfilled in this case and, while doing so, the court also analysed the cases cited by the appellants.

The rationale behind this judgment

Inability to look after herself

The Appellant contended that the accused had no duty to feed Bimla Devi. They argued that his duty was limited to providing funds for food, which he had done. The Supreme Court relied on the findings of the lower court, which explained how Bimla Devi was intentionally confined and starved to quickly meet her end, to highlight the role played by the appellant in this scheme. The court further concluded that these findings contradict the argument of the counsel that the appellant provided funds and food for his wife.

Section 511 and Section 307

The appellants had contended that Section 511 and not Section 307 would be applicable in this case. They argued that the act of making someone starve alone was not sufficient to cause death and, thus, Section 307 could not be invoked.
The court disagreed with this contention. The court noted that both Sections 307 and 308 were expressed in the same manner. So, if Section 307 was to be interpreted as requested by the appellant, then Section 308 should also be interpreted along the same lines. But, Section 307 covers all ‘attempt to murder’ cases, and Section 511 applies only to cases punishable with life imprisonment; the same cannot be applied to Section 308. Additionally, the court also observed that Section 511 would apply even in cases of culpable homicide not amounting to murder if there was no separate provision for ‘attempt to culpable homicide’.
The court relied on Abhayanand Mishra v. The State of Bihar (1961) where it was held that a person commits an offence under Section 307 IPC when he intends to commit the offence, makes preparations for the same, and performs an act towards the commission of the crime. In Abhyanand Mishra case, it was further held that such an act performed need not be the penultimate act for committing the crime, but it was enough if the act was committed during the course of committing the offence. The court, thus, observed that a person would be deemed to have committed an offence under Section 308 if they have an intention to commit the crime of culpable homicide not amounting to murder and, in pursuance of such intention, commits an act towards the commission of the offence, irrespective of whether it is the penultimate act or not. The Supreme Court in the present case found that the same would be applicable to Section 307 as well.
The court further observed that the phrase, ‘whoever attempts to commit an offence’ under Section 511 simply means someone who intends to perform an act with the necessary intent or knowledge to commit the act and that this could not be interpreted to specify that the act performed needs to be the penultimate act. The court noted that the same would be applied to Section 307 i.e., ‘whoever does an act with such intention and knowledge’ simply means that an act with requisite intention or knowledge needs to be performed. Further, the court also noted that the expression ‘by that act’ under Section 307 would not mean the last or penultimate act.
The court also discussed Section 33 of the IPC to highlight that ‘the act’ performed to commit an offence need not be an isolated act but could be a series of acts. Therefore, the court held that the regular act of deliberately starving the victim by the accused was a series of acts which could have resulted in murder. Thus, the court held that there was no bar on the applicability of Section 307.

Court observation on the cases cited by the appellant

Queen Empress v. Nidha (1892)

In this case, the accused was convicted under Sections 299 and 300 read with Section 511, and not under Section 307. The judge, in this case, relied on Justice Straight’s interpretation in the Bombay case of Regina v. Francis Casisy. Justice Straight noted that a person with evil intent must perform a last act towards the commission of the offence. Further, Justice Straight gave the example of firing a stack to explain this point. Justice Straight noted that no one by just trying to buy matchsticks from a shop could be held liable for attempting to burn the stack. But, if he with the intent to light the stack goes to the place and lights the match which is put off by the wind, Justice Straight observed that could cause an offence. The last act would have been putting the lighted matchstick on the stack, but this was put out by the wind.
Regarding this argument, the Hon’ble Supreme Court observed that illustration (d) of Section 307 contradicted the contented view. According to the illustration, when A, to murder Z, buys poison, mixes it with the food and keeps the food to himself, then he does not commit an offence. But, when A delivers it to Z, through his servant, then he shall be held liable under this section. The court observed that, according to Section 307 illustration (d), it was not necessary for A to directly serve the food to Z i.e., perform the last act towards the commission of the offence. It could be concluded from Section 307 illustration (d) that A’s last act need not be one that must cause death. According to the illustration, A could not have directly served the food to Z, and it could be inferred that A’s act by delivering the food to Z was equivalent to A directly serving it.
The court further noted that this view of Justice Straight was with reference to attempts to commit offences in general and not Section 307. The court also pointed out that the purpose behind Justice Straight’s statements was to ensure that nobody could benefit from an intervening act towards the commission of the offence and not to establish the importance of performing a last act.
Additionally, the court observed that Justice Straight himself had said earlier that, for attracting liability under Section 307, two things were required, that is, an intention or knowledge and the overt act.

Cases referred by the Supreme Court

The Supreme Court referred to and discussed some precedents of different courts while analysing this case. They are:

Emperor v. Vasudeo Balwant Gogte (1932)

In the case of Emperor v. Vasudeo Balwant Gogte (1932), the accused fired shots to injure another person, but due to an obstruction, the victim did not get injured. Despite this, the accused was still convicted under Section 307 by the Allahabad High Court. Justice Beaumont noted in this case, “I think that what section 307 really means is that the accused must do an act with such a guilty intention and knowledge and in such circumstances that but for some intervening fact the act would have amounted to murder in the normal course of events“.
The court, applying the same reasoning to the present case, observed that the intervening factor here was the escape of Bimla Devi, and her succeeding in reaching the hospital and securing treatment and, if not for that, the accused would have slowly murdered her.

Rex v. White (1910)

In this case, the son was accused of attempting to murder his mother by putting two drops of cyanide potassium in her wine glass. It was argued in this case that the act of putting poison was a completed act and did not possess the ability to kill unless it was supplemented with a few other acts, which may not happen. This argument was dismissed in Rex v. White (1910) and it was observed by the court of appeal that this was a case of murder by slow poisoning. To establish an ‘attempt to murder’ completion of even one of a series of acts to commit the intended crime was enough, even though this completed act needed to be coupled with other acts to actually be able to commit the offence.
The court in this case further observed that the beginning of the attempt, not the completion of the attempt to commit the offence, needed to be proven for attempting an offence. Therefore, the Supreme Court, relying on this case, noted that the beginning of an attempt to commit murder was completed by the accused by deliberately starving and beating the victim.
Thus, after dismissing the appellants’ arguments and discussing relevant cases, the court concluded that the accused was guilty under Section 307 of IPC and dismissed the appeal.

Mi Pu v. Emperor (1909)

In Mi Pu v. Emperor (1909) 10 Cri. L.J. 363, a person who put poison in the food was convicted under Section 328 read with Section 511 of IPC. In the present case, the court noted that this was because of a lack of proper evidence on the quantity and the consequences of the poison that was mixed and not because of the nature of the act. Therefore, the court noted that this case was irrelevant to the present case.

Jeetmal v. State (1949)

In this case, it was held that an act under Section 307 must be capable of causing death in the natural course of events. The appellants had argued that starvation could not ordinarily cause death. With reference to this, the Supreme Court observed that the rule established in Jeetmal v. State was upheld in the Cassidy case; however, it disapproved in the Nidha and Gogte case.

Analysis of Om Prakash v. State of Punjab (1961)

Om Prakash v. State of Punjab is a landmark case on Section 307 of IPC. Here, the appellant was held liable for attempting to murder his wife by starving her to death. This case, in detail, debates the ability of this novel method to result in murder. Sections 307, 308, and 511 were analysed by the court. Some aspects of the judgement are as follows:

Elements of Section 307: Om Prakash v. State of Punjab is one of the oldest cases that established the ingredients of Section 307. From this case, it can be observed that Section 307 requires only an intention to commit the offence, or knowledge that the act may result in death, and the performance of an act towards the commission of the offence. This judgement also helps clarify doubts surrounding Section 307 by laying down that the nature of the act, intervention during the commission of the act, and the consequences of the act i.e., its ability to cause death, need not be considered under Section 307. A similar view was made by the Supreme Court in its subsequent judgement, Ramla v. State (1961), where it was held that “for the purpose of Section 307, what is material is the intention or knowledge not the consequence of the actual act done for the purpose of carrying out the intention.”
Interpretation of the word ‘act’ under Section 307: It was highly debated in the case whether the act of starvation and that too with an intervention period could attract Section 307 of IPC. The court here acknowledged the use and ability of starvation as a viable method of murder. The judgement clarified that an act under Section 307, need not be the last act performed before the offence. It also correctly laid down that every act committed in the course of attempting to commit murder, irrespective of the timing and ability, shall be punishable under Section 307. By establishing these principles, this case appropriately broadened the scope of ‘an act’ under Section 307 IPC.
Consideration of intervention: Drawing from the case of Emperor v. Balwant Gogte, this case reiterated the effect of an intervention on the applicability of Section 307. This court laid down that interventions to the act of attempting to commit murder shall not vitiate the liability of the accused under Section 307. For example, if A shoots B, but because the gun was faulty and, hence, did not injure B, A will still be held liable under Section 307 IPC.
Examination of cruelty: Another important aspect of this case, is cruelty inflicted by the appellant on the victim. Domestic cruelty refers to the infliction of physical, or mental pain and the dominance of one partner over the other. This ghastly crime, where the husband starved the wife to death represents the highest version of domestic cruelty. This case has shattered traditional notions of a family, namely, love, care, and understanding. The motive behind the husband committing such an offence, and the reason behind the family permitting it, pose questions that even behaviourists would find troubling. Therefore, this case also has a deep social impact, as aptly emphasised by the court.

Conclusion

Om Prakash v. State of Punjab is significant because it helps clarify doubts surrounding Section 307. Historically, the court in this case explained the elements of Section 307. This case also explains the differences between Sections 307, 308, and 511 of the IPC and also specifies different circumstances for the application of these sections. This case is not only insightful for its legal provisional analysis and interpretation of relevant cases. The acts committed by the accused, including Om Prakash, also deeply affected society, shattering fundamental societal values. Notwithstanding these, the Om Prakash case is a landmark case that shall primarily be remembered for laying down that an attempt to murder needs an intention and an act, and that the act could be the beginning or end of an attempt to commit the offence.

Frequently Asked Questions (FAQs)

What is Section 307 of IPC?

Section 307 of IPC talks about the offence of ‘attempt to murder’. Attempt to murder requires an intention to commit an offence and performance of an act towards the commission of the offence. The punishment for attempted murder could be 10 years along with a fine, or even life imprisonment or other punishment if hurt is caused.

Is it necessary for the act performed under Section 307 of IPC to be the last Act?

In Om Prakash v. State of Punjab, the court laid down that any act performed towards the commission of the offence shall be punishable under Section 307. It was held that even the commencement of an attempt to commit an offence shall be punishable. For example, attempting to shoot from a far distance, though it may not injure the victim, shall be punishable under this Section.

When is Section 511 of IPC invoked?

Section 511 IPC can be invoked during situations where no other existing provision of IPC provides punishment for the “attempt” to commit some offence whose punishment is life imprisonment or other imprisonment is committed. Section 511 IPC can be invoked, provided the above conditions are fulfilled to reduce the punishment to one-half of the longest term of imprisonment imposed for the particular offence.

References

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Finance Bill, 2023 : paving a self-reliant trajectory for MSMEs

By

Vanshika Kapoor

-

May 4, 2024

0

This article has been written by Pratheeswaran D pursuing a Diploma in International Taxation and Transfer Pricing from LawSikho.

This article has been edited and published by Shashwat Kaushik.

Table of Contents

Introduction

The Finance Bill 2023 contains various amendments with the motive of developing the Indian economy. One of the amendments among the various amendments is Section 43 of the Income Tax Act of 1961. This amendment was introduced for the benefit of MSMEs, which contribute almost 30% of India’s GDP. The main aim of the amendment is to ensure payment to the MSME sector in a timely manner, which in turn helps the MSME sector manage their working capital in a better way. “This amendment is important because the MSME sector helps the industrialisation of the rural area, which in turn helps to create more employment opportunities for the people in the rural area in a cost-efficient manner.”

The role of micro, small and medium enterprises (MSMEs) in nation-building

The MSME sector is an important pillar of the Indian economy as it contains a large number of networks of 30 million units, creates employment of 70 million, manufactures more than 6,000 products, contributes almost 45% to the manufacturing output and 40% of the exports of the country directly and indirectly. The contribution of the MSME sector is crucial for the Indian economy to reach the $5 trillion mark.

Problems faced by MSMEs in India

The delayed payments from the supplier severely affect the financial well-being of the MSME sector. The total amount that is payable to the MSME sector is Rs. 15 lakh crore, and this amount accounts only for a small percentage of the MSMEs that are registered (the total number of MSMEs that are registered in India is 13% of the total number of MSMEs). This is very severe among microenterprises, which experience delayed payments 80% of the time. This delayed payments mostly beyond the statutory time limit of 45 days. 45% of the delayed payments are beyond the time limit of 180 days from the product or service delivery.

Inadequate infrastructure facilities, transportation facilities, and a lack of market facilities pose a very challenging situation for MSMEs.

The most important challenge faced by the MSME sector is the availability of manpower and the availability of skilled manpower is very difficult, as it is very important to prove their competitiveness.

Initiatives taken by the government to tackle the problems

The government has taken various steps to tackle the problems faced by MSMEs. Some of the initiatives are listed below:

The Pradhan Mantri Mudra Yojana (PMYY) provides collateral loans to MSMEs.
The Make in India campaign promotes manufacturing at home and incentivises MSMEs to take part in the worldwide supply chain.
Digital India offers digital infrastructure to MSMEs, such as e-commerce, digital marketing, and digital advertising.

Section 22 of the MSMED Act mandates that where any buyer is required to get his annual accounts audited under any law for the time being in force, such buyer shall furnish additional information in the annual statements of accounts, namely:

The principal amount and interest due thereon (to be shown separately) remain unpaid to any supplier as of the end of each accounting year.
The amount of interest paid by the buyer in terms of Section 16, along with the amount of payments made beyond the appointed day during each accounting year.
The amount of interest due and payable for the period of delay in making payment (which have been paid but beyond the appointed day during the year) but without adding the interest specified under this Act.
The amount of interest accrued and remaining unpaid at the end of each accounting year, and
The amount of further interest remaining due and payable even in the succeeding years, until such date as the interest dues as above are actually paid to the small enterprise.

Understanding the industries and enterprises

Classification	Criteria	MICRO	SMALL	MEDIUM
Manufacturing enterprises and enterprises providing services	Investment in plant and machinery or equipment.	<1 crore	<10 crores	<50 crores
	Turnover	<= 5 crores	<= 50crores	<=250 crores

Payment timelines for MSMEs

Before this proposed amendment, the government had already implemented various measures to improve the cash flows of MSMEs. As per Section 15 of the Micro, Small, and Medium Enterprises Development Act, 2006 (MSME Act, 2006), buyers are responsible for paying the suppliers within 15 days if there is no agreed date, or within a maximum of 45 days if there is an agreed date. Additionally, Section 23 of the MSMED Act, 2006 states that the interest paid to micro, small, and medium enterprises will be disallowed during the computation of income for the calculation of tax.

Understanding Section 43B(h)

The Finance Bill of 2023 has proposed an amendment to Section 43B of the Income Tax Act of 1961. This amendment suggests adding clause (h) in Section 43B, which suggests that any sum payable by the assessee to a micro and small enterprise beyond the time limit specified in Section 15 of the MSMED Act shall be allowed in computing the income of the previous year in which the sum has been paid. This is irrespective of the previous year in which the liability to pay the sum was incurred, as per the accounting method regularly employed.

Applicability of the amendment

It is important to note that the amendment applies only to payments to micro and small enterprises and does not include any payments made to medium enterprises. The difference between micro, small, and medium enterprises is clearly defined in the table above.

This clause is applicable only when the enterprise is buying goods or taking services from the entity registered under the MSMED Act, 2006. It’s important to note that the buyer’s registration under the MSMED Act is not mandatory. Clause 43B comes into effect on April 1, 2023.

Examples of different cases are given below

When there is no agreement between the buyer and seller

Date of invoice	Date of delivery of goods	Due date of payment as per MSMED Act	Payment date	Deducted as an allowance in the FY	Reason
10.03.2024	10.03.2024	25.03.2024	28.03.2024	FY 2023-2024	If paid after the due date of the MSMED Act, then it will be allowed as a deduction for the year when the payment was made. Here, the payment was made in the same financial year so it was eligible for deduction in the same FY.
10.03.2024	10.03.2024	25.03.2024	02.04.2024	FY 2024-2025	If paid after the due date of the MSMED Act, then it will be allowed as a deduction for the year when the payment was made. Here, the payment is made in the subsequent FY. Hence, it will be allowed in the next FY.
10.03.2024	17.03.2024	01.04.2024	28.03.2024	FY 2023-2024	The deduction was allowed in the same FY as the payment was made within the due date
10.03.2024	17.03.2024	01.04.2024	03.02.2024	FY 2024-2025	If paid after the due date as per the MSMED Act, then it will be allowed as deduction for the year when the payment was made. Here, the payment was made in the next FY so it will be allowed in the next FY.

When there is an agreement between the buyer and seller

Date of invoice	Date of delivery of goods	Agreement days	Due date of payment as per MSMED Act	Payment Date	Deducted as an allowance in the FY	Reason
10.03.2024	10.03.2024	15	25.03.2024	28.03.2024	FY 2023-2024	If paid after the due date of the MSMED Act then it will be allowed as a deduction for the year when the payment was made. Here the payment was made in the same FY so it was eligible for deduction in the same FY.
09.02.2024	09.02.2024	60	25.03.2024	02.04.2024	FY 2024-2025	If paid after the due date of the MSMED Act, then it will be allowed as a deduction for the year in which the payment was made. Here, the payment was made in the subsequent FY so it will be allowed in the next FY.
10.03.2024	17.03.2024	15	01.04.2024	28.03.2024	FY 2023-2024	The deduction was allowed in the same FY as the payment was within the due date as per the MSMED Act.
16.02.2024	16.02.2024	60	01.04.2024	05.04.2024	FY 2024-2025	If paid after the due date of the MSMED Act, then it will allowed as a deduction for the year when the payment is made. Here, the payment was made in the next FY so it will be allowed in the next FY.

Requirements to comply with the amendment

Businesses are required to maintain a list of suppliers who belong to micro, small, and medium enterprises and be aware of their MSME registration status to strictly adhere to the payment terms as per the MSMED Act. The categorisation of the suppliers is essential for complying with the requirements of the amendment.

Conclusion

These proposed amendments will ensure timely payments to micro and small enterprises, leading to better working capital management, which in turn helps the organisation grow rapidly and easily expand its operations, which in turn boosts the GDP of the nation.

On the other hand, it causes inconvenience to the buyers as they need to carefully monitor various due dates at the same point in time to calculate the allowance and disallowance as per the Act, which itself is a tedious process and involves higher operational costs.

Therefore, this may discourage buyers from buying from the MSME-registered supplier unless there is a cost-benefit because the bigger suppliers may provide a longer credit period and there are no restrictions on paying them within any due dates.

References

How to take legal action against adultery in India

By

Diganth Raj Sehgal

-

May 4, 2024

0

Adultery — Image source: https://bit.ly/36SiIRX

This article is written by Abanti Bose and further updated by Pujari Dharani, a B.A.LL.B. student at Pendekanti Law College, affiliated with Osmania University, Hyderabad. This article discusses and explains the offence of adultery and the procedures for taking legal action against it.

Table of Contents

Introduction

An institution like marriage heavily relies on the commitment, loyalty and faithfulness of partners. Among all the religions and all the countries; marriage has been given a pious and sacred position. Therefore, if either of the spouses commits adultery, they are not only breaking the promises that were made to each other but also ruining the sanctity of the marriage. The offence of adultery previously held the man who committed the act of adultery guilty and stated that the married woman was a helpless victim of adultery and she was free from “criminal responsibility”. It can be stated that the man committing the offence of adultery, a sexual liaison, was unfaithful and disloyal towards his wife. However, after Joseph Shine, a non-resident Keralite, filed a Public Interest Litigation under Article 32 of the Constitution of India challenging the constitutionality of the offence of adultery, the apex court struck down the offence of adultery as it violates the basic dignity of women and treats women as the personal property of the husband.

Though the act of adultery is no longer a criminal offence it is still a ground for divorce in both Hindu and Muslim personal law and therefore, the objective of this article is to legally educate the spouse about the legal remedies that are available to him or her and the availability of legal procedures in India which could be taken against his or her spouse if they commit the offence of adultery.

Meaning of adultery

The word adultery is derived from the Latin word ‘Adulterium’ which is termed as the extramarital sex and is considered objectional on social, religious, moral, or legal grounds. Merriam-Webster dictionary defines adultery as “voluntary sexual intercourse between a married person and someone other than that person’s current spouse or partner.” Under Section 497 of the Indian Penal Code, 1860 the act of committing adultery is criminalized, it states that any person who has sexual intercourse with a married woman without the consent or connivance of her spouse, such act amounts to the offence of adultery. The punishment for committing adultery may extend up to imprisonment for five years, or with a fine, or both.

Other stipulations provided by this provision for constituting the offence of adultery are as follows:

The man committing the offence of adultery must have knowledge that the person with whom he is having sexual intercourse is a married woman, or, at least, he has a reason to believe the same.
The actions of the said man must not amount to the crime of rape. That means the woman has to willfully consent to the act.
It is not an offence of adultery if a married man has sexual intercourse with an unmarried woman, divorced woman, or widow. The cases in which the spouse of the woman consented are also excluded from the ambit of adultery.

Besides this, adultery is also known as an “extra-marital affair”. It is a moral crime in Indian society because almost all religions in India consider it a sin.

Decriminalisation of adultery

In Joseph Shine v. Union of India, Joseph Shine a non-resident Keralite, filed a Public Interest Litigation under Article 32 of the Constitution of India challenging the constitutionality of the offence of adultery under section 497 of the Indian Penal Code, along with Section 198(2) of Criminal Procedure Code which dealt with prosecution for offences against marriages.

On 27th July 2018, a five-judge bench of the Supreme Court unanimously struck down Section 497 of IPC and Section 198 (2) of the Criminal Procedure Code as being violative of Articles 14, 15 and 21 of the Constitution of India.

The bench held in the judgement that the Section is violative of Article 14, which deals with the right to equality and it only penalizes men and not women. Article 15(1) of the Constitution prohibits the State from discriminating on the grounds of sex. The offence only considers the husband as the aggrieved party if his wife commits the offence of adultery but the law does not consider the wife as an aggrieved party if her husband commits sexual intercourse with another woman. Also, it is violative of Article 21 of the Constitution which deals with the protection of life and personal liberty, and section 497 of IPC treats women as the personal property of the husband and goes against the basic dignity of women.

The bench further stated that: “Treating adultery an offence would be tantamount to the State entering into a real private realm. The act, i.e., adultery does not fit into the concept of crime. If it is treated as a crime, there would be an immense intrusion into the extreme privacy of the matrimonial sphere. It is better to be left as a ground for divorce.” Therefore, at present, adultery is not a criminal offence, but a civil wrong as it causes a breakdown of marriage, especially when there are pre-existing marital issues between spouses.

Reasonable ground for divorce in case of adultery in marriage

Even if the offence of adultery is decriminalized under Section 497 of the Indian Penal Code, it constitutes a reasonable ground for divorce, i.e. if either the husband or wife commits adultery, the other person can file for divorce solely based on this reason. Marriage is a pious bond and involves, Marriage is a pious bond and involves loyalty from both parties, therefore if either party is violating the sanctity of the bond, then the law allows the other person to file for divorce on the ground that his or her wife committed the act of adultery.

Under Hindu personal law

Both Smritis and Dharmasutras, among other Vedic texts, prohibit illegal sexual relations between a man and a woman and award punishment for both wrongdoers. Based on this, the Hindu Marriage Act, 1955, recognised the offence of adultery as grounds for divorce.

Under Section 13(1)(i) of the Hindu Marriage Act, 1955, the Act lays down that if either the husband or wife after the solemnization of marriage had sexual intercourse with any person other than his or her spouse, then that person has committed the offence of adultery and it is a reasonable ground to file a divorce. A Hindu man, as well as the a woman, can seek divorce on the grounds that his or her spouse committed the act of adultery. Therefore, under the Hindu Marriage Act, having voluntary sexual intercourse with someone other than his or her spouse is a reasonable ground for divorce.

Under Muslim personal law

In Muslim law, marriage is generally considered to be a civil contract. The purpose of marriage is stated to be the legalisation of sexual intercourse between the parties to the marriage, the procreation of children, and conferring legitimacy on those children. The act of adultery by one spouse is considered to be a breach of duty. Additionally, Islamic law treats the commission of adultery as an atrocious act, as given in Quran Surah Al-Isra Verse 32. Furthermore, the Holy Book states that the God Allah stipulated punishment for the said wrong in the Quran (4: 15-16) and, hence, one should not shy away or hesitate to punish the wrongdoers.

Under Muslim personal law, it is an allegation of adultery to the wife by the husband that entitles her to file a suit for dissolution of marriage and to get a divorce if the charges are proven to be false. According to Muslim law, a marriage is valid until a verdict is passed by the judge. To dissolve a marriage under the doctrine of lian, (which states where the wife is charged with adultery by her husband and the charge is false) the court should determine whether the charges of adultery were unjustly made.

And in Islam, sexual relation out of wedlock is a major sin. According to Section 2(viii)(b) of the Dissolution of Muslim Marriage Act, 1939, a married woman under Muslim law is entitled to obtain a decree for the dissolution of marriage if her husband associates with woman of ill-repute. Although adultery as a ground for divorce is not mentioned in the Act, the interpretation of the above Section helps us to understand that if a Muslim man indulges himself in adultery his wife is entitled to divorce by treating her husband’s adulterous acts as cruelty under Section 2(viii) of the said Act.

Under Christian personal law

Marriage, as per Christianity, is the divine bond and should not result in separation or termination by divorce. The Holy Book, the Bible (Deuteronomy 22:20-24), also says that the persons involved in illicit sexual intercourse, including the wrong act of adultery, must be punished, which also includes the death penalty, irrespective of gender. Thus, both the New and Old Testaments regard adultery as a great sin as it violates marital fidelity.

Type of evidence needed for proving adultery in a marriage

In every criminal trial, adducing evidence and proving it by the person alleging adultery is necessary in order to punish the person who has committed the wrong. According to the principles of the Evidence Law, judgment can be made based on direct evidence as it has a higher evidentiary value. If the case has only circumstantial evidence, the court waits for the petitioner to present direct evidence but cannot go on to decide the matter solely based on the circumstantial evidence.

However, in the case of adultery, direct evidence is difficult to get therefore one has to rely on circumstantial evidence which should be sufficiently presented before the court so that the act of adultery will be inferred from it. It can be proved before the court by presenting pieces of evidence like:

Circumstantial evidence,
Evidence which states non-access and the birth of children,
Evidence of visits to the houses of ill-repute,
Contracting venereal disease,
Admissions that have been made in previous proceedings.

It is essential that there must be circumstances amounting to proof that opportunities could be used, such as the association of the parties was so clear that adultery might reasonably be assumed as the result of an opportunity for its occurrence.

Steps to follow to take legal action against the spouse if he or she commits adultery

The steps to follow to take legal action against the spouse if he or she commits the act of adultery:

Firstly, it is extremely important to ensure that the act is adulterous. These acts can be considered adulterous; when there is a birth of a child beyond the period of twelve months after the cessation of the marital consortium between the spouses, if the act of adultery is admitted by the spouse, or in any other such circumstances that prove the commission of the adultery.
The aggrieved spouse may also appoint a private detective or investigator to collect evidence that could, subsequently, be presented before the court.
After the spouse is done with the collection of evidence he or she should contact a lawyer as it is important for him to weigh out his options and also to understand the legality of admission of pieces of evidence before the court, according to the personal law under which their marriage is performed, contracted, or registered.
Fourthly, if the spouse wants to file for divorce then he or she should move to court and file a petition for divorce.
If both the husband and wife after reviewing the above factors decide to opt for divorce through mutual consent, then:
1. Firstly, both the parties need to file for divorce before the district court.
2. Before filing the petition, couples should live separately for a period of one year or more. Then after the petition is allowed parties are required to file a statement and if any party is unavailable then the statement will be filed by his or her family member.
3. Now, before the court, couple needs to give reasons as to why they are unable to live together and mention in the petition that they have mutually agreed to dissolve the marriage.
4. Finally, the court will inspect the documents and after a period of 6 months and not more than 18 months will give a date for listening to the parties. And after hearing the parties, if the court is satisfied then it may pass a decree of divorce declaring the marriage to be dissolved.
If the parties try to seek divorce through contest, then:
1. Firstly, the spouse needs to file the divorce petition before the family court.
2. Secondly, the court will send a copy of the petition to the spouse.
3. Then both parties should be prepared to face the court proceedings as the divorce is contested by either the husband or the wife.
4. Finally, if the divorce is granted then the court will further give a six-month span for reconsidering the issue and the maintenance which ought to be provided will also be decided.
Maintenance which is to be provided after the divorce: If the wife commits the act of adultery, then she will not be entitled to receive maintenance from her husband or if she refuses to live with the husband without any sufficient reason or cause. However, if the husband commits the act of adultery then he will be liable to provide maintenance to the wife if she is unable to fend for herself.

Punishment for adultery by treating it as cruelty under Section 498A IPC

Whether the husband’s act of adultery is regarded as cruelty under Section 498A of the IPC so that one who commits such a matrimonial offence can be punished by criminal courts, is a most important as well as interesting question. A few argue that an act of adultery can be regarded as mental cruelty because such betrayal by the husband causes huge sorrow to the wife, which, sometimes, may lead to depression and other mental trauma. On the other hand, a few people contend that mere adultery by the husband does not attract Section 498A of the IPC because the woman would not suffer any physical or mental harm or because such an incident is not so serious or intense that the woman would likely commit suicide. Let us now know how the Supreme Court answered this vital question.

In the case of Pinakin Mahipatray Rawal v. State of Gujarat (2013), the Supreme Court decided that just because the husband has an extra-marital affair during the continuance of the marriage, it would not constitute cruelty under Section 498A of the IPC. However, the Court, in the above case, stated that, if such an act of adultery committed by the husband instigates, abets, or intends to abet the wife, directly or indirectly, to commit suicide as per the wording of Section 498A and Section 306 IPC, the husband can be charged with cruelty by his wife and can also be sentenced to imprisonment by criminal courts once the gravity or intensity of the offence is proved by the prosecution. Therefore, the court must examine the facts of each case in order to decide whether the wife experienced cruelty from her husband, which induced her to commit suicide. In the famous case of K.V. Prakash Babu v. State of Karnataka (2016), the Supreme Court suggested taking a few factors, such as the social status of the parties to the suit and their individualistic perception, into account while deciding the case of adultery as cruelty.

In another important authority, Siddaling v. State of Karnataka Through Kalagi Police Station (2018), the accused was convicted under Section 498A and sentenced to rigorous imprisonment for two years on the grounds of both dowry demands and adultery. The victim even took the extreme step of committing suicide. His acts were proved by the respondent with many witnesses and documentary evidence. Based on these, the Supreme Court concluded that the psychological imbalances in the wife, which are the reason for her commission of suicide, were created because of the husband’s continued extra-marital affair.

The Supreme Court firmly held, in Laxman Ram Mane v. State of Maharashtra (2010), that adultery by the husband would clearly amount to cruelty under Section 498A of the IPC. Even if the incident is not so serious as cruelty, it can still be considered harassment or misbehaviour on the part of the husband towards the wife. In Chami v. State (2013) Cr LJ 3441, the Court regarded the husband’s act of bringing a concubine to his house so they could live together as a couple and have sexual relations in front of the married wife as cruelty and could be punished under Section 498A of the IPC. Nevertheless, allowing the first wife and her child to live in the matrimonial home where the current wife was residing does not amount to cruelty within the explanation of clause (a) of Section 498A of the IPC, as ruled by the Supreme Court in the case of Kantilal Martaji Pandor v. State of Gujarat and Anr. (2013).

Important case laws surrounding adultery

Valsarajan v. Saraswathy (2003)

In the case of Valsarajan v. Saraswathy (2003), the petitioner, Valsarajan, and respondent, Saraswathy, married in 1987, which was eventually dissolved in 1997 on the grounds of adultery committed by the wife. During the divorce proceedings, the wife claimed maintenance, which was not sustained because she is not entitled to maintenance under Section 125 of the Criminal Procedure Code, 1973, on the ground that she had committed a marital wrong as per Section 125(4) of the CrPC. The woman made a fresh application as a divorced wife for maintenance, whereas the earlier one was claimed as the wife of the petitioner, for this reason, the court allowed the application. In the case of the divorced woman, the provision of Section 125(4) of the CrPC is not applicable, and the former husband is under a statutory obligation to maintain her if she is not in a position to maintain herself and is not married again. Therefore, the Kerala High Court held that the divorced woman is entitled to receive maintenance from her former husband under Section 125 of the CrPC.

M. Chinna Karuppasamy v. Kanimozhi (2015)

In the case of M. Chinna Karuppasamy v. Kanimozhi (2015), the question of whether a woman against whom the grant of divorce has been passed on the ground of the commission of adultery by her is entitled to get maintenance from the former husband is examined once again, this time, by the Madras High Court. The respondent, the divorced woman, made a plea that the provision of Section 125(4) of the CrPC applies only in cases where the marriage is continuing and, as the marriage is dissolved, she has the right to choose her sexual life. The Court observed that the meaning of wife, as per Section 125 of the CrPC, also includes divorced wives. Hence, in order to avail herself of maintenance from her former husband, the divorced woman has to lead a disciplined life similar to that when the marriage was in existence. Thus, the Court held that a woman who continues to live in adultery even after being divorced from her husband has no right to seek maintenance. Furthermore, the Court observed that if a man after divorce is obligated to maintain his former wife, similarly, a divorced woman has a duty not to start or continue an immoral relationship with another man.

Sh. Pradeep Kumar Sharma v. Smt. Deepika Sharma (2022)

The High Court of Delhi, in Sh. Pradeep Kumar Sharma v. Smt. Deepika Sharma (2022), clarified that the law in Section 125(4) applies only in those cases where the convict of adultery continued to live in adultery or repeated the acts of adultery. The High Court also referred to Sandha v. Narayanan (1999), which defined the phrase “living in adultery” as distinguished from “committed adultery”. Thus, if the wife continues adultery despite being divorced by the husband, she will not succeed in a maintenance petition against her former husband on the grounds of her continued adulterous conduct. The High Court further stated that, for an application of Section 125(4), the husband must provide substantial evidence that the wife is living in adultery after divorce. One or two instances of adultery will not attract the said provision; rather, it must be continuous or repeated acts of adultery. Therefore, the wife who occasionally commits adultery can seek maintenance.

Conclusion

The act of adultery is no longer a criminal offence but a reasonable ground for divorce in both Hindu and Muslim law. If the spouse feels that it is difficult to cohabit with his or her spouse and takes the decision to terminate the marriage on the grounds that his or her partner committed the act of adultery and was no longer faithful to him or her, then the law permits that. However, it is important to understand that the burden of proof lies with the party accusing the other party of the adulterous act, therefore, he or she should collect the relevant evidence to prove the offence of adultery before the court in order to terminate the marriage.

Adultery is an offence that negatively affects the institution of marriage in Indian society. The onus of protecting, promoting, and preserving the important social institution called marriage is on the state for the maintenance of order and peace in the country. Hence, offences like adultery must be controlled and punished in a civilised country.

Frequently Asked Questions (FAQs)

Can a person whose spouse has committed adultery seek matrimonial relief of judicial separation?

Except under Muslim law, all personal laws allow seeking judicial separation on the grounds of adultery committed by a spouse. In Section 10 of the Hindu Marriage Act, 1955, it is clearly stated that the act of adultery by one spouse is a ground for judicial separation available to another. The aggrieved party can seek this relief under the Christian Marriage and Divorce Act, 1957. For Parsi people seeking judicial separation, there is a provision under their personal law i.e., Section 34 in the Parsi Marriage and Divorce Act, 1936. However, as there are no provisions in the Muslim Law talking about this matrimonial relief, Muslims cannot seek judicial separation on the grounds of adultery. But a Muslim woman can seek divorce after proving adultery to her husband.

Whether one single act of adultery is a ground for divorce?

Yes, there are many judicial decisions by various high courts asserting that even proving a single occurrence of adultery against the accused spouse by the alleging party. The Madhya Pradesh High Court, in the case of Rajendra Agrawal v. Smt. Sharda Devi (1992), ruled that “the proof of only one instance of voluntary sexual intercourse by the other party with any other person except his or her spouse, is enough for a decree of dissolution of marriage.”

Would partial penetration constitute adultery in India?

In English law, a partial penetration is enough to prove constituting the offence of adultery. Similarly, in Indian law, the courts do not require the prosecution or petitioner to prove actual or full penetration. Considering the values and taboos of Indian society, the Madras High Court, in Subbarama Reddiar v. Saraswathi Ammal (1966), held that “If an unrelated person is found alone with a young wife after midnight, in her bedroom, in an actual physical juxtaposition unless there is some explanation forthcoming for this that is compatible with an innocent interpretation, the only interpretation that a Court of law can draw must be that the two were committing an act of adultery together.” It further said that this issue is a question of fact, not a question of law.

What is the rule of evidence in cases of adultery?

The burden of proving the act of adultery by a spouse is on the petitioner who is alleging it. It was, initially, mandated that the alleging party prove the said wrong beyond all reasonable doubt. However, it is difficult to prove such a wrong, which mostly happens behind closed doors, beyond all reasonable doubt. The rule has changed, and today, proving adultery by a preponderance of possibilities is sufficient. In Neelam v. Sunil (2009), the Madhya Pradesh High Court decided that if the accused persons stayed together in one room for a considerable period, it was satisfactory and convincing circumstantial evidence that the wife had committed adultery. Hence, the Court granted the decree for divorce in favour of the husband under Section 13(1)(i) of the Hindu Marriage Act, 1955. Thus, it is not necessary to prove the act of adultery with complete certainty but must prove it with a high degree of probability.

References

Section 26 of Arbitration and Conciliation Act, 1966

By

Vanshika Kapoor

-

May 4, 2024

0

This article is written by Janani Parvathy J, and it contains a detailed analysis of Section 26 of the Arbitration and Conciliation Act, 1966. The article includes an explanation of individual elements of Section 26, types of experts under Section 26, interrelation with the Indian Evidence Act, and some important judgments on Section 26.

This article has been published by Shashwat Kaushik.

Table of Contents

Introduction

Arbitration is becoming one of the most widely used mechanisms for dispute redressal. Several companies, corporations, and even governments dealing in different areas use arbitration to resolve their disputes. A survey of in-house counsels and corporate executives, by the reputed legal firm Khaitan and Co., revealed that an overwhelming 40% of people preferred arbitration over litigation. Ander Yeah SC and Kelvin Pooh from Global Arbitration Review, also found a significant increase in the use of arbitration in the Asia-Pacific region, with 3 out of the top 5 arbitral seats situated there. Further, in India also several governmental, and non-governmental organisations, like Vodafone, BSNL, Tata, and government PSUs prefer arbitration. But, with the roses, comes the thorns, the arbitrator may not always possess sufficient knowledge of the specific area of dispute. The 21st century is extremely complex and dynamic. The introduction of several technologies, Computer Related Inventions (CRI), legal complexities, new subject matters and novel sub-divisions like Quantum, Artificial Intelligence, and scientific wars, have made it extremely difficult for the arbitral tribunal to adjudicate alone. Additionally, all investigations and analyses require the assistance of several departmental officers at many stages. To deal with such complex situations with efficiency and expertise and in order to minimise the possibilities of error by the tribunals, Section 26 of the Arbitration and Conciliation Act, 1996, (hereinafter referred to as ‘Act’) was introduced. Section 26 deals with bringing in experts to assist the tribunal with their expert knowledge.

Clause-wise explanation of Section 26 of the Arbitration and Conciliation Act

The Arbitration and Conciliation Act, of 1996, was amended two times, first in 2015 and then in 2019. Though several changes were made through these amendments, the core matter of Section 26 remained the same, while the section orders were changed. Section 26 of the Arbitration and Conciliation Act, 1996, contains the provision for appointing experts. The section contains 3 clauses and 2 sub-clauses in total.

Clause 1

1(a) The first clause empowers the arbitral tribunal to appoint an expert to assist them by reporting to them on specific issues that need to be resolved.

1(b) Sub-clause two, mandates the parties to assist the expert by providing any document, information on any relevant document, or by providing any goods needed for inspection.

The parties, in the arbitration, are required to produce all the requested reports and documents within the time duration specified; if not specified, then within a reasonable time.

Clause 2

Clause 2 permits the participation of experts in the oral hearings of the arbitral proceedings, provided their presence was deemed necessary. This not only gives parties the chance to examine the expert but also helps establish the credibility of the expert statements, along with clarifying any doubts or discrepancies identified in the report.

Clause 3

This clause mandates the expert to provide the parties with the property, documents, and goods in his possession and used by him to prepare the report, for examination by the tribunal or on request of the parties.

Essential requirements for the applicability of Section 26

It must be agreed upon by both parties to call for expert advice.
The expert can only be appointed by the arbitral tribunal.
Clauses 2 and 3 of the Section, i.e., oral examination of the witness and production of relevant documents used by the expert, will be applicable only if requested by either party, deemed necessary by the tribunal, and only if accepted by both parties.

Who qualifies as an ‘expert’

The qualifications of an expert have been mentioned in different statutes and precedents. Apart from Section 26 of the Arbitration and Conciliation Act, 1996, the qualifications of an expert in the arbitration proceedings are also mentioned in Article 5.2.c of the International Bar Association rules, Article 29 of the UNCITRAL (United Nations Commission on International Trade Law) model law, Article 55 of the WIPO (World Intellectual Property Organisation) mediation and arbitration rules, Article 25 of the International Chamber of Commerce rules, 2021, and the Ciarb Protocol, 2007.

Articles 5 and 6 of the International Bar Association, talk in detail about arbitration experts. Article 5(2)(c) mandates the expert to display his independence from the parties, their counsel, and the arbitral tribunal by submitting a statement for the same. Article 6(1) of the same rules also requires ‘independence’ in the expert appointed by the tribunal. Article 6(2) also requires the expert to submit a statement of his qualifications in the subject matter of the dispute. Further, Article 6(4)(c) requires the expert report to be backed by evidence, reasoning and logic.
Section 29 of the UNCITRAL arbitration mandates that an arbitration expert must be an individual who is adequately qualified, impartial and independent.
The WIPO Arbitration rules also specify that an expert must be competent and independent.
The International Chamber of Commerce(ICC), published a dossier, where it emphasises that an expert must be impartial and independent i.e., not related to any party or the arbitral tribunal.
The 2018 Queen Mary University International Arbitration Survey concluded that experts should adhere to the same standards of impartiality and independence as arbitrators. Justice Black, in the Commonwealth Coatings Corp v Continental Casualty Co 393 US 145, observed that arbitrators must resolve all doubts that arise about bias, applying the above logic, even arbitration experts need to abide by the same.
An analysis of the Indian Evidence Act and Arbitration laws can point out that expert evidence under both are similar. Therefore, the observance of the Supreme Court in, the State of Himachal Pradesh vs. Jai Lal and Ors. (1999), that, to qualify as an expert witness, the person must have adequate knowledge of the subject, have done special study in that subject, or must have undergone training for that subject, and must be able to back up his claims with reasoning, shall apply to arbitration experts as well.
In Hazi Mohammed Ikramul Hague vs. State of West Bengal (1958), the Appellate court emphasised that the expert appointed under arbitration must be a person able to back up his theory with reasoning and facts.

After analysis of the Arbitration Act and other international rules, the following qualifications of an expert can be inferred:

Impartiality and Independence: The expert must neither be related to the parties nor to the arbitrators in any way. The expert should not have any prior bias towards a single party. The expert must perform his duty in a professional and unbiased manner throughout the period of his assistance. Non-biasness is one of the founding principles of a judicial proceeding according to the principles of natural justice. The 2018 Queen Mary University International Arbitration Survey concluded that experts should adhere to the same standards of impartiality and independence as arbitrators.
Knowledgeable on the specific topic: The expert is consulted to help the arbitral proceedings by providing his expertise, knowledge, and skills. Tribunals usually consult experts from fields like law, technology, marketing, science and innovation, and arts and demand persons knowledgeable on all aspects of the subject.
Prior experience: Specialisation in the specific field, along with desirable prior work experience and research work, are factors that tribunals and parties look for when in search of an expert. Prior experience can be obtained either by studying in that specific field, or by working in that field.
Academic Record: Persons with commendable academic records and graduates from top colleges or educators are mostly appointed as experts.

Need of an expert

The purpose behind inserting Section 26 of the Arbitration and Conciliation Act highlight the significance of expert advice in arbitral proceedings. Arbitration could involve several complex theories, specific terms, and principles unknown to the arbitrators. The case could involve technical aspects from different fields like arts, science, and business. It becomes highly important to use external help from experts to make decisions in these situations. For example, in international arbitration, help from a foreign legal expert might be necessary to explain the rules of that country, or for a matter related to scientific advancement, the opinion of a scientist may also be necessary.

Generally, an expert could also be needed to value some necessary assets, perform a site inspection, provide expert opinion on scientific innovations or upcoming technologies, or conduct an expert analysis of the whole situation. The increasing demand for quantum experts highlights this point. An expert may also help in the disclosure of some important documents that can not be accessed due to confidentiality or privilege restrictions. Additionally, even parties are given the opportunity to present expert witnesses who can substantiate their case and favour their theory. Expert evidence can become a crucial factor in influencing the decision of the tribunal.

The Supreme Court, in State of Himachal Pradesh v. Jai Lal and Ors, observed that “An expert witness needs to provide the Judge with the necessary scientific criteria for testing the accuracy of the conclusions, to enable the judge to form his independent judgment by using this criteria to the facts of the case. The scientific opinion evidence, if intelligible, convincing and tested, often becomes an important factor for consideration along with the other evidence of the case”.

Mr. Stephen Bond, a renowned law professional from Covington & Burling LLP, while discussing the importance of expert evidence said that:

“The importance of competent and professional expertise cannot be overstated. Experienced experts are expensive, especially in cases requiring complex questions of delay analysis and damage quantification.”

In, M.S. Commercial v. Calicut Engg. Works Ltd. (2004), the Supreme Court completely relied on the evidence presented by the handwriting expert to provide a verdict that an arbitration agreement existed. Based on some judgments and examples we can classify that experts are needed for:

Expertise: On many technical matters, like science, technology, geography etc, the tribunal may require persons with expertise and knowledge on that subject. They could be needed to explain some concepts or provide their opinion on issues.
Legal Assistance: The laws of two different countries are mostly always different, and in some cases even contradicting. During such cases, legal experts are hired to clarify to the court the same.
Witness: Parties are also allowed to produce their own experts before the tribunal, to support their case. Such experts are needed by the parties to help establish their point and to convince the judge, of their story.
Make reports: Experts may also be asked to study the particular issue at hand and prepare reports for assisting the court.
Other assistance: Experts are also needed to assist the court with small activities needed during the course of the trial. For example, an accountant might be needed to audit the firm, or a handwriting expert would be needed to establish an identity.

Who appoints the expert

Experts under Section 26 can be appointed both by the parties and by the tribunal. While the tribunal may appoint experts for their expert opinion and knowledge, parties may appoint them as witnesses. Section 26 allows parties to “present expert witnesses in order to testify on the points at issue.” Along with Section 26, Section 20(3) and Section 27 of the Arbitration Act also specify that parties can individually appoint experts to help establish their case or resolve discrepancies.

When does an expert participate in the oral hearing

According to Section 26(1), experts may participate in an oral hearing if requested by parties or if deemed necessary. The section also provides that an expert can be posed questions and examined by both parties before the tribunal. However, the Act does not specify any procedure or method to be followed for oral hearings and examinations of the expert. For the admissibility of the expert evidence, it is necessary for him or her to participate in oral proceedings. Section 26 is bound by principles of natural justice i.e., opportunity must be given to both parties to examine witnesses to establish or disprove the expert’s credibility and for an unbiased judicial proceeding.

The Supreme Court, in Ramesh Chandra Agrawal v. Regency Hospital Ltd. & Ors. (2009), noted that “the first and foremost requirement for expert evidence to be admissible is that it is necessary to hear the expert evidence.”

The Supreme Court in Hazi Mohammed Ikramul Hague v. State of West Bengal (1958) upheld the Calcutta High Court decision and held the expert evidence unreliable because the expert was not examined in the oral hearings.

These precedents help us conclude that, indirectly, the participation of an expert in an oral hearing is necessary. Non-participation of the expert in the oral hearings could lead to an adverse inference by the tribunal and vitiate the entire purpose of using a witness. Though

What are the obligations of the expert according to Section 26 of Arbitration and Conciliation Act, 1966

To provide expert opinion and analysis, and address concerns of the court.
To participate in the oral hearing if needed and answer questions posed by the court and the parties with sound logic, evidence, and proper reasons.
To provide to the parties all the documents, reports, books, facts, and goods the expert relied on to form his opinion.

What are the obligations of the parties according to Section 26 of Arbitration and Conciliation Act, 1966

Parties need to provide the expert with any necessary documents, facts, reports, goods, and property related to the case for analysis by the expert.
Parties also need to request an oral examination of the expert if they require it.
Documents, goods, and property used by the expert to prepare his report can be obtained only if requested by the parties.

Types of experts appointed under Section 26 of Arbitration and Conciliation Act, 1966

Section 26 not only empowers the Tribunal to appoint experts but also allows parties to bring their own expert witnesses. Doug Jones AO, a famous arbitrator and a judge at the ICC Singapore, observes that experts can usually be classified into:

Technical Expert: When the dispute involves a special area of knowledge, the opinion or advice of an expert would be needed. Technical experts may be sought to provide expertise in fields like natural sciences, economics, business administration, marketing etc. Tribunal-appointed technical experts are a widely followed practice in civil law countries.
Legal experts: Legal experts are often needed to clarify legal aspects and issues beyond the knowledge of the arbitrators. The arbitral tribunal usually appoints legal experts to explain complex legal procedures or rules, give insights into other country regulations, and help decide jurisdiction in international disputes. They are widely appointed in both civil and common law countries.
Delay experts: Delay experts are one of the most widely used experts. They sort out facts and explain to the tribunal how and why something happened. These experts even have the power to influence the verdict delivered by the judges.
Quantum experts: They provide the tribunal with a quantum assessment of the loss, or profit, and perform the valuation of assets which are relevant to the case. These kinds of experts are mostly appointed in mergers, acquisitions, bankruptcy, or financial disputes between companies.

Interconnection of expert witness in the Evidence Act and in the Arbitration Act

Though, Section 19(1) of the Arbitration and Conciliation Act, 1996 states that the Indian Evidence Act, 1872, shall not bind the Arbitral proceedings, the concept of an expert witness under Section 26 is very similar to Section 45 and 51 of Indian Evidence Act, 1872, which are the provisions surrounding relevancy and admissibility of the expert witness. Unfortunately, unlike the Indian Evidence Act, no specific procedure or specified evidential value for expert evidence is specified by the Arbitration and Conciliation Act, 1996. However, UNCITRAL law, German, and Singapore Arbitration rules fill the existing lacunae.

Definition of an Expert:

The meaning and qualifications of an expert according to the Indian Evidence Act, and the Arbitration and Conciliation Act are similar.

Section 45 of the Indian Evidence Act,1872, clearly defines an expert. According to it, experts are specially skilled people, who assist the court in coming to a conclusion.
However, on the other hand, the Arbitration and Conciliation Act nowhere provides a specific definition for an expert. For the definition part, the international laws pertaining to arbitration fill the gap. Section 26 of the UNCITRAL laws, or define an expert as a person with specialised knowledge employed to help the tribunal. The IBA rules define a tribunal-appointed expert as a person or an organisation, appointed to report to the tribunal on specific matters.

Role of Experts:

The role and purpose of an expert under the Evidence Act and Arbitration laws coincide.

According to the Indian Evidence Act, an expert is employed to resolve the questions of the court. Sections 45-50 of the Indian Evidence Act explain that an expert shall supply the court with ballistics information, fingerprint analysis, handwriting analysis, opinion on foreign law, medical analysis, existence of customs, and scientific principles if needed. The Act also mandates the examination of some experts such as medical experts, ballistics experts, and forensic experts on a case-to-case basis.
Though, the Arbitration Act does not lay down the role of an expert, comprehensively, it does specify that experts are supposed to assist the court through their specialised knowledge and skills i.e., provide reports or opinions if asked.

Evidentiary value of experts:

Non-explicitly, the Evidence Act and arbitration laws award similar value to expert witnesses.

According to the Evidence Act, the value of an expert witness depends upon his facts, reasoning behind the opinion and his competency. Usually, evidence and opinions provided by experts are advisory. Expert opinion may help the court form its conclusion but it cannot be the sole criteria for the decision. The evidence of the expert also cannot override the already existing testimonies of other witnesses. The Supreme Court in S. Gopal Reddy v. State of A.P (1996), interpreted the Indian Evidence Act, where it held that “expert evidence is merely an opinion and not substantive or probative evidence. According to procedural rules, expert opinions lack independent value and must be corroborated with circumstantial evidence.”
Though the Arbitration Act does not address the evidentiary value of expert advice, court judgements do. The Supreme Court in Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee (2009), held that expert opinions are only advisory in nature and the court is not forced to accept them.

Examination of experts:

The Indian Evidence Act and all the arbitration laws allow the examination of the expert. The purpose behind such an examination is to provide parties with a chance to establish or destroy the rationale and persuasiveness behind the making of the expert opinion. According to both laws, examination of the expert is necessary for the court to rely on their opinion. Non-examination may lead the court to make an adverse inference.
Experts may be chief and cross-examined according to the Indian Evidence Act, and Arbitration Act. The examination of the expert under both laws follows the principles of natural justice, i.e., under both laws, both parties are allowed to pose questions to the expert. They are also allowed to inspect the sources used by the expert to come to his opinion.

Case laws on Section 26 of Arbitration and Conciliation Act, 1966

Mahavirchand S/O Suganchand Deoda v. Ashaykumar s/O Bhavarsing Parakh (2011)

Mahavirchand v. Ashaykumar Bhavarsing Parakh, explains the necessity and circumstances under which an expert arbitrator can be appointed. It also specifies some duties of the expert. It also discusses the difference between Section 17 and Section 26 of the Arbitration and Conciliation Act, 1996. The court, in this case, held that expert evidence was a step-in-aid to the tribunal process.

Facts of the case

Appellant, i.e., Mahavirchand s/ Suganchand and Respondents i.e. Ashaykumar S/O Bhavarsing are partners of the partnership firm M/S Paras in Bombay. They are retailers who deal with the sale of clothes, manufactured by Raymond Mills. One day, disputes arose between both the partners and Respondent 1 i.e., Ashaykumar approached the Bombay High Court asking for the appointment of an arbitration tribunal to resolve them.
The Bombay High Court noted that since the partnership deed already mentions arbitration for dispute resolution, the appointment of an arbitral tribunal was possible. The arbitration tribunal was appointed and it consisted of two chartered accountants and one presiding officer.
Both the parties appointed a chartered accountant each, and the court-appointed Retired High Court judge Shri Justice N.P.Chapalgaonkar as the presiding officer.

Arguments of claimants before the Arbitral Tribunal

The party which requested arbitration prayed before the tribunal that:

The partnership firm is dissolved and all assets, and properties of the firm are divided among the partners based on their share.
The accounts of the firm from the date of incorporation until now are given to the claimants and an independent impartial auditor is appointed to value the firm and perform a detailed audit.

Further, the claimant requests before the arbitral tribunal that:

A qualified expert is appointed as an internal auditor to perform the audit of the firm. A specific time period by which the expert submits his report be fixed.
The appointed expert may seek help from technology experts if needed.
The respondents must be directed to share everything i.e., all books of accounts, documents, CD files, and others that may be needed by the auditor for audit purposes.
The claimant or his representatives are allowed to be present for the entire time, until the completion of the audit proceedings.

Judgement of the tribunal

After hearing arguments from both parties, the tribunal found it necessary to appoint an expert auditor to verify the claim of financial allegations made by the claimants. Therefore, Sir R.B. Chandhak was appointed as the auditor. It was noted that the auditor shall have all the right to call for any documents, reports, or financial statements to be submitted by the respondents for a truthful and complete audit. The audit report must be submitted within one month. For the same purpose the claimant was asked to deposit one lakhs with the arbitrator.
The above order was passed under Section 17 of the Arbitration Conciliation Act.

Issues raised

Whether there was a necessity in appointing an expert in this case?
Whether the award refers to Section 26 of the Arbitration and Conciliation Act, of 1966?

Arguments raised

Appellant

The appellants i.e., Mahavirchand were represented by learned counsel Shri Soman. They contended that Section 17 of the Arbitration and Conciliation Act,1966 shall not apply in this situation.
The counsel further claimed that the accounts of the firm were audited from 1998 based on mutual agreement by the parties and that there was no necessity to appoint an independent auditor.
The counsel also claimed that no evidence to prove fraud being committed was present and also claimed that the tribunal had abruptly decided to appoint an independent auditor without evaluating the claims of the appellants.

Respondents

Respondents No. 1 and 7 were represented by Shri Ladda and Shri Bhandari. The counsel supported the order passed by the tribunal. They claim that the tribunal in their order nowhere mentioned passing of the award invoking Section 17.
The counsel put before the court the essence of Section 26. Section 26 powers the tribunal to appoint experts to assist the tribunal if found necessary. The counsel claimed that according to Section 26, the tribunal was entitled to appoint experts for special advice.

Judgment of the case

The court noted that although the order passed by the tribunal seems to be related to Section 17 of the Arbitration Act, none of the four provisions enlisted under Section 17 were applicable here. Instead, the order passed by the tribunal shall fit under the scope of Section 26 (1)(a).
The court held that the tribunal might have misquoted Section 17. A reading of the entire order made it clear that it was passed with the aid of Section 26.
The court observed that to collect data, elicit information, and effectively pass the final order, the appointment of an independent auditor was necessary. The court noted that this was a step-in-aid to help determine the issues before the tribunal and to understand all the facts related to the financial matters. Therefore, the court dismissed the appeal and approved the appointment of the expert by the tribunal.

Ssangyong Engineering and Construction Co. Ltd. v. National Highways Authority of India (2019)

In Ssangyong Engineering, Section 26 was analysed amongst several others, and it was observed that Section 26 of the Arbitration and Conciliation Act, 1996 is also bound by principles of natural justice i.e., an equitable hearing needs to be given.

Facts of the case

The respondent, the National Highway Authority of India (hereafter NHAI), issued a circular inviting tender to construct a four-lane highway on NH 26 (National Highway). The appellant was given the letter of acceptance on 30th December 2005 and the contract for a value of INR 2,19,01,16,805. Since both parties belonged to different countries namely, Korea and India, there was a need to adjust prices for labour, plant and machinery, petroleum, oil and lubricant (POL), and other local materials. Price adjustment for cement, steel, plant and machinery, and other local materials were to be performed according to sub-clause 70.3 of the contract. C1, C0, and Pc were important components of the method to adjust price under subclause 70.3.
On 14th April 2010, the NHAI published a new series changing the C1, C0 and Wholesale price index (WPI) indices. The circular also stated that contractors needed to provide an affidavit which stated their acceptance of the new series and also contained the promise not to claim in future and that a linking factor needed to be created between the new and the old series.
The Ssangyong Engineering Pvt Limited refused to accept the change and approached the High Court. The High Court conveyed that resolution through the dispute adjudication body and then the arbitral tribunal was the proper procedure. The appellants approached the High Court for an interim order against recovery and deductions sought by the appellant. The High granted a restraint.

Arbitral Proceedings

The arbitral tribunal, in majority, favoured NHAI and upheld the legality of the circular, whereas one arbitrator dissented. The arbitral tribunal observed that the arbitral tribunal held that the circular was within contractual terms and was legal.

High Court Judgment

The single bench judge of the Hon’ble Delhi High Court held that a majority decision by an arbitral bench cannot be changed. The High Court upheld the tribunal award mainly because of the majority opinion in the tribunal, though personally, it prefers the contrary.

Issues

Whether the arbitrator had proper jurisdiction and whether he went out of the scope of the contract submission?
Whether the appellants need to use a linking factor for the new series?
Whether Section 26 is bound by principles of natural justice?

Arguments

Appellant

Smt Rahmeet Kaur represented the appellants. Their counsel argued that the arbitral award went out of the scope of the submission to arbitration according to Section 34(2)(a)(ⅳ). They claimed that it was a jurisdictional error and that the tribunal never had the scope to issue orders in the first case. The order passed by the tribunal went against public policy according to Section 34(2)(b)(ii). The counsel cited several judgments to show how Section 34(2) would be applicable in the present case.

Respondent

The respondents were represented by Shri S Nandakumar. They claimed that the new formula would become unworkable without a linking factor. The counsel claimed that the appellants had already started using the new series along with a linking factor. Further, Shri Nandkumar contended that the view of the arbitral tribunal was binding and final and could not be interfered with.

Judgment

Scope of Arbitration under Arbitration and Conciliation Act, 2015

The court after analysing several precedents and international regulations, held that the award does not go beyond the scope of submission to arbitration. The subject matter of the arbitration could be comprehended as ‘disputes’ under the Arbitration Act. The court also observed that jurisdiction error shall not apply to international arbitration agreements.

Section 26

While analysing whether both parties were provided an equal opportunity to present their case, the court analysed Sections 18, 26 and 24(3). The court analysed Section 26 and observed that:

Section 26 deals with expert evidence. When an expert report is relied upon by the arbitral tribunal, the said report must first be made available to both parties at their request.
Any other documents, goods, evidence, or property relied on or used by the expert for preparing their final report must be made available to the other party.
Once the report is available to both parties, if requested by the parties, they must also be given the opportunity to question the expert.
The parties are also allowed to bring in their own witnesses to establish their case.
The court interpreted that parties also have a right to comment on ‘out-of-court knowledge obtained from an expert. The parties have a right to comment on expert evidence used by the tribunal to deliver their verdict.

Therefore, the court overruled the High Court decision while reiterating that only in exceptional circumstances the award of the arbitral tribunal could be interfered with.

Analysis of Section 26 of Arbitration and Conciliation Act, 1966

Section 26 of the Arbitration and Conciliation Act, of 1996, paves a path for easy dispute resolution by arbitration. While, Section 26 only deals with tribunal-appointed experts in detail, the arbitration act also permits parties to bring experts. Appointment of experts by the tribunal not only ensures the independence, and impartiality of the expert but also ensures the competency of the experts. These experts indirectly help in delivering justice by assisting the tribunal in the smallest manner. Technical experts, clerks, damage experts and counting experts all assist the tribunal in their own capacity. Had the arbitration act not included such a provision, it would have been a daunting task for arbitrators to find out everything on their own. Further, the time taken to resolve a dispute would also have been unimaginable. Though Section 26 has several advantages, there are some loopholes that need to be addressed. Firstly, some clarity on who can be defined as an arbitration expert is needed. Secondly, a well defined procedure for the appointment of an arbitrator would be helpful, and lastly, proper powers laid down for the expert would be helpful. Tribunal-appointed experts, sometimes, are perceived as a restraint on the liberty of the parties. Section 26 also empowers the expert to request any document, property, or goods of the parties for the purpose of inspection, thus constraining their liberty to some extent. Notwithstanding these, Section 26 is one of the strongest pillars, supporting the development of arbitration.

Conclusion

Section 26 plays a very important role in assisting the court, assisting the parties, simplifying technical data and most importantly delivering justice to the parties. With the world becoming more complex and dynamic, the need for experts to explain concepts to judges to understand the facts properly is increasingly felt. The use of assistance from scientific experts to explain technical terms, and advanced technology is on the rise. The evidentiary value and procedure to be followed for expert evidence in arbitration is very similar to that of the Indian Evidence Act. Though the Arbitration and Conciliation Act was amended several times, no major change happened to this Section. A need for some changes in this Section due to the dynamic nature of the society could be felt.

Frequently Asked Questions (FAQs)

What does Section 26 of the Arbitration and Conciliation Act, 1966 talk about?

Section 26 talks about the use of experts in arbitral proceedings. Experts can either be party-appointed or tribunal-appointed. They help assist the court by explaining several concepts or providing access to important documents.

What is the procedure to be followed according to Section 26?

Section 26 does not explicitly lay down any procedure to be followed. International laws, treaties, and the Indian Evidence Act do.

Can the expert be examined before the court under Section 26?

Yes, Section 26 provides authority to parties to examine i.e., both chief examination and cross-examination experts appointed by the parties and by the tribunal. They can be questioned and asked to back up their opinion with evidence in oral hearings.

References

Future of AI in remote work : trends and predictions for women professionals

By

Vanshika Kapoor

-

May 4, 2024

0

This article has been written by Monika Malik Shahrawat pursuing a Training program on Using AI for Business Growth from SkillArbitrage.

This article has been edited and published by Shashwat Kaushik.

Table of Contents

Introduction

We are living in an ever-changing world now, especially after COVID-19’s everlasting imprint on everyone’s lives. It challenged human lives at almost all of the segments and henceforth led us to many thresholds when it came to our survival. Technology has always proved itself to be an effective boon to us humans through time and again in many different roles and avatars.

One such effective collaboration of humans and technology, already known as artificial intelligence, prominently cemented its foot in our day-to-day lives during this period. Being physically present everywhere was challenged at the cost of human life, which had already been fighting at every point of its meaning.

Thereby increasing its significance to revolutionise almost all industries, backed up by various research and analyses done by many economists and strategists within the period of two to three years only. With changing times and scenarios of a shift in work culture and workforce, its impact can be seen as aggressive as well as assisting, depending on where you are sitting and looking. As the developing era we are a part of, its impact is huge, especially for women and their diverse roles. Since globally we are more connected in today’s time than being far, meaning distant. Let’s delve into all these aspects further in the article.

AI and it’s future

In layman’s language, we all can understand that artificial intelligence (AI) has digitised our worlds as it is powerful enough to simulate human intelligence with the assistance of computer systems, involving vast amounts of training and analysing data around numerous correlations and patterns leading to innumerable future predicaments. It has sorted human work in terms of complexity and increased work efficiency by effectively delivering cost and time-cutting results regardless of the industry or segment in which it has been applied. AI can perform tasks better than humans, which has already been seen in businesses when it comes to fraud detection, customer service, quality control, lead generation, etc. Even though it is already part of the day today to live with smartphones in everyone’s hands, SIRI and Google Assistant are the results of AI, along with many other media-related applications on our phones, working as our virtual assistants only with the help of its numerous tools.

AI can feel intimidating to human skills as it has outgrown its aspect of a machine’s understanding through the collection and understanding of a variety of data over the years. It is going to revolutionise the working scenarios in the banking, medical, teaching, and transportation sectors wherever the requirement for soft skills is less. At the same time, it presents a vast scope for new technologies and tools that can aid and assist human work in unimaginable aspects. As the growing trends in the market require demand:

Automation of repeated tasks and patterns, which have already been taken over by the AI and its tool.
Efficient use of human time and skills with the assistance of AI.
Deriving the need, space, and time for soft skills since rest can be taken care of with AI.
It has increased the scope for workspace and location, and with its help, providing a remote service with minimum human supervision has widened the doors for job opportunities as well.
Remote working can be considered a developing sector, especially after the increasing significance and assistance of AI, as it has considerably reduced the physical human requirement at any desk job.

So we can consider that it’s safe to say that it has affected all segments of working professionals in both better and bitter ways. One can wonder about its level of impact on any one segment, particularly.

Trends and predictions for women professionals

The current era is very vast or we can consider it a world with invisible boundaries when we consider the availability of marvellous technologies at human’s disposal. With what name and in which time zone you are sitting hardly matters now, especially when we all have lived through the lockdowns of the COVID-19 period. Which has changed the organisational work culture around us all.

According to an article published by CHCI (Centre for Human Capital Innovation) mentioning Hofstede’s culture dimensional model, our diverse cultures are more interconnected now than ever before, which has to be properly understood and taken into consideration. So that actual global potential can be utilised at its true potential.

For a better understanding of Hofstede’s model, we can refer to the picture below:

This works on all these aspects for any organisation to function in a balanced environment for the collective growth of all under a diverse umbrella of uniformity on a universal platform based upon a thorough understanding of the whole working scenario. It is a significant way of enhancing a remote working scenario, not just theoretically but as a practical tool with the actual layout for the improved working scenario.

Therefore, AI, with its aid and guidance from such effective models, becomes a very promising mechanism for remote work culture, making it easy for diverse and distant cultures, genders, races, and ethnicities to easily work together.

Scope for women professionals at remote job opportunities

I would like to quote Diane Mariechild here “ A woman is full circle. Within her is the power to create, nurture, and transform.” I not only agree but also take inspiration from this. A woman is indeed one of the magnificent creations of God, created to do and achieve anything she sets her will to. A professional woman who wants to live and achieve through all of the segments of her life can never have a routine or monotonous life. She is meant to go through it from phase to phase many times owing to her various roles and responsibilities, but that doesn’t mean she can’t have her freedom, work-life balance, self-growth, and development, along with a dash of happiness as well.

When an ambitious and nurturing woman wants to have such a life, remote work options prove themselves to be the best resort. Though the concept of remote work options knocked at our doors even before the pandemic the way the pandemic hurt all the professionals, this work culture has now proven it as a boon, especially for women professionals who were the worst affected ones during the pandemic. Women with children were more affected than any other strata. A remote work culture provides women with a chance to have an inclusive approach to their professional roles and personal responsibilities as well. In remote work, trends are set to lay a path for competent analysis of work efficiency depending upon factors like hours spent and quality of work, irrespective of the time and location, with the assistance of proficient tools like AI. Remote work options do give a professional the freedom to choose the hours of day or night they want to utilise for the completion of their work, which ultimately decreases the amount of time, energy, and resources spent commuting and being at a physical office. Thus, the resources spared can be used for skill enhancement, personal growth, and better work-life balance. These trends make remote work culture more desirable for any professional, and most importantly for women. This can already be seen in a survey done by LinkedIn, showing a clear inclination of women professionals for this

This chart clearly shows that the inclination of women employees is at least 4-5% higher in remote job applications than men. As quoted by copy editor Anita Coryell at LinkedIn, “We need flexibility in this complicated world,” and being in a remote job profile “allows men and women to stay in the workforce and still parent effectively.”

But it does come with its challenges and demands, which can further be understood by many surveys and theories being applied by several agencies, as https://journals.aom.org/doi/abs/10.5465/annals.2020.0384?journalCode=annal

One such observation emphasises the positive effects of growing virtuality at the workplace, which gives space for enhanced gender equality.
Another observation suggests that it does enable opportunities for women but simultaneously inhibits their success as well. In comparison, the gender-based social significance of a woman is different from that of a man.
It provides career-enhancing opportunities but at the same time, these decreasing boundaries of work and personal space can be career damaging thereby undermining the capabilities of women professionals.
Remote work options give a chance to create and work with a more diverse workforce, promoting diversity, inclusiveness, and belongingness at a global level from the comfort of one’s personal space.
Another aspect of remote work is that it is more effective for women to have some sort of care-providing support system in their comfort zone when managing personal family responsibilities, because a lack of such a system can become even more challenging if they are required to give much more time or attention to their roles at their remote job opportunity.
Also, when working remotely and video conferencing becomes an everyday tool for interacting, it automatically gives your icon space an equal right to be heard or speak up as it gives to anyone else present, irrespective of your gender, race, and geographical location.
Since now not only job opportunities but also learning are available online, it gives more space and chance for women to upskill themselves and learn more since now they are more in their comfort zone, so learning and working both can happen even when a new mother is nurturing and soothing her infant, which in an office work scenario would have been a tough choice of choosing only one.
Reference from a study done by Zapier reveals that 62% of women, as opposed to 53% of men, would value organisations giving remote work opportunities more, as many surveys even suggested that many female professionals found themselves more productive in remote work projects.

Conlusion

When so much has been said and done with our industries and workplace continuously evolving with time and technologies, tools like AI come to the rescue for all the working professionals. But when we are talking about the female workforce, I think AI can set the ground for level playing where remote work options spare the time and resources that can be efficiently utilised for equipping oneself with new technologies, knowledge, and tools like AI itself. It does possess many unknown threats regarding how and when but it mostly acts for the improvement of our industries and their workforce, especially in remote work scenarios where for any small-scale industry or a new entrepreneur, it can single-handedly provide virtual administrative assistance along with many such non-soft skills related tasks. Not only this but the same can be done by providing a much-needed skill job for someone sitting very far away but in dire need of a job. We understand that artificial intelligence is not human intelligence but derived from it having negligible emotional understanding; thus, I must emphasise that it can’t seriously extinct the job opportunities as feared by the masses, but it is going to push us humans to learn more, derive more and enhance the dual work synchronisation of a computer and human, leading us all to a more advanced and evasive future of technology and overall human development.

References

Role of International Law in resolving territorial disputes

By

Vanshika Kapoor

-

May 3, 2024

0

This article has been written by Akshaya J pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho.

This article has been edited and published by Shashwat Kaushik.

Table of Contents

Introduction

A territorial dispute is a conflict that arises between two or more states contesting ownership or sovereignty over a certain part of territory. It can arise for many reasons, such as economic interests, geopolitical aspirations, regional ethnic or cultural variance, and historical legacies that are mainly due to colonialism or imperialism. The disputes can be of various types, such are disputes over land boundaries or natural resources such as oil, water, gas, etc. There can also be disputes over islands or maritime zones. Understanding territorial disputes is essential for policymakers, diplomats, and citizens alike because addressing them requires a lot of legal expertise, political will, and cooperation among the parties who are part of the dispute and the ones who are resolving the dispute. In this article, the historical context, principles of international law, international legal framework, dispute resolution mechanisms and case studies of territorial disputes will be discussed in detail.

Historical context

Knowing the historical context of the territorial disputes is also a key feature in resolving them, as these issues have been there for many centuries or even a millennium. The era of colonialism and imperialism, which spanned from the 16th to the 20th centuries, dramatically changed the boundaries and control of territory, European powers split up the territories of Africa, Asia, and the Americas, mostly ignoring the ethnic, tribal, or cultural boundaries. The impact exists even today, as the process of decolonization began in the 20th century when newly independent states with arbitrary boundaries, which were often drawn by the colonial powers, emerged. Due to the expeditious nature of decolonization and also due to the infliction of artificial borders, many disputes have occurred in the Middle East, South Asia, and Africa.

Principles of international law

Principles of international law are the foundation on which relations between the states are governed. One of the key principles of international law is sovereignty, which states that states have supreme authority, which means the right to govern without any external intervention. The sovereign power is with the people, and it is exercised through their elected representatives.

Territorial integrity is a principle where the sovereign states can exercise their right to defend their territory from another state; that is, they cannot impose or promote border changes in other sovereign states through force. It collectively goes along with Article VIII- equal rights and the principle of self-determination.

The principle of non-intervention forbids states from interfering in the internal affairs of other states. Although intervention is possible in some cases, such as during humanitarian crises or with the permission of the United Nations Security Council, there is a constant debate as to when to determine whether interference in another nation’s internal affairs will lead to a violation of international law.

The principle, Pacta sunt servanda, means parties that signed the treaty must fulfil the treaty in good faith. It talks about the importance of sustaining the commitments made in the conventions and treaties.

Equality of states means that all states are equal under international law, irrespective of their size, population, or financial power. Protecting and promoting human rights is one of the fundamental principles of international law. The states are expected to opt to protect and respect the human rights of their citizens within their territory.

International legal framework

An international legal framework is a system of rules, regulations, treaties, and principles that govern the relations between sovereign states. A few key components of the international legal framework are treaties and agreements, which are formal documents mediated and ratified by the sovereign states and governed by international law. Treaties are known by different names, such as international conventions, treaties, final acts, charters, pacts, or memorandum of understanding (MOUs). Many issues are included while framing the legal framework, including trade, environment, human rights, disarmament, and territorial disputes. Treaties can be bilateral, which is between two sovereign states or multilateral, which are between multiple states. Customary international law refers to legal norms and principles that are developed over time by consistent state implementation. Article 38 of the statute of the International Court of Justice talks about customary international law, it states it as evidence of general practice accepted by law. It is mostly used as a secondary source of law in the court; therefore, it requires both state implementation and opino juris. Therefore for a norm to become a customary international law, the sovereign states must follow it consistently, either explicitly or implicitly, to show they have consented to it. International organisations play a major role in framing the international legal framework by providing a panel for discussions between the states. Examples of international organisations are the International Court of Justice (ICJ), the United Nations (UN), and the World Trade Organisation (WTO). There are also international courts and tribunals that provide a forum for adjudicating disputes between the conflicting states. The International Court of Justice (ICJ), most commonly referred to as the World Court, has jurisdiction to settle matters between sovereign states. Overall, an international legal framework exists for the regulation of states, for providing a forum to settle disputes between the states, and also to promote cooperation and peace with the states.

Dispute resolution mechanisms

Several mechanisms exist within the international legal framework. One of the common mechanisms used for resolving territorial disputes is adjudication, which involves raising the dispute to an international court or tribunal, which will, in turn, provide a legally binding decision. Examples of these are the International Court of Justice (ICJ) or regional courts such as the European Court of Justice, which will adjudicate territorial disputes for their respective jurisdictions.

Arbitration is also another formal process where both parties who are disputing have to submit the details of their dispute to a third party, who will be the arbitrator for the arbitration process. The discussion by the arbitration panel will be binding on both parties, Arbitration is usually preferred as it offers a more systematic and legalistic approach to dispute resolution. International organisations also act as a dispute resolution mechanism, for example, organisations such as the United Nations (UN), or regional bodies such as the Association of Southeast Asian Nations (ASEAN) have played a strategic role in resolving territorial disputes. They mainly provide a diplomatic pillar and a forum for negotiating or arranging peacekeeping missions to resolve territorial disputes and promote stability.

There is also Track II diplomacy, which includes unofficial, informal, and non-governmental talks between private citizens, such as experts, academics, or groups of individuals that are state actors, for brainstorming solutions and assisting the official actors to resolve the dispute and build trust between parties outside the formal diplomatic medium. Bilateral and multilateral treaties are also established mechanisms for resolving territorial disputes. Examples of these are joint development agreements, mutual recognition agreements, and demarcation treaties, which are used to address the particular details of territorial disputes.

Case studies

There are more than 150 ongoing territorial disputes in the world and complex legal, historical, and political factors play a role in resolving them.

A few examples of them are:

Sovereignty over Certain Frontier Land– Belgium and the Netherlands disputed over enclaves that crossed their border, claiming it based on treaties and effective control. The Court handed the enclaves to Belgium, citing that they were based on a boundary treaty and a commission’s work under it. It also included that the Netherlands did not harm Belgium’s sovereignty by having limited control over the enclave, as its actions that were questioned were local and also happened without Belgium being able to notice or react to them.

Temple of Preach Vihear (Cambodia/Thailand)– Cambodia wanted to claim its ownership of an ancient temple that was on Thailand’s side of the border as set by a treaty with France during Cambodia’s colonisation, although the temple is situated in a particular place where it can only be accessed through Thai territory. The border delineation under the treaty was done by French officials with the approval of Thailand.

Land, Island, and Maritime Frontier Dispute (El Salvador/Honduras, Nicaragua Intervening)-This case was brought to the chamber of the International Court of Justice by El Salvador and Honduras due to the 1980 General Treaty of Peace between them, Nicaragua mediated the case but only dealt with maritime issues.

Maritime Delimitation and Territorial Questions (Qatar v. Bahrain)– Qatar filed a case against Bahrain regarding a dispute over land on the Qatar Peninsula and two more sets of islands. The court gave the verdict, saying that the entire peninsula rightfully belonged to Qatar as long-standing settlements were dissolving Bahrain’s claims of control as acts of piracy. Concerning the islands, one set was given to Qatar and the other to Bahrain due to the uti possidetis principle, and claims based on other principles were dismissed.

Conclusion

Researching the challenges and diving into future perspectives for the resolution of territorial disputes is very important for protecting and promoting stability and peace in the international forum., A few key challenges are faced while resolving territorial disputes are Historical Grievances where many territorial disputes are firmly established in historical grievances, which makes it difficult to resolve them due to emotional attachments with the disputed territories. Other factors include geopolitical competition, which involves global powers aiming for influence and control over territories that are rich in resources and strategic. There is also a lack of trust, which is mutual distrust among the parties with territorial disputes, which will hamper the process of negotiation and cooperation. There needs to be more Diplomatic Engagement where more efforts and meaningful dialogues are exchanged; this is essential for resolving territorial disputes and also helps in building trust., Many proactive measures should also be taken to avoid future conflicts and a proper international mediation forum should be set up to facilitate peaceful resolution there also needs to be legal clarity, i.e., that legal frameworks should be clarified and ambiguities in the treaties should be resolved. By looking into these challenges and exploring future perspectives, the international community will be able to work towards promoting peace and stability in the global world.

iPleaders

Maina Singh vs. State of Rajasthan (1976)

Introduction

Details of Maina Singh vs. State of Rajasthan (1976)

Facts of Maina Singh vs. State of Rajasthan (1976)

Judgement of the Trial Court

Appeal to the Rajasthan High Court

Issues raised in Maina Singh vs. State of Rajasthan (1976)

Arguments of the parties

Contentions by the Appellant

Contentions by the Respondent

Laws discussed in Maina Singh vs. State of Rajasthan (1976)

Section 34 IPC, 1860

Ingredients under Section 34

Not a separate offence by itself

Common intention does not mean same intention

Participation in the act

Section 149 IPC, 1860

Scope of Section 149 IPC

Test to determine common object

Difference between section 34 and section 149 of the IPC, 1860

Section 302 IPC, 1860

Section 326 IPC, 1860

Meaning of grievous hurt

Exceptions under section 335

Judgement in Maina Singh vs. State of Rajasthan (1976)

Rationale of the case

In the absence of evidence to suggest the involvement of any other ‘unnamed’ person, the accused alone cannot be convicted under Section 34/149 of IPC, 1860

If the other co-accused are acquitted and the evidence does not suggest the presence of any other unnamed person, one person alone cannot be charged under Section 34 of the IPC, 1860.

Conviction for grievous hurt

Conviction and Sentence of the Appellant after the appeal

Analysis of Maina Singh vs. State of Rajasthan (1976)

Conclusion

Frequently Asked Questions (FAQs)

What is the difference between common intention and common object?

When can “common intention” be formed? Is there any specified time gap required for the formation of a common intention under Section 34 of IPC, 1860?

Can common intention be implied based on the accused’s presence near the scene of the crime?

Can a charge under Section 149 for unlawful assembly be substituted with Section 34 for common intention, if common object is not proved?

Can there be any vicarious/constructive liability in instances of free fight?

References

Role of emotion in content marketing : building connections through writing

Introduction

What is emotional marketing and how does it matter

The power of emotions

Psychology behind emotional marketing

Self-esteem

Authority and Experts /Reviews and Testimonials

Happiness

Sadness

Fear

Anger and disgust

Storytelling

Impact of emotional marketing on consumer behaviour

Ethical considerations in emotional marketing

Conclusion

References

Understanding copyright issues entailing deepfakes in India

Introduction

Brief history of AI, machine learning and copyright

Artificial intelligence, machine learning, deepfake, copyright, infringement

Artificial intelligence

Machine learning

Deep fake

Copyright

Infringement

Deep fake ramifications around copyright and authorship

Privacy issues: data protection and the right to privacy are correlated

Ethical issues

Intermediaries responsibility

Copyright to AI generated work

Deep fakes and copyright laws in India

Conclusion

References

Miss Mohini Jain vs. State of Karnataka and Ors. (1992)

Introduction

Details of Miss Mohini Jain vs. State of Karnataka and Ors. (1992)

Case name

Case no.

Equivalent Citations

Laws and Statutes involved