From the early morning to late night, i.e., from the time we get up from bed until we go to bed at night, we enter into a number of transactions, and these transactions directly or indirectly, expressly or implicitly, result in contracts. For instance, for shelter, we enter into a contract with the seller or builder to purchase an independent house on rent or lease. Similarly, for all our needs like medical, food, education, entertainment, etc., it can be oral, written, expressed, or implied. An agreement entered into between two or more persons or parties for a lawful consideration,subject to certain terms and conditions, is what is defined as a contract. Let us understand it more with an illustration. Consider ‘A’ and ‘B’, who entered into an agreement wherein ‘A’ guaranteed ‘B’ that he would sell his house for Rs. 50,000/- and ‘B’ agreed to buy it for that sum. It is an agreement between both parties. This agreement is enforceable in a court of law, and hence, it is a contract.
In India, the primary legislation governing Indian contract law is the Indian Contract Act of 1872, which established the legal framework for contracts in the country. The English Common Law Principles serve as the foundation for the act. It is relevant to every state in India. It establishes the conditions under which a contract’s parties’ promises are enforced. A contract is defined as an agreement under the Indian Contract Act of 1872 that is enforceable by law under Section 2(h). Sections 03 – 75 deal with the general principles. But in this article, we will be talking more about Section 65, which mostly deals with the doctrine of restitution. For example,what happens, though, if, according to the terms of the contract, person ‘B’ sends money to person ‘A’, but it ends up going to person ‘C’, who then claims it as his own and refuses to give it back to person ‘A’, even though he is the one who is supposed to receive it. The doctrine of restitution is applied in such cases.
The doctrine of restitution
A simple definition would be ensuring that something that belongs to a party that has been wrongfully denied a right to receive it is given to the party that was rightfully entitled to it. Restitution literally means ‘Restoration’, the restoration of something lost or stolen to its proper owner. In the Indian Contract Act of 1872, Section 65 deals with the principle of restitution.
Section 65- This section clearly states that anyone who has benefited from an agreement or contract that is later shown to be invalid must return the benefit to the source of the agreement or contract or pay the recipient compensation. A contract that is not legally enforceable is deemed void, as per the Indian Contract Act of 1872. For instance, a contract with a minor.
Key elements of restitution
Remedying injustice: Restitution seeks to correct unjust enrichment or deprivation by returning the benefits or property to the rightful party.
Unjust enrichment: The principle applies when one party has gained an unfair advantage or benefit at the expense of another.
Restoration: The primary goal of restitution is to restore the aggrieved party to their original position, as if the wrongful act had never occurred.
Restitution in Contract Law
In contract law, the principle of restitution is often invoked in cases of breach of contract or misrepresentation. If a party fails to fulfil their contractual obligations or provides false information, the innocent party may seek restitution to recover any losses or benefits gained by the breaching party.
Example: If a buyer pays for goods that are never delivered, the buyer can claim restitution to recover the purchase price.
Restitution in Property Law
Restitution plays a significant role in property law, particularly in cases involving the recovery of stolen or wrongfully acquired property. The rightful owner can seek restitution to regain possession of their property.
Example: If a person’s car is stolen and later sold to an unsuspecting buyer, the true owner can claim restitution to recover the vehicle.
Restitution in Tort Law
In tort law, restitution can be awarded as a remedy for certain types of wrongs, such as conversion (unauthorised possession or use of another’s property) or unjust enrichment.
Example: If someone converts another person’s property for their own use, the court may order restitution to restore the property or its equivalent value to the rightful owner.
Restitution is a fundamental legal principle that promotes fairness and justice by ensuring that parties are not unjustly enriched at the expense of others. It provides a remedy for those who have suffered a loss or have been deprived of their rightful property or benefits.
We can also find the Principle of Restitution in Section 144 of the Civil Procedure Code, which explains that “the court’s responsibility is to put the parties back in the same position that they would have been in, except for the decree or the portion that has been changed or overturned.” Section 144 of the Civil Procedure Code only includes a portion of the general restitution law.
Conditions to the doctrine of restitution
A legally binding agreement between the parties
A legally binding agreement that is enforceable by the Contract Act of 1872 qualifies as a valid contract. A contract must be enforceable by law in order to be deemed legal. The agreement should contain all the necessary components. In order for a contract to be considered enforceable, certain conditions need to be fulfilled: offer, acceptance, consideration, lawfulness, capacity, and consent.
There must be consideration in the contract
Consideration is something of value exchanged between the parties to a contract. It can be money, work performance, property, or many other things. It means ‘something in return’. For a contract to be valid and enforceable, there must be a lawful consideration.
Both parties should be competent to enter into a contract
A person is competent to enter into a contract under Section 11 of the Indian Contract Act if they meet the following requirements: they should be a major and not a minor, which means they must be 18 years of age or older; they should have a sound mind, which means they should not be insane or crazy, which makes a person unable to take serious decisions; and lastly, they should be qualified to enter into a contract as per the current law.
Due to unforeseen circumstances, one of the contract’s parties either failed to execute the agreement or was unable to do so
This is also called a contingent contract. Contracts that are subject to the possibility of unforeseen future events are not legally enforceable until such events have taken place. If, for any reason, such a contract becomes impossible, it is void.
The party that has paid any consideration in the form of an advance is entitled to recover the same from the other party
The paying party may recover from the other party any advance consideration that was paid. Both parties participating in the agreement should have acknowledged it in the contract and given their consent.
Exception to the doctrine of restitution
Restitution under contract law does not apply to certain kinds of contracts; they are listed below:
Where a contract is known to be void
A void contract is one that has no legal standing and is either void from the beginning or void later on. The Indian Contract Act, 1872, states in Section 2(g) that “an agreement not enforceable by law is said to be void.” For instance, ‘A’ enters into an agreement with ‘B’ where ‘A’ gives money to ‘B’ for the murder of ‘C’. ‘B’ takes the money but does not kill the ‘C’. Now ‘A’ can not file a suit against ‘B’ for breaching the contract because the object of the contract was unlawful. Which makes it void ab initio (void from the beginning).
Where a contract has been entered into between incompetent persons.
People who are not of sound mind are considered incompetent to contract under the Indian Contract Act. Under Indian law, a person of unsound mind cannot enter into a contract; this is in contrast to English law, which does not recognise mental incompetence as a defence. A contract made by a person of unsound mind is void in India.
Where the party is required to give some earnest money as security and later defaults
This clause addresses circumstances such as the payment of application fees for housing schemes. Now , by rejecting the idea of restitution, the individual will not be able to claim his earlier earnest money and will lose his application money as well.
An important judgement to the doctrine of restitution
The defendant in Sadashiv Panda vs. Prajapati Panda and Anr. (2017) and others consented to sell the plaintiff his land in exchange for a payment of Rs. 5,000. The plaintiff gave the defendant a payment advance of Rs. 2,600 and instructed him to complete the sale deed by giving the plaintiff possession of the property. The plaintiff would then reimburse the defendant with the remaining amount of Rs. 2,400. Meanwhile, the defendant, with the remaining amount of Rs. 2,600, declined to give the plaintiff ownership rights since the defendant had already sold the property to a different buyer. In accordance with Section 65 of the Indian Contract Act of 1872, the plaintiff brought legal action against the defendant. Since plaintiffs have given an advance of Rs. 2,600 to the defendant, the court decided that this case falls under the doctrine of restitution because there was a sale deed between the two parties. Because it violates the terms of the contract, the defendant’s sale of the property to a third party was unlawful. The plaintiff was entitled to receive money back from the defendant.
In Mohori Bibee vs. Dharmodas Ghose (1903), in order to obtain a loan of Rs. 20,000, the plaintiff, who was a minor, mortgaged his home in favour of the defendant, who is a moneylender. He was in fact given an advance on some of this sum. The lawyer representing the moneylender learned that the plaintiff was a minor while evaluating the suggested advance. The child then filed this lawsuit, claiming that since he was not yet of legal age when he signed the mortgage, it should be revoked.
In the case ofLeslie Ltd. vs. Sheill (1903), a minor, misled a moneylender about his age by claiming to have reached the age of majority and having obtained a certain sum of money. This particular case shares similarities with the well-known ruling of Mohori Bibee vs. Dharmodas Ghose, which established important principles regarding the legal capacity of minors in contractual matters. In both cases, the common theme is the inability of minors to engage in legally binding contracts due to their status as minors. This incapacity renders them exempt from any legal obligations or liabilities arising from such contracts.
The courts in both Leslie Ltd. vs. Sheill and Mohori Bibee vs. Dharmodas Ghose emphasised the fundamental principle that minors, due to their immature judgement and lack of experience, are deemed incapable of understanding and assuming the full legal implications of contractual agreements. Consequently, they are legally protected from the potentially detrimental consequences of entering into contracts that may not be in their best interests.
These rulings serve as a reminder of the importance of safeguarding the welfare and rights of minors in financial transactions and contractual matters. By recognising the vulnerability of minors and their limited legal capacity, the courts ensure that they are not held responsible for obligations they may not fully comprehend or be able to fulfil.
In a recent ruling in Loop Telecom and Trading Limited vs. Union of India and Another, the Supreme Court refused to return money that the appellant had paid under a null and void contract. The Court relied on the theory of “in pari delicto” and reaffirmed that courts shall not assist a party who has paid the money or turned over the property in pursuance of an illegal or immoral contract, while rejecting the claim for restitution under Section 65 of the Indian Contract Act, 1872. Because this case was not a valid contract based on a lawful object, it does not fully satisfy the requirements for the restitution of the contract.
Conclusion
The aforementioned cases and judgements have demonstrated the depth to which the doctrine of restitution in contract law is embedded in the Indian legal system. In a civilised society where there is a chance for unfair profit and gain, we can fall into these kinds of problems by deceiving others or even by being ignorant of the remedies that are accessible to us. In these cases, the doctrine of restitution has proven to be a crucial remedy. We now understand certain requirements and the exclusions from the restitution doctrine. The doctrine of restitution is also present in civil law, tort law, and criminal law; for example, Section 144 of the Civil Procedure Code.
This article is written by Syed Owais Khadri. It attempts to provide a detailed understanding of Article 24 of the Constitution which prohibits child labour. The article covers all aspects of child labour and Article 24. It covers the legislations, judgements delivered, schemes and projects undertaken to give effect to the Constitutional provision. It also sheds light upon the international commitment of India on the subject of child labour.
Table of Contents
Introduction
A lot of us in recent times have been coming across the news about the exploitation of house help in the country, especially the female and the young house help. Numerous children and young women due to various obvious reasons, poverty being one among them, are usually forced to work at various places such as factories and as maids in households. This employment or work often comes with a lot of exploitation which goes unnoticed and unaddressed most of the time. Although there is a fundamental right guaranteed against exploitation, lack of awareness along with lack of implementation and resources is one of the major reasons why numerous individuals are exploited for labour and other purposes.
Fundamental Rights are an important facet of the Indian Constitution. They are also a part of the basic structure of the Constitution as it has been held in Kesavananda Bharathi v. State of Kerala (1973).Part III of the Constitution which consists of around 27 Articles guarantees six primary Fundamental Rights under various heads. These rights include the Right to Equality (Article 14), the Right to freedom (Article 19), the Right against exploitation (Articles 23 and 24), the Right to freedom of Religion (Articles 25 – 28), Cultural and Educational Rights (Articles 29 and 30) and the Right to Constitutional Remedies (Article 32). All of these rights are of great importance and hold significant value in ensuring the protection of civil liberties.
The Right against exploitation is an important fundamental right guaranteed by the Constitution which not only ensures the protection of civil liberties but also protects from the exploitation of individuals for various purposes such as trafficking, forced labour etc. The Right against exploitation is discussed under Articles 23 and 24 of the Constitution. Article 23 prohibits the practices of human trafficking and forced labour and Article 24 provides for the prohibition of child labour. This article deals with child labour in India in light of Article 24 of the Constitution. The article delves into the policies formulated in furtherance of the fundamental right guaranteed under the aforementioned Article and various other steps that have been taken to eliminate child labour. The article also looks into the various rulings of the High Courts and the Apex Court.
Child Labour in India
Child labour has been one of the most concerning social issues in India for a very long time but it has now been reduced to a great extent due to the efforts and measures taken by the various organs of the government. The figure of children engaged in child labour has been reduced to 43.5 lakh in the 2011 census from 1.2 crore in the 2001 census which is a remarkable achievement for the nation. However, we still have a long way to go and become a country where we have zero tolerance for child labour.
The first committee to address the issue of child labour was constituted in 1979 which was called the Gurupadaswamy committee. The committee examined the issue in detail and made various recommendations accordingly. The committee highlighted poverty as one of the main reasons for the rampant child labour across the country. As a result of recommendations made by this committee, the first legislation on child labour, the Child Labour (Prohibition and Regulation) Act was enacted in 1986. Since then numerous measures have been taken to tackle the issue which have been significantly successful. The Supreme Court of India in M.C. Mehta v. State of Tamil Nadu (1996)noted the enormity of the issue of child labour in the country and observed that the issue had to be dealt in broad manner as a national issue.
Meaning of exploitation
Exploitation means taking unjust or unfair advantage of resources or labour to a large extent. It can be also termed as misuse.
Merriam-Webster defines exploitation as “an act or instance of exploiting” and ‘exploiting’ according to the dictionary refers to “to make use of meanly or unfairly for one’s own advantage”. Therefore summing up the definition, the term exploitation can be defined as the act or instance of making unfair use for one’s advantage.
Collins dictionary defines exploitation as “selfish utilisation”.
The Cambridge Dictionary defines exploitation as “the act of using someone unfairly for your own advantage”.
The Oxford Learner’s Dictionary defines exploitation as “a situation in which someone treats someone else in an unfair way, especially in order to make money from their work”.
Legal Definition
According to Explanation 1 of Section 370 of the Indian Penal Code, 1860, the term exploitation includes “any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs.” Although the provision talks about exploitation in the context of the trafficking of a person, the general meaning of exploitation under Articles 23 and 24 is the same.
The legal framework in furtherance of Article 24
Article 24 of the Indian Constitution is a child labour prohibiting provision which states that no child below 14 years of age shall be employed in any factory, mine or any hazardous occupation. This particular provision was assumed to be a right that would hardly be effective in the absence of legislation prohibiting and penalising its violation. This general assumption and understanding was changed in the case of the People’s Union for Democratic Rights and Ors. v. Union of Indiaand Ors (1982). The Apex Court in this case held that Article 24 must operate proprio vigore, which means that the provision must operate independently by itself, even in the absence of any legislation in furtherance of it.
Although the Apex Court clarified the independent operation of the provision in the above-mentioned case, it is necessary to acknowledge the fact that there are other constitutional provisions accompanying or aiding Article 24, either expressly or impliedly. In addition to the constitutional provisions, other statutory provisions and separate legislation are also available that prohibit and penalise child labour and is in furtherance of Article 24.
Constitutional Provisions
As mentioned earlier, there are few other constitutional provisions that expressly or impliedly aid Article 24 of the Constitution. The directive principles of state policy which are mentioned in Part IV of the Constitution, are a few such provisions that complement the fundamental rights and therefore can be linked to it. Some of the provisions which aid or accompany the right against exploitation or prohibition of child labour are as follows.
Article 39
Article 39 of the Constitution which directs the state to frame policies securing economic welfare of the citizens and providing sufficient sources of subsistence to the people is a significant provision that aids or accompanies Article 24. The provision under Clauses (e) and (f) expressly discusses the prevention of exploitation of children and their protection.
Clause (e) of the Article directs the state to formulate a policy ensuring the prevention of forced labour of every citizen including children of tender age. It provides for the prevention of abuse of such children.
Clause (f) of the Article explicitly mentions the protection of childhood and youth against exploitation and moral and material abandonment.
Articles 21, 21A and 45
Article 21A can be considered as a Constitutional provision that impliedly or indirectly goes with Article 24 of the Constitution. Article 21A recognises the right to education as a fundamental right. According to this Article, the state shall provide for free and compulsory education of children aged 6 to 14 years.
Article 45 provides for childhood care and education to children below 6 years of age. This provision was amended in 2002 with the introduction of Article 21A. The provision before the amendment was similar to Article 21A as it provided for education to children until the completion of 14 years of age.
Therefore, Articles 21A and 45 can be collectively understood as indirectly calling for the prohibition of child labour by promoting the education of children.
Similarly, Article 21 can also be construed as an aiding provision to Article 24 due to its wide scope which has been enlarging over the past few decades. It is important to note that the right to education which was provided under Article 21A, before its introduction in 2002, was recognised as a part of the Right to life under Article 21 by the Supreme Court in Unnikrishnan, J.P. v. State of Andhra Pradesh (1993). Therefore Article 21 is a significant provision that can be considered as an aiding provision to Article 24.
Statutory Provisions in pursuance of Article 24 of the Indian Constitution
The fundamental right of children against employment guaranteed under Article 24 of the Constitution is assisted by various statutory provisions that have been enacted by the legislature to give effect to the Constitutional provision. The Parliament has in fact enacted a separate legislation particularly dealing with the issue of Child labour. In addition to the specific legislation on child labour, various other provisions from different legislations such as the Factories Act, 1948, Mines Act, 1952 etc., prohibit the employment of children. Besides, A National policy has been formulated by the central government which consists of an action plan to tackle the issue of child labour in India.
The Child and Adolescent Labour (Prohibition and Regulation) Act, 1986
The Child and Adolescent Labour (Prohibition and Regulation) Act, 1986 is the most significant statute in the direction of prohibition of child labour which was enacted based on the recommendations made by the Gurupadaswamy Committee. It is the primary legislation that is enacted to prohibit and penalise child labour and exploitation of children. Section 3 of this Act completely prohibits the exploitation and employment of children below 14 years of age and restricts the employment of children between 14 to 18 years of age in certain hazardous occupations. Some of the important characteristics of the Act are as follows.
One of the most important provisions of this Act is that it clearly defines an adolescent and a child under Sections 2(i) and 2(ii) respectively and therefore differentiates between the both. Section 2(i) defines adolescent as any person above 14 years and below 18 years of age whereas Section 2(ii) defines the term child as any person who is below 14 years of age.
Section 3 prohibits employment of children completely with only two exceptions and Section 3A prohibits employment of an adolescent in hazardous occupations. The two exceptions laid down by Section 3 include non-hazardous family enterprises and the music industry and industry of other art forms and sports except circus.
The Act penalises the exploitation of children and the practice of child labour. Section 14 of this Act imposes penalties for violation of Sections 3 and 3A of the Act. It provides for imprisonment of 6 months to two years or a fine of twenty to fifty thousand rupees or both in case of violating either of the two provisions mentioned above. It also provides for imprisonment of 1 year to 3 years for repeat offenders.
It provides for health and safety measures including weekly rest that must be ensured while employing children and adolescents in permitted occupations.
The legislation under Section 14B establishes a fund for the rehabilitation and welfare of the children rescued from child labour.
Furthermore, the statute mandates the maintenance and preservation of records containing information regarding the children and adolescents employed along with the nature of work, working hours etc under Section 11. The statute also provides for the appointment of inspectors under Section 17 who are empowered to inspect the premises of occupations and to examine the records under Section 11.
National Policy on Child Labour
The National Policy on Child Labour was formulated for the first time in August 1987 after the enactment of the Child and Adolescent Labour (Prohibition and Regulation) Act of 1986. The policy contains an action plan for tackling child labour in the country. The formulated policy consists of 3 main aspects which include the following.
A legislative action plan for the strict enforcement of the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986 to prohibit the employment of children in various occupations and to regulate the working conditions for children who are employable under the Act.
Constitution of a core group by the Ministry of Labour and Employment for the convergence of various programmes and schemes formulated by the government for the welfare of the children and the upliftment of their families. The Convergence strategy includes the involvement of various ministries with different roles.
Ministry of Railways for spreading awareness and restricting the trafficking of children.
Project-based plan of action for the welfare of children in areas of high concentration of child labour. The National Child Labour Project (NCLP) Scheme is one such project launched by the government.
Both, Central as well as state governments by adopting cooperative federalism, have been taking significant steps and measures to tackle the issue of child labour. While the state government carries out the task of enforcing the Child and Adolescent Labour (Prohibition and Regulation) Act by conducting inspections and raids, the Central government monitors the enforcement of the Act and aids the state government with the help of the core group of convergence.
Other statutory provisions
In addition to separate legislation enacted for the prohibition of child labour, there are numerous provisions across various legislations that prohibit the employment and exploitation of children in certain hazardous and non-hazardous occupations and businesses. A few of such provisions are as follows.
Section 3(a) of The Apprentices Act, 1961 states that a person shall not be qualified as an apprentice unless is not less than 14 years of age for designated trades and not less than 18 years of age for hazardous industries.
Besides these provisions in the legislations enacted by the Union Legislature, several other state legislations also contain provisions prohibiting child labour.
The first and foremost international document concerning child rights, or human rights in general is the Universal Declaration of Human Rights (UDHR) that was adopted in 1948 with the aim of protection of human rights across the globe. Although the document does not expressly mention the rights of children against exploitation or prohibition of child labour, the significance of this instrument cannot be disregarded. It is because the Universal Declaration of Human Rights serves as a guiding light in respect of human rights. As a consequence of UDHR or in furtherance to it, several other international treaties have been adopted that focus only on particular groups of people such as women, children, refugees etc. Some of the provisions of UDHR which discuss child rights include Articles 4, 25 and 26.
Article 4 does not particularly focus on children but provides for the right of every individual against exploitation. It prohibits slavery, slave trade or servitude.
Article 25(2) provides that special care and assistance should be given to childhood and motherhood. It states that every child must enjoy the same social protection.
Article 26 is similar to Articles 21A and 45 of the Indian Constitution. It recognises every individual’s right to education. It states that Education must be free and compulsory at least till the elementary and fundamental stages.
Therefore, though the Universal Declaration of Human Rights does not particularly focus on child rights or the prohibition of child labour, it lays down a foundation for the adoption of other treaties and agreements on the protection of human rights for particular groups.
International Convention on the Rights of the Child, 1989
As mentioned above, The Universal Declaration of Human Rights led the way for the adoption of other international conventions on the protection of the rights of particular groups. The International Convention on the Rights of the Child is one such convention that has been adopted in furtherance of UDHR for the protection of the rights of children. The International Convention on the Rights of the Child (ICRC) is the first international document that came into existence, particularly for the protection of child rights. It was adopted on 20th November 1989 and it came into force on 2nd September 1990. The Convention in its entirety focuses on the protection of child rights and provides for the same through various provisions of it. Different provisions provide for the protection of different rights of the child. Some of the significant provisions of the Convention are as follows.
Article 3 of the Convention states that the best interests of children should be of primary consideration in all actions concerning children.
Article 19 of the Convention directs the state parties to take appropriate measures for protecting children against all forms of violence, abuse, negligence, maltreatment or exploitation.
Article 28 of the Convention is similar to Article 26 of the Universal Declaration of Human Rights and Articles 21A and 45 of the Indian Constitution. It provides for children’s right to education. The Article directs the state parties to recognise the right of the child to education and to make primary education compulsory and free to all.
Article 32 of the Convention explicitly focuses upon the child’s right against exploitation and prohibition of child labour. The provision directs the state parties to recognise the right of the child to be protected from economic exploitation and from engaging in any work that may harm the child’s overall growth and education and is hazardous.
Article 34 requires the States to ensure the protection of children from all forms of sexual exploitation and abuse.
Article 35 calls for appropriate national and international steps to prevent the trafficking of children.
Article 36 provides for the protection of children from all other forms of exploitation which impact their welfare.
Article 39 of the Convention calls for appropriate measures to ensure the physical and psychological recovery of a child victim of any form of abuse or exploitation.
The Convention is an important and substantial international document on the subject of child rights which provides for some of the significant rights of children. It recognises various rights of children against all forms of exploitation and calls for measures to ensure the protection of the child’s rights and their proper overall growth and development.
Conventions of the International Labour Organisation (ILO)
The two conventions adopted by the International Labour Organisation (ILO) are the most concrete and significant international documents that focus solely on the subject of child labour and the employment of children. The two conventions adopted are namely
India is the 170th member nation of the ILO to agree to Convention No. 138 which directs the state parties to decide a minimum age for employment of children or young persons and It has also agreed to Convention No. 182 which calls for the elimination of worst forms of child labour.
The Minimum Age Convention, 1973
The Minimum Age Convention, Convention No. 138 was adopted by the International Labour Organisation in Geneva in 1973. The Convention lays down the minimum age for children to be employed. The Convention segregates different age groups and provides for limited employment of children depending upon the age. Some of the important provisions of the Convention are as follows.
Articles 1 and 2 of the Convention prohibit forced child labour and give the general principle that the minimum age for employment shall not be less than the age of 15 or that of compulsory schooling or primary education.
Article 3 of the Convention lays down 18 years as the minimum for employment of any work which is likely to risk the health or safety of any young person.
Article 6 states that this convention does not apply to work done by children in school for educational or technical learning. It further allows the employment of children above 14 years of age following the conditions laid down by the competent authority.
Article 7 of the Convention permits the employment of children belonging to 13 to 15 years of age for light work which does not in any way harm the health and development of the child and affect the education of the child.
The Convention provides a general idea of the minimum age that should be taken into consideration for the employment of children. It is the first and most fundamental instrument on child labour as it specifically focuses upon that particular subject and It is also the first and foremost international instrument adopted for children as it came into existence before the adoption of the International Convention on the Rights of the Child, 1989.
The Worst Forms of Child Labour Convention, 1999
Convention No. 182 adopted by the International Labour Organisation for the elimination of the worst forms of child labour in 1999 is the second most significant Convention on the subject of child labour after the one adopted on minimum age in 1973. The Preamble of the Convention states that there is a need for a new instrument for the prohibition and elimination of the worst forms of child labour that would serve as a complement to the Minimum Age Convention adopted in 1973 which remains a fundamental instrument on child labour. Article 2 of the Convention states that any person below 18 years of age would be considered a child. As the preamble suggests, this instrument focuses on the prohibition and elimination of the worst forms of child labour. Some of the key provisions of the Convention are as follows.
Article 3 of the Convention says that the worst forms of child labour include various acts such as slavery or servitude, trafficking, forced or compulsory labour, use of children for illegal activities such as drug production and trafficking, child pornography or prostitution or any work that is likely to cause harm to the health, safety or morals of children.
Articles 6 and 7 of the Convention direct the state parties to take appropriate measures to eliminate the worst forms of child labour as the priority. Article 7 further states that the member states must also focus on rescuing the children, providing free education etc.
The Worst Forms of Child Labour Convention is an important document as is the primary instrument that expressly calls for the abolition and elimination of child labour. The fact that the instrument is binding on the member states makes it more significant as it allows the state parties to take necessary action without any unjustifiable delay.
Both the Conventions adopted by the International Labour Organisation are remarkable instruments that recognise the need for the protection of children from exploitation and the elimination of the evil practice of child labour.
The Minimum Age (Industry) Convention (Revised), 1937
Article 2 of the Convention states that children below 15 years of age shall not be employed in any public or private industrial undertaking.
Important case laws
The Indian legal arena has witnessed several reforms recognising the importance of protection of human rights from time to time and the courts have played a crucial role in that process. Likewise, the Indian courts have played a crucial role in the protection of children from exploitation and forced child labour. The judiciary has from time to time highlighted the magnitude of child labour and its causes and impacts. Some of the important judgements of the courts are as follows.
People’s Union for Democratic Rights and Ors. v. Union of India and Ors, 1982 (Asiad Workers’ Case)
The Asiad Workers’ case was a PIL (Public Interest Litigation) before the Hon’ble Supreme Court of India for the enforcement of various provisions of labour laws concerning the workmen employed for the construction of various projects during the Asian Games.
A brief outline of the Asiad Workers’ case
India was hosting the Asian Games that take place periodically in different parts of Asia and therefore several construction projects were undertaken by the Government of India which included the construction of flyovers, swimming pools, hotels, Asian Games village complex etc. The construction projects were allotted to various authorities such as the Delhi Development Authority, Delhi Administration and the New Delhi Municipal Committee.
The Contractors subsequently hired workers/labourers through jamadars. The Jamadars brought the workers from various parts of the country such as Uttar Pradesh, Rajasthan and Orissa and got them employed under the contracts.
There were violations of several labour laws including the Minimum Wages Act, 1948 and the Equal Remuneration Act, 1976. There was also a violation of Article 24 of the Constitution as the employers had employed children below 14 years of age for the construction work.
The Petitioners alleged that there was severe violation of various laws and the workers were not even provided with proper living conditions, medical and other facilities. They pointed out that the violations resulted in the exploitation of workers employed for the construction work.
The Petitioners pointed out the aforementioned violations relying upon the report of a team of three social scientists and who filed a PIL before the Hon’ble Supreme Court for the enforcement of labour laws.
Key legal issues
Whether there was a violation of Article 24 of the Constitution and other provisions of various labour laws?
Judgement
The Hon’ble Supreme Court, relying upon the affidavit filed by the Union Government, observed a violation of several provisions of various labour laws by private individuals, i.e., the contractors but not by the state. The Court observed that whenever any work is carried out by the government either departmentally or through contractors, the governmental authorities including the public sector corporations must take care that the provisions of the labour laws are strictly followed without any violation.
The Court about the violation of the Employment of Children Act, 1938, upheld the respondent’s contention that construction activity is unfortunately not included under the schedule of the Act. But the Court held that the omission must be set right by the government immediately. The Court further held that construction work is a hazardous occupation and therefore the employment of children below 14 years of age must be prohibited. The Court observed that it would align with provisions of Convention 59 of the ILO which has been ratified by India.
Furthermore, the Court held that apart from the aforementioned International Convention, Article 24 of the Indian Constitution provides that no child below 14 years of age shall be employed in any hazardous occupation. The court held that Article 24 as a constitutional provision must operate proprio vigore (independently) even in the absence of any appropriate legislation prohibiting the employment of children in construction work which is certainly a hazardous occupation.
Bandhua Mukti Morcha v. Union of India, 1997
This case is a PIL filed by an NGO before the Hon’ble Supreme Court seeking to issue a writ of mandamus directing the state government to stop child labour in the carpet industry in the state of Uttar Pradesh.
Brief facts
The Petitioners through the instant PIL contend that the employment of children below 14 years of age in any industry is violative of Article 24 of the Constitution.
The petitioners contend that the carpet weavers across the state, especially in Varanasi, Mirzapur, Jaunpur and Allahabad have employed children in the carpet industry resulting in a violation of the fundamental right of the children guaranteed under Article 24 of the Constitution.
The Court appointed a committee in August 1991 to visit various places across the state, particularly those mentioned by the petitioners to find out whether the children were being exploited. The committee submitted its report in November 1991.
The report highlighted the large-scale exploitation to which the children were subjected and it said that the children were wrongfully forced to work as bonded labour in the carpet industry against their wishes.
The findings of the report said that children ranging from the age of 5 to 12 years were kidnapped from Bihar and were made to work in the carpet industry in Uttar Pradesh.
The report highlighted that 42% of the workforce in 882 carpet weaving looms was of children below 14 years of age. The report further said that 95% of those children belonged to the tender age of 6 to 11 years.
Furthermore, the committee found that the children were made to work all day and were treated as slaves. The report also highlighted that the children were subjected to physical torture which was evident by the marks of violence.
Issues
Whether the employment of children below 14 years of age is violative of Article 24 of the Constitution?
Whether the omission on the part of the state to provide the facilities and opportunities to the children is a deprivation of constitutional mandates provided under Articles 45, 39(e) and (f), 21 and 14?
Judgement
The Hon’ble Supreme Court observed that the exploitation of childhood is detrimental to the democracy as well as the social stability, unity and integrity of the nation. The Court in this judgement stressed the causes of child labour and the impact of it on a child’s growth and development. The Court referred to various provisions of different international instruments on human and child rights, child labour etc., including the Universal Declaration of Human Rights and the International Convention on the Rights of the Child. It also highlighted the widened scope of Article 21 which has been expanded to include various rights as fundamental rights including the right to education, right to health etc.
The Court held that it is binding upon the state to provide all the facilities and opportunities provided under various Articles of the Constitution; particularly under Article 39(e) and (f). The Court observed that a total ban on child labour would be unrealistic and counterproductive. Therefore, it has to be eliminated through well-planned development, poverty alleviation and employment of children. It further observed that constructive and realistic steps and actions are necessary to be taken to ensure that the children from poor, marginalised and weaker sections of society are allowed to reform and develop their personalities educationally, intellectually and culturally along with the enjoyment of leisure.
The Court held that child labour has to be progressively banned while evolving simultaneous alternatives such as providing education, health facilities, nutrient food, shelter and other means of livelihood with self-respect and dignity of person. The court affirmed the observations made in M.C. Mehta v. State of Tamil Nadu (1996).
M.C. Mehta v. State of Tamil Nadu, 1996 (Child labour matter)
The instant case is a petition before the Hon’ble Supreme Court by Mr. M.C. Mehta, a lawyer after the fundamental right of children under Article 24 of the Constitution was violated as children were employed in the cracker and firework industry in Sivakasi.
Brief facts
The Petitioner, who is a lawyer, filed a petition before the Hon’ble Supreme Court under Article 32 of the Constitution after noticing that the fundamental right of the children guaranteed by Article 24 of the Constitution was violated.
The petition was then disposed of in 1990 by the Court by giving certain directions to improve the quality of life of around 2941 children employed in the firework factories, while it had also noted that it is a hazardous industry giving rise to accidents including fatal cases. It had also constituted a committee to oversee the directions given by the court.
The Court subsequently took suo-motu cognisance by itself in the present matter when news of an unfortunate accident in one of the factories in Sivakasi was published.
The Court was informed by the state government that the deceased was a 39-year-old person.
The Court directed the state government regarding the payment of compensation and it constituted an advocates’ commission to visit the area and prepare a comprehensive report. The commission submitted the report in November 1991.
Judgement
The Hon’ble Supreme Court in the instant case observed that the issue of child labour has to be dealt with in a broad manner as a national problem but not as limited only to any particular region such as Sivakasi. The Court observed that poverty is one of the basic causes of child labour.
The Court first noted the Constitutional provisions that may be relevant to the issue of child labour or may be considered as a part of the solution to the issue. The Court noted Articles 24, 39(e) and (f), 41, 45 and 47 of the Constitution. It observed that Article 24 is the fundamental right and even Article 45 has been given great significance by the court by ruling it as a fundamental right in the Unnikrishnan, J.P. v. State of Andhra Pradesh (1993) judgement. The Court further noted Article 37 to observe that even though the other provisions are part of directive principles of state policy, they are fundamental in the governance of the country and are obligatory on the organs of the state. The Hon’ble Supreme Court also observed the international commitment made by India by ratifying the International Convention on the Rights of the Child. The Court noted that India has committed to progressively implement Article 32 of the Convention. The Court also noted the various statutory provisions that have been enacted to prohibit the employment of children in different occupations.
The Court ruled that every employer must be asked to pay a compensation of Rs. 20,000 for every child employed in contravention of the provisions of the Child and Adolescent (Prohibition and Regulation) Act, 1986. The Court held that the inspectors appointed under that Act should ensure that the compensation is paid by the employer to a fund known as the Child Labour Rehabilitation-cum-Welfare Fund. The Court observed that all the Constitutional Provisions must be implemented by the appropriate government as defined under Section 2(f) of the aforementioned Act.
Labourers Working on Salal Hydro-Electric Project v. State of Jammu and Kashmir, 1983
Although the instant case was mainly about the exploitation of workers employed for the construction of the Hydroelectric project near Salal in Jammu and Kashmir, the case also ruled about the issue of child labour as a few minors were found employed on the project site. The Hon’ble Supreme Court in this case reaffirmed the ruling of the Apex Court in People’s Union for Democratic Rights and Ors. v. Union of India and Ors (Asiad Workers’ Case).
Brief facts
An Article published in the Indian Express Newspaper on August 26th 1982 reported that a large number of migrant workers from Orissa who were employed for the construction of the Salal Hydroelectric project undertaken by the Central government were denied various benefits available to workers under labour laws and were exploited.
The People’s Union for Democratic Rights addressed a letter to the Hon’ble Supreme Court with a copy of the news article and prayed before the court to treat the letter as a writ petition.
It was accepted by the court and was treated as a writ petition. The Court ordered the Labour Commission of Jammu and Kashmir to visit the construction site and to prepare and submit a report.
The Jammu and Kashmir Labour Commission submitted its final report in October 1982. The report revealed there were a few instances of violation of labour laws, especially the Minimum Wages Act, of 1973 and the Contract Labour Act. The report further revealed that some kids were present at the construction site.
The presence of children was explained by stating that the kids were present there to accompany their family members on their own and insist on getting employed.
Judgement
The Hon’ble Supreme Court on the issue of Child Labour reaffirmed the observations made in the Asiad Workers’ Case that construction is a hazardous occupation and therefore no children below 14 years of age can be employed for construction work. The Court noted that child labour is a complicated issue which purely exists on economic grounds. It observed that the employment of children either by parents or by the kids themselves was mainly due to financial constraints and for livelihood. It highlighted that it is due to such socio-economic conditions that it is difficult to solve the issue of child labour and it is the same reason that Article 24 extends to the employment of children in mines, factories and other hazardous employment. The Court noted that the issue will continue to exist as long as there exists poverty. It further noted that though it is hard to get rid of child labour completely, attempts should be made to reduce it if not eradicate it. The Court observed that the reduction of child labour is necessary to ensure that a child gets an education which is essential for the socio-economic development of the nation.
The Court noted that the issue of child labour cannot be solved merely by legislative process. It observed that construction work is certainly a hazardous occupation and hence employment of children must be prohibited at construction sites according to Article 24 of the Constitution. The Court further ruled that the enforcement of Article 24 has to be done by the Central government and should provide various facilities to the children of the workers such as free books, transportation and arrange for payment of school fees which would help convince the workers to send their children to school. The Court suggested if any construction work undertaken by the Central government is likely to last for a long time, then the government must ensure schooling facilities for the workers living near or at the construction site.
In addition to the above-mentioned judgements, various other judgements highlight the importance of educating children and the provision of other facilities that have been mentioned under various Articles in Part IV of the Constitution. One such significant observation was made in the judgements of Mohini Jain v. State of Karnataka (1992)andUnnikrishnan, J.P. v. State of Andhra Pradesh (1993)where the Hon’ble Supreme Court ruled that the Right to education is a fundamental part of the Right to life under Article 21 of the Constitution. Additionally, apart from the rulings of the Hon’ble Supreme Court, various High Courts have made several observations and given directions for the rehabilitation of children.
National Child Labour Project Scheme
National Child Labour Project (NCLP) Scheme was started in 1988 by the Central government in pursuance of the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986 and as a part of an action plan that was discussed in National Child Labour Policy, 1987. The NCLP Scheme was started for the rehabilitation of children rescued from various hazardous occupations. This scheme focuses on the educational rehabilitation of rescued children. It was initiated to rehabilitate children from 12 child labour-endemic districts across the country.
Objectives
The NCLP Scheme is mainly concerned with the educational rehabilitation of the exploited children which is the primary goal of the scheme. The following are the objectives of the NCLP Scheme.
To adopt a sequential approach for rehabilitation of children engaged in child labour in different hazardous occupations.
To conduct surveys of child labour gathering information regarding the extent of child labour and the hazardous processes engaging child labour.
To withdraw children from hazardous processes and occupations and to rehabilitate them to schools for formal education.
To provide various facilities to the children through special schools and rehabilitation centres.
The facilities provided by these centres include vocational training, bridge courses, mid-day meals, a monthly stipend of Rs. 150 per child, and health care facilities. Healthcare facilities are provided by appointing a doctor for a group of 20 schools.
Implementation of the Scheme
This project is implemented at the district level by a registered society under the chairmanship of the district administrative head. The society consists of other members from NGOs, concerned government departments, local institutions etc. These project societies are funded by the Ministry of Labour and Employment (Central government).
A survey is conducted under this scheme to gather information about child labour engaged in various occupations which is followed by the withdrawal of those children from such occupations and then by their educational rehabilitation. The children belonging to the age group of 5 to 8 years are directly merged to formal schooling under Sarva Shikshana Abhiyan while the children belonging to the age group of 9 to 14 years are rehabilitated through the special schools established under this scheme.
Current status of the Scheme.
The NCLP scheme which was initiated with merely 12 districts was later on expanded to 271 districts. The NCLP was sanctioned to 324 districts as of March 2021 and it has been merged with the Sarva Shiksha Abhiyan (SSA) Scheme of the Ministry of Education since then. Currently, around 3.2 lakh children are enrolled in 7311 schools and around 8.5 lakh children have already been rehabilitated to the formal education system since the initiation of the scheme.
INDUS Project
The INDUS (Child Labour) Project is a joint project between India and the U.S. for the elimination of child labour. This project is jointly funded by the Ministry of Labour of India and the Department of Labour of the United States.
The Project was implemented in 21 districts across five states, namely, Madhya Pradesh, Maharashtra, Uttar Pradesh, Tamil Nadu and Delhi and was completed in March 2009. The Project turned out to be exceptionally successful as it facilitated the withdrawal of around 1 lakh children which was 20,000 more than the target set during its inception.
The major objectives and outcomes were similar to the NCLP project, it was treated as a part of the NCLP project. The project mainly aimed at conducting a detailed survey of various occupations engaging child labourers which was followed by the withdrawal of children and subsequently their educational rehabilitation.
Conclusion
It is an undisputed fact that child labour is India’s one of the biggest concern, but at the same the efforts made and the steps taken by the government cannot be undermined. Although child labour exists across the nation to a large extent, it has been significantly reduced over the past two decades due to the potential measures and schemes implemented by various states and the reduction is evident through the census data. The growing awareness among the people is also one of the reasons for the reduction in child labour.
It is vital to understand that the complete eradication of child labour is not an easy task as poverty in India is still a concerning matter. As pointed out by the Apex Court in different judgements poverty is one of the biggest reasons for child labour. Therefore, efforts must be made to reduce the poverty rate which in turn will reduce child labour. The NCLP Scheme of the Central government is an exceptional measure which has been proven successful in rehabilitating several children across the country and enrolling them in a formal educational system. It is extremely necessary to implement more such measures which focus on tackling child labour as well as enabling children to secure a better future.
As highlighted by the Apex Court in the Salal Hydroelectric project case, the issue of child labour cannot be merely solved by legislative process. In addition to the legislative process and policy making, steps must be taken to ensure proper implementation and enforcement of schemes and policies which are necessary to eradicate poverty and child labour. Ultimately, the value of a policy depends upon its execution because a good policy which is not rightly implemented cannot serve its purpose. Therefore, effective enforcement of policies and schemes must be ensured. The state must fulfil the obligations which are laid down as directive principles by effectively implementing them.
Frequently Asked Questions (FAQs)
Which is the primary legislation on the issue of Child Labour?
The Child and Adolescent Labour (Prohibition and Regulation) Act, 1986 is the primary legislation that deals with the issue of child labour.
Is Child Labour completely prohibited in India?
The employment of children below 14 years of age is completely prohibited but employment of children belonging to the age group of 14 to 18 years is allowed subject to certain restrictions.
This article is written by Tejashree Salvi. The article explains the Tamil Nadu Shops and Establishments Act, 1947. This article covers all the valuable content in this Act. Several establishments are covered by this Act, like shops, organisations, and industries. This article covers how the Act protects employee rights and benefits, as well as how it assists employers in structuring their businesses.
Table of Contents
Introduction
The Tamil Nadu Shops and Establishments Act, 1947 consists of a group of regulations that help shops and establishments in the state of Tamil Nadu regulate their operations and employee rights. The Tamil Nadu Shops and Establishment Act was introduced in 1947. This Act regulates the conditions of workers in shops, commercial establishments, restaurants, theatres, and other entertainment places, protects employee rights, and helps them provide all benefits. For any establishment or shop registered under this Act, it is mandatory to follow all rules and regulations in this Act. If any establishment is exploiting labour or not following rules and regulations, the organisation can face penalties, a fine, or even the closure of their business.
The main objectives of the Act are to provide regulations for the payment of wages, terms of services, work hours, overtime work, rest intervals, opening and closing hours, holidays, closed days, work conditions, leaves, maternity leaves, and benefits; rules for employment of children; and records maintenance.
Historical aspects of Tamil Nadu Shops and Establishment Act, 1947
In order to understand the present implication of the Act, it is essential to look into the historical context of the Act. This Act replaced the old Madras Shops and Establishment Act of 1945. After gaining independence in 1947, the post-independence period witnessed a need to reframe the structure of the economy. Labour plays an important role in the economy of a nation. For the growth of the economy in the post-independence period, there was a need to secure and protect labour rights in the nation so that labour could work more efficiently. To secure labour rights after independence, many states at the time enacted the Shops and Establishments Act. Tamil Nadu is one of the states that enacted this Act to create a shield for employee rights and benefits.
During the time of pre-independence, there was a lot of labour exploitation, which further led to several labour rights movements at that time, and this Act played a very crucial role in controlling them and creating a proper structure for employees’ working conditions. This Act ensures employee’s rights and welfare, as well as providing help to organisations to regulate their businesses.
After independence, several states experienced growth in urbanisation and industrialization. Tamil Nadu also saw growth in these two sectors. To structure this growth, they decided to enact the Tamil Nadu Shops and Establishments Act in 1947. This Act helped the state protect the rights of employees and stop the exploitation of labour. The main goal of the labour movement was to create proper working hours for labour and stop unfair labour practices. This Act helped the state prevent the same and regulate labour working conditions.
Purpose and objectives of the Act
Applicability
This Act is applicable to several organisations, shops, and industries, including commercial and non-commercial establishments. It includes factories, shops, and public entertainment places. If an organisation falls under this Act, they must ensure that they comply with the provisions of this Act and follow all the rules and regulations of this Act to avoid any penalty.
Working hours and overtime
As per Section 9, the maximum number of permissible working hours in a day is 8 hours and 48 hours in a week. If any employee works overtime, the timing of overtime should not exceed ten hours in a single day and not more than fifty-four hours in a week. According to Section 9(2) of this Act, no person is required or permissible to work more than 4 hours in a day if he does not have a break of one hour for rest.
Section 2 of the Factory Act, 1948, defined a young person as follows:- “young person” means a person who is either a child or an adolescent. As per Section 18 of the Tamil Nadu Shops and Establishment Act, a younger working person is not allowed to work daily for more than 7 hours. In any establishment, a young person cannot work before 6 A.M. or after 7 P.M., and in one week they must not exceed 42 hours of working. A normal working person must not work more than 8 hours a day and not exceed 48 hours a week.
Weekly holidays and leave policy
Section 11 of this Act states that weekly holidays are mandatory to maintain the work life balance of employees. Apart from that, there are annual holidays available, like annual leave with wages, sick leave, and maternity leave, which are important for employee welfare. Once any employee completes the 12-month period of their employment, that employee is eligible for 12 days annual leave.
Safety rules for women employee
Under the Tamil Nadu Shops and Establishment Act 1947, women employees shall not be required to work after 8 P.M. And if any woman employee works after 8 P.M. and before 6 A.M, the employer must obtain written consent from that woman employee, and employers must provide proper transportation facilities to women employees who work on shift duty. A notice of the transportation facilities available must be displayed at the main entrance of the establishment. Employees must provide restrooms, washrooms, safety lockers, and other basic amenities. Also, every employer must constitute an internal complaints committee against sexual harassment of women under the Sexual Harassment of Women at Workplace Act 2013.
Health and safety
The Act also provides for taking care of the health and safety of employees. As per Section 20, the working area of employees must be clean and free from odours arising from any drain, privy, or other nuisance. As mentioned in Section 21, work premises must have proper ventilation facilities. During working hours, they must have proper lighting, as per the provisions mentioned in Section 22. Every establishment must take precautions and maintain safety features in the workplace in case of a fire accident.
Employment of children
Children means a person who has not completed the age of 14 years. In the Tamil Nadu Shops and Establishments Act,under Section 17, there is a strict prohibition on the employment of children.
Employment of young people
Employment of young people also has a time limit for daily and weekly hours. A young person is someone who is between 15 and 18 years old. Their working hours must not exceed 42 hours on a weekly basis.
Records and Registers
Section 47 provides that employers must maintain all the records of employees, like attendance registers, wages, and leave records, accurately because it is a legal requirement and helps for effective business management.
Inspection and Penalties
Under Section 42 of this Act, the state government appoints the inspector. Section 43 further empowers the inspectors to enter into any organisation, which they believe to be any establishment, but they must do so within reasonable hours and make checks of the premises, registers, records, or notices as prescribed. And if any establishment fails to comply with the provisions mentioned in Section 41A, that establishment will face a punishment under Section 45 of this Act penalties, a fine, or imprisonment.
Fine
Under this Act, Section 35 provides provisions for fines. A fine can only be imposed on employees when specific acts or omissions are specified by the employer with the prior approval of the state government or appropriate authority. However, before such an imposition, notice of these specific acts and omissions must be placed where employees are working, so they can easily read this notice. Minor workers who are under 15 years of age are not eligible for any fines. Employers must collect fines within 60 days of the imposition of fines. Fines cannot exceed a certain percentage of employee wages for the wage period. Employers must maintain records of the collected fines. Employers must use this fine amount for the benefit of employees.
Important definitions
Shop
As per Section 2(16) of the Tamil Nadu Shops and Establishment Act, shop means any premises where any trade or business is carried on or where services are rendered to customers and includes offices,store rooms, godowns, and warehouses, whether in the same premises or otherwise, used in connection with such business but does not include a restaurant, eating house, or commercial establishment.
Commercial Establishment
As per Section 2(3) of the Tamil Nadu Shops and Establishment Act, “commercial establishment” means an establishment which is not a shop but which carries on the business of advertising, commission, forwarding, or commercial agency, or which is a clerical department of a factory or industrial undertaking, or which is an insurance company, joint stock company, bank, broker’s office, or exchange, and includes such other establishments as the state government may by notification declare to be a commercial establishment for the purposes of this Act.
Establishment
As per Section 2(6) of the Tamil Nadu Shops and Establishment Act 1947, establishment means a shop, commercial establishment, restaurant, eating-house, residential hotel, theatre, or any place of public amusement or entertainment and includes such establishment as the state government may, by notification, declare to be an establishment for the purposes of this Act.
Person employed
As per Section 2(12) of the Tamil Nadu Shops and Establishment Act 1947, person employed means:-
In the case of a shop, a person wholly or principally employed therein in connection with the business of the shop;
In the case of a factory or an industrial undertaking, a member of the clerical staff employed in such a factory or undertaking;
In the case of a commercial establishment other than a clerical department of a factory or an industrial undertaking, a person wholly or principally employed in connection with the business of the establishment, and includes a peon;
In the case of a restaurant or eating house, a person wholly or principally employed in the preparation or serving serving food or drink, in attendance on customers, in cleaning utensils used on the premises or as a clerk or cashier;
In the case of a theatre, a person employed as an operator, clerk, door-keeper, usher or in such capacity as may be specified by the State Government by general or special order;
In the case of an establishment not falling under paragraphs (i) to (v) above, a person wholly or principally employed in connection with the business of the establishment includes a peon;
In the case of all establishments, a person wholly or principally employed in cleaning any part of the premises; but does not include the husband, wife, son, daughter, father, mother, brother or sister of an employer who lives with and is dependent on such employer;
Wages
As per Section 2(18) of the Tamil Nadu Shops and Establishment Act, 1947 wages means any remuneration, capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied, were fulfilled, be payable, whether conditionally upon the regular attendance, good work, conduct, or other behaviour of the person employed, or otherwise, to a person employed in respect of his employment or of work done in such employment, and includes any bonus or other additional remuneration of the nature aforesaid, which would be so payable, and any sum payable to such person by reason of the termination of his employment, but does not include:
The value of any house-accommodation,supply of light, water, medical the value of any house-accommodation, supply of light, water, medical attendance or other amenity or of any service excluded by general or special order of the StateGovernment;
Any contribution paid by the employer to any pension fund or provident fund;
Any travelling allowance or the value of any travelling concession;
Any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or
Any gratuity payable on discharge.
Registration process under Tamil Nadu Shops and Establishment Act
Registering under the Tamil Nadu Shops and Establishment Act is mandatory for any business, shop, or commercial establishment operating within Tamil Nadu. The first step in the registration process is to identify whether the establishment falls under the definition of a shop or commercial establishment as per the Act. This Act covers several establishments, including shops, offices, hotels, restaurants, theatres, and other establishments.
The first step in the registration process is to go to the website of the Tamil Nadu Labour Department (https://labour.tn.gov.in/) to access the required form and information for the registration process.
The second step is to download the necessary form and application.
The third step is to fill out the application form with the necessary details, like the name and business details of the employer, address, and number of employees. And after this, attach the necessary documents, such as:-
Address proof of the establishment, rental agreement, and ownership documents.
Identify and address proof of the employer’s Aadhar card, PAN card, or voter ID.
Proof of incorporation.
Details of the employees working in the establishment and shops.
Once the application form is complete and the required documents are attached, submit the application to the Labour Department office nearest to your business. You may need to visit the office in person or send the application by post.
Pay the registration fees along with the application form. you will need to pay registration fees according to the number of employees working in your organisation.
The fourth step is to submit the application form along with the necessary fees.
After submitting the application form, the Labour Department of the State of Tamil Nadu proceeds with the application, and if necessary, they can visit the organisation. Once they ensure that the application form and documents are true, they approve the application and provide a registration certificate. This certificate is legal proof for any organisation that comes under the Tamil Nadu Shops and Establishment Act. The registration certificate must be displayed in a prominent place in the organisation for public view. The validity of registration certificates is five years. Owners can renew their certificate’s validity every five years after paying appropriate renewal fees.
Registration charges for Shop and Establishments in Tamil Nadu
Number of Employees
Fees
1 to 15
₹ 6,500
6 to 11
₹ 9,000
12 to 21
₹ 15,500
Exemptions under the Tamil Nadu Shops and Establishment Act, 1947
As per Section 4 of this Act, the establishments which are exempted are:-
The person employed in any establishment in a position of management;
The person who works involve travel, and the person employed as canvassers and caretaker;
Establishments that come under the central and state governments, local authorities, Reserve Bank of India, Railway administration,and cantonment authorities are exempted from registering under this Act.
Establishment in mines and oil fields;
Establishments are in place where fairs or festivals are held temporarily for a period not exceeding fifteen days at a time;
Organisations that are not factories within the meaning of the Factories Act, 1948, are, in respect of matters relating to this act, governed by separate law for the time being in force of the state.
Benefits of registering under the Tamil Nadu Shops and Establishment Act, 1947
The registration document gives legal proof to the business owner.
Getting the establishment registered under this Act guarantees an establishment smooth inspection process.
Opening a current account for a business entity is only possible after registering the business.
Registration of shops and establishments allows owners to access benefits that the government provides to small and medium scale business owners.
Landmark case laws
Regional Manager v. A. Kalyanasundaram (2008)
In this case, the first respondent, A. Kalyanasundaram, filed an appeal against the appellate authority order. An appeal was filed under Section 41(2) of this Act.
The first respondent worked as a bill clerk in a management retail shop in Kayalpattinam from March 14, 1975. Two more people also worked in the same shop. On October 12, 1975, the senior regional manager inspected the shops and observed a shortage of wheat, sugar, raw rice, and boiled rice. Consequently, he sent a memo to the first respondent on December 20, 1975. Meanwhile, the Taluka Supply Officer inspected the shops and submitted the report. Based on the report of the Tahsildar, the first respondent was placed under temporary suspension. And charges were framed against him. They concluded to discharge him from service, and after that, they passed an order removing him from service.
The first respondent said that the inquiry was not conducted properly and he did not get any chance to cross-examine the witness. On the other hand, management said the first respondent admitted the misconduct and he repaid the amount of the shortage. The appellate authority at the time of the hearing set aside the order of removal of the first respondent that was passed by the senior regional manager of Tamil Nadu Civil Suppliers Corporation. Because the senior regional manager agreed that a statement was recorded in his presence, and he signed it as the senior regional manager, not as an inquiry officer.
On the other hand, the first respondent counsel submitted that there is a G.O. passed by the government of Tamil Nadu in G.O.M.S. no. 379 dated February 17, 1984, which is only conferred by Section 6 of this Act. But the Tamil Nadu government exempted all the establishments that come under the Tamil Nadu Civil Supply Corporation from all the provisions of this Act except Sections 11(1), 25, 31, 41, 43, 45, 50, and 51. Hence, the writ appeal was dismissed accordingly.
Management of TVS and Sons Ltd. v. The Appellate Authority under Tamil Nadu (2003)
In this case, Sivakumar, who worked as a customer relationship manager at TVS and Sons Ltd., claimed that a workman named “Saravnam” created a duplicate invoice and sent it to the finance company. He shared this with the sales manager, Dhandapani but the sales manager told him to keep quiet. After that, a show cause notice was issued 28-09-2009 for the dismissal of a workman. On 05-09-2009 a worker made his representation, and management was not satisfied with that, so they dismissed him from the service on October 28, 2009.
The worker was aggrieved by the decision order, so he filed an appeal before the first respondent under the provisions of Section 41(2) of this Act. The authorities recorded both sides of the evidence; they saw that charges were not proved, so they set aside the order of dismissal. On the other hand, management said that petitioner started work as a machine operator and worked as a sales executive at the Velipurnam factory, a registered factory under the factory Act, and that petitioner is not entitled to an appeal under Section 41(2) of the Tamil Nadu Shops and Establishment Act. On the basis of this fact, the government decided to exempt all employers who are registered under the Factory Act from the Shops and Establishments Act. The writ petition was dismissed with no costs and other miscellaneous petitions were closed.
Conclusion
The Tamil Nadu Shops and Establishment Act, 1947, is an important Act for putting an end to exploitation of labour rights and simultaneously ensuring the safety and protection of these rights. The present Act replaces the old Madras Shops and Establishment Act of 1945. The Tamil Nadu Shops and Establishments Act plays the role of a shield for employment rights. It regulates several aspects, like checking the working condition of employees, ensuring their wages amount, and taking care of the health and safety of employees. It also helps employers regulate and structure their businesses. Employees get all their rights, like paid annual leaves, a proper wage amount, proper working hours, one paid leave on a weekly basis, and women employees get maternity benefits and leaves.
After independence, the Indian government started to structure the economy, and labour plays a very crucial role in the economy of the nation. Protecting labour rights was crucial at that time. Several states enacted the Shops and Establishment Act to protect labour rights in their states. This Act helps maintain discipline and ensure proper balance in employment practices. The law is applicable to several establishments, such as shops, commercial enterprises, and public entertainment venues. Under this Act, registration and renewal of licences for establishments are mandatory. The main object of the Act is primarily to regulate the working hours, safety measures, and leave policies of employees.
Under the Tamil Nadu Shops and Establishments Act, it is mandatory for employers to maintain a proper register and records of employees. Maintaining registers makes it easier for employers to manage their day-to-day operations. In this digital age, registration under the Act is very simple and hassle-free. Establishments can apply online for registration and licence renewal. The registration process provides legal validity to your establishment under the said Act, simplifies the inspection process, and makes the establishment eligible for government benefits.
It creates a balance between employees and employers, safeguarding the rights and safety of employees. It further acts as a shield for protecting their rights and also helps employers regulate their businesses. Securing labour rights is important so labour can work more efficiently,which ultimately benefits the state economy and the development of the state.
Frequently Asked Questions (FAQs)
Which establishments are exempted from registration under the Tamil Nadu Shops and Establishments Act?
Establishments that come under the state or central government, RBI, local or cantonment authorities, or any establishment that involves activities in the oil or mining business, or any individual person, or any establishment that can only work for 15 days. All these establishments are exempt from registering under this act.
Which are the required documents by any establishment for registration under the Tamil Nadu Shops and Establishments Act, 1947?
At the time of registration under this Act, the documents required are a PAN card (for private limited companies), an article of association and memorandum of association (for private limited companies), Forms 18 and 32, incorporation certificates of company, address proof and identity documents of directors of companies, a rental agreement (if applicable), payment receipts, and commercial address proof.
What are the advantages of registering any establishment under the Tamil Nadu Shops and Establishments Act, 1947?
The registration process creates legal proof for any business. Business owners have one strong piece of legal proof. After completing the registration process, any business owner can open a current account. It also gives hassle-free inspections to businesses; every organisation is eligible for government benefits after completing their registration.
What is the role played by the Tamil Nadu Shops and Establishments Act, 1947, in the post- independence period?
In times after independence, the state economy needed to create a proper structure for economic growth. Labour plays a very important role in economic growth, so there was a need to protect labour rights at that time. This Act replaced the Madras Shops and Establishment Act of 1945 and played a crucial role in establishing a stable structure for business that created growth in the economic condition of the state.
Are there any penalties for non- compliance with rules and regulations under the Tamil Nadu Shops and Establishment Act, 1947?
Establishments that register their business under this Act. It is mandatory to follow all the rules and regulations mentioned in this Act. If any establishment fails to do so, that establishment can face penalties, a fine, or the closure of their business.
On which ground can an employee file an appeal under the Tamil Nadu Shops and Establishment Act, 1947?
The grounds for appeal commonly include two reasons. First, in the case of the dismissal of an employee’s services, the employee can file an appeal to prove that the dismissal is invalid and not in accordance with the provisions of the Act. Second, when an employer alleges misconduct by the employee, the employee can file an appeal to prove their innocence through this appeal process.
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Effective governance is essential for every organisation to grow well. It functions similarly to a vital organ in the body, ensuring that the body does so in a healthy way. Good governance encompasses the company’s processes, values, and set of rules and regulations. It addresses human resources, accountability, transparency, and sustainable development. The board of directors is mostly responsible for the company’s sound governance.
However, who sets the corporate governance guidelines? The Securities Exchange Board of India (SEBI) and the Ministry of Corporate Affairs (MCA) comprise the guidelines for corporate organisations in India. However, the issue at hand is how to keep an eye on a company’s expansion or determine whether it is adhering to all applicable regulations and guidelines as stipulated by the MCA and SEBI. To stay on top of the same thing, we need a system in place. We do have corporate governance and various methods for it. The two categories of governance mechanisms are internal and external corporate governance mechanisms.
What is corporate governance mechanism and its significance
A certain set of authorities and responsibilities that have an influential influence on management decisions and eliminate the managers’ discretionary space is termed a corporate governance mechanism. These mechanisms act as a control between the agent and principals, reducing agent costs and further safeguarding the interests of stakeholders.
The importance of having a corporate governance mechanism is that it creates a system of rules and practices that aligns with the interests of all stakeholders. Good corporate governance fosters ethical business practices, which lead to financial viability. In turn, it can attract investors. Strong and effective corporate governance helps to cultivate a company culture of integrity, leading to positive performance and a sustainable business overall. Essentially, it exists to increase the accountability of all individuals and teams within your company, working to avoid mistakes before they can even occur. When a company has solid corporate governance, it signals to the market that the organisation is well managed and that the interests of the management are aligned with those of external stakeholders. And the growth of the company is ensured.
Basically, two types of mechanisms revolve around the corporate environment, depending on the influence and relative importance of these tools. The two mechanisms are within and outside the firm.
Types of corporate governance mechanisms
Internal corporate governance mechanism
Internal mechanisms are the ways and methods used by the firms that help the management enhance the value of shareholders. The constituents of internal mechanisms include:
The board of director
Board committees
Financial statements and auditors
Ownership structure
Stock based competition
External corporate governance mechanism
Sometimes internal mechanisms lack themselves while performing the best for the company. In such scenarios, external corporate governance plays an important role in tracking the performance of businesses and their growth. External corporate governance mechanisms encompass various structures, processes, and practices that are designed to oversee and guide businesses from outside the organisation. These mechanisms involve the participation of external stakeholders, such as shareholders, creditors, regulators, and other independent bodies, to provide oversight, accountability, and transparency. Here are some key external corporate governance mechanisms:
Shareholders
Shareholders, as the owners of the company, have a vested interest in its success. Through shareholder meetings, proxy voting, and engagement with management, shareholders can exercise their rights and influence corporate decisions. They can hold the board of directors accountable for their actions, ensuring that the company’s best interests are upheld.
Board of directors
The board of directors, comprising both executive and non-executive members, is responsible for overseeing the company’s operations and strategic direction. External directors, who are independent of management, bring objectivity and expertise to the board’s decision-making process. They provide critical oversight, challenge management decisions, and represent the interests of shareholders and other stakeholders.
Auditors and financial reporting
External auditors, appointed by shareholders, play a vital role in ensuring the accuracy and transparency of financial reporting. They independently review the company’s financial statements, providing assurance to stakeholders that the financial information is reliable and free from material misstatements. This helps investors make informed decisions and enhances the credibility of the company.
Regulatory bodies
Government agencies and regulatory bodies play a significant role in corporate governance by setting standards, enforcing rules, and monitoring compliance. They oversee various aspects of business operations, such as environmental sustainability, labour practices, and antitrust laws. Regulatory bodies ensure that companies operate within legal and ethical frameworks, protecting the interests of stakeholders and society at large.
Institutional investors and proxy advisors
Institutional investors, such as pension funds and mutual funds, have significant influence on corporate governance. They often engage with companies to promote good governance practices, such as board diversity, executive compensation, and shareholder rights. Proxy advisory firms provide independent advice and recommendations to shareholders on voting matters, influencing corporate governance decisions.
These external corporate governance mechanisms work together to strengthen the overall governance framework of organisations. They provide checks and balances, ensure transparency, and protect the rights of stakeholders. By effectively monitoring business performance and promoting ethical practices, external corporate governance mechanisms contribute to the long-term success and sustainability of businesses.
What is the nature of business growth and why is it important to monitor the same
Business growth is the phase in which a company reaches the point of expansion and looks for new ways to increase revenue. The business lifecycle, industry growth patterns, and the owner’s goal to create equity value are the factors that determine how a business grows. The company’s ability to grow is essential to its long term existence. It facilitates funding initiatives, attracting fresh personnel, and asset acquisition. It also fuels profit and corporate performance. Additionally , growth can help you expand your supply base , improve stability and profitability, and establish the legitimacy of your company. Growth , though,needs to be deliberate and motivated by the correct factors in order to be successful and long lasting.
In a similar manner, governments also continue to track business growth in order to develop appropriate policies and execute them in accordance with national demand and the needs of the economy. Additionally, external variables include independent investors and financial institutions that monitor the company’s development in order to make informed decisions prior to making any financial investment.
Let us be specific, as we are only going to be discussing external corporate governance mechanisms in this essay. They are as follows:
Financial market
Any place or framework that enables buyers and sellers to exchange financial instruments, such as derivatives, bonds, stocks, and different foreign currencies, is referred to as a financial market. The exchange of capital between investors and people in need of capital is facilitated by the financial market. Here, the stock market plays a significant role in a firm’s ups and downs. There is a direct relationship between the market value of a firm and the efficiency of its managers.
Therefore, a company that is losing market value could be acquired with the assistance of another large corporation. The management of the company may take negative measures in response to the takeover threat, such as implementing an agency expenses policy or using any other tactic to protect their business. This is how the financial market can analyse the growth of any business.
The market for good and services
A further element that propels the company’s enterprise is competition. A company’s business will naturally begin to decline if the public is dissatisfied with the goods and services it provides; this could also result in a decline in the company’s profit margin. Therefore , in order to access resources in accordance with market demands, the corporation must promptly implement research and surveys. These corporate surveys make sure the business is headed in the proper direction, which promotes growth and they are also a terrific way to keep an eye on how the business is growing.
The labour market for managers
Human capital is a term that can and cannot be occasionally controlled. In order to satisfy their needs, the labour market may compete with the business and perhaps damage the company’s resources if managers exhibit extreme conservatism and strictness towards their staff. To establish a healthy balance of coordination between manager and employees, this process requires the correct selection of a competent manager who oversees the lower class employees. Human resources are essential to the expansion of any business. If the workers are content and happy with their employer, it indicates that the business will thrive in future.
Regulatory role of the state
In order to determine periods of economic expansion or contraction, assess the state of the economy overall, and formulate wise policy decisions, the government monitors business cycles. Government laws apply to every industry, and institutions are required to adhere to these regulations. Penalties are levied on the institutions for breaking these regulations. Government rules are therefore a necessary reality for industries. A collection of guidelines or procedures designed to assist citizens in making informed economic decisions that are advantageous to the country as a whole is known as government policy for business growth.
For instance, the expansion of the corporate sector in India has been significantly aided by policies such as liberalisation, privatisation, globalisation, foreign direct investment (FDI), outward foreign direct investment (OFDI), etc.
Liberalisation: The liberalisation of the Indian economy began in the early 1990s and involved a number of measures to reduce government control over the economy and open it up to private sector participation. This included the removal of industrial licensing requirements, the reduction of tariffs, and the opening up of the banking and insurance sectors to foreign investment.
Privatisation: The liberalisation of the economy was accompanied by a wave of privatisation, as the government sold off many of its loss-making enterprises to private companies. This included the sale of major public sector banks, telecommunications companies, and airlines. Privatisation was seen as a way to improve the efficiency and profitability of these companies and to reduce the government’s fiscal deficit.
Globalisation: The globalisation of the Indian economy has been driven by a number of factors, including the growth of international trade, the rise of multinational corporations, and the spread of information technology. Globalisation has led to increased competition in the Indian market, which has forced companies to improve their efficiency and innovation. It has also led to increased foreign direct investment (FDI) in India, which has helped to finance the country’s economic growth.
Foreign direct investment (FDI): FDI has played a major role in the expansion of the corporate sector in India. FDI inflows have increased significantly in recent years, as foreign companies have been attracted by India’s large and growing market, its relatively low labour costs, and its improving business environment. FDI has helped to finance the growth of new businesses, create jobs, and transfer technology and skills to India.
Outward foreign direct investment (OFDI): In recent years, Indian companies have also begun to invest overseas, in a process known as outward foreign direct investment (OFDI). This has been driven by a number of factors, including the desire to access new markets, acquire resources, and spread risk. OFDI has helped to internationalise Indian companies and raise their global profile.
Conclusion
Corporate governance mechanisms are a specific set of powers and duties that have the ability to significantly impact management decisions and limit managers’ latitude in making decisions. These methods further guarantee the protection of stakeholder interests by serving as controlling tools to establish a balance between principal and agent costs. We have spoken about the corporate governance mechanisms in this article and how crucial they are for businesses to grow. These days, corporate governance is a subject that all businesses must discuss. But there is still one question: why do we need these internal and external corporate governance mechanisms? The primary cause of the inadequate corporate governance practices prevalent in the Indian corporate sector is the family structure of the majority of the companies. The majority of the so-called shareholders are relatives who do not have to know anything about the company’s governance. Therefore, in order to establish proper governance, these kinds of businesses require appropriate monitoring and controlling mechanisms. Good governance is advantageous for the expansion of business as well as the country’s economy. We also talked about the two different kinds of corporate governance mechanisms:Internal and external. Since the external mechanism was the focus of our paper, we went into great length about it. As an investor, being aware of such important factors is crucial. Investors are more conscious of the impact of governance on a company’s performance. Stakeholder confidence is bolstered and their interests are protected by sound company governance. It keeps investors informed about the company’s numerous initiatives, policies, guidelines, and rules. Overall, we came to the conclusion that corporate governance is essential for implementing transparency, accountability and flexibility in decision making as well as other business practices that not only support the protection of stakeholder interests but also present a favourable image of the company’s financial performance.
The problem of counterfeiting is one of those crimes that has existed in this world since time immemorial. Even before the advent of the digital era, counterfeiting was extensively practised by fraudulent persons and entities when goods and products were sold physically, but post introduction and expansion of the internet, wherein market places evolved and shifted from the physical realm to being online, the bane of counterfeiting grew evermore rampant without any territorial or geographical limitations whatsoever.
Problem of counterfeit listings
Counterfeiting is a serious threat to the genuine owner, wherein the perpetrator passes off its merchandise in a deceptively similar way to that of the original, and such passing off can be of the goods and products as well as of the intellectual property (IP) of the owner, such as copyrights, trademarks, industrial designs, etc.
While each digital marketplace has its own grievance redressal mechanism, and some are expeditious in the removal of the infringing content, there are also those who’re not very proactive and steadfast when it comes to the removal of a counterfeit listing on their platform if a complaint is raised by the owner. In such a scenario, the aggrieved owner of the IP has to opt for other legal alternatives so as to compel the marketplace to comply with such a complaint and remove the infringing content quickly.
Although many countries in the jurisdiction of which these marketplaces operate also have their own specific laws to deal with this problem, in this article, I would confine myself to stipulating and discussing those mechanisms that are not country-specific and can be used by an aggrieved IP owner before and sometimes without knocking on the doors of the court, and not being subject to any territorial limitations, which are as stated below.
Take down mechanisms for of counterfeit listings
Cease and desist notice
This is quite similar to sending a formal complaint to the alleged infringer, wherein a formal notice is sent as a pre-litigation recourse so as to call out to the infringer to stop the infringing activity and take down the counterfeit listing from the marketplace.
This notice also acts as quintessential evidence to prove that the infringer was duly apprised about the rightful claim of the IP owner, nonetheless didn’t remove the listing and continued with the guilty knowledge of the same, which gives more weight to the claim of the rightful IP owner as and when it decides to initiate legal proceedings against the infringer.
However, it’s pertinent to mention that since this notice is not statutorily enforceable in nature, thereby doesn’t carry that much of a deterrent effect, but more of an evidentiary value.
DMCA takedown notice
A DMCA Takedown Notice gets its force from the Digital Millennium Copyright Act of 1998, which is a federal law enacted in United States so as to combat and protect copyright holders from online theft, and is in tandem with the principles and requirements laid down by the World Intellectual Property Organisation (WIPO), of which United States is also a member.
Under this statute, civil as well as criminal penalties can be levied against an infringer when found guilty of copyright infringement.
This statute is enforced by sending a takedown notice or DMCA takedown notice to the website-owner or internet service provider (ISP) for the removal of the infringing counterfeit listing.
Generally, the website-owner or ISP is protected by safe harbour since they are not the ones responsible for posting the counterfeit listing and it becomes very onerous and, more often than not, impossible to keep track of such listings in the ocean of myriad data. However, if the ISPs don’t remove the counterfeit listing even after sending a valid DMCA notice to them, then they are also liable to face penalties as per the statute.
Also, if the website is not willing to comply with the DMCA Notice and remove the counterfeit listing, then the notice can also be sent to the web host provider that is hosting the website on which the counterfeit listing is present, since they house the data on the website and oversee its management and data transfer.
If, however, the infringer files a counter-notice against the DMCA Notice, then a court order may be required by the claimant so as to ensure that such a counterfeit listing is removed for perpetuity.
The advantages of sending a DMCA takedown notice is that it’s more authoritative than a cease and desist notice since it has statutory backing, while the disadvantage of it is that the ambit of the enforceability of this notice is mostly limited to those infringements which occur within United States, and sending this notice as regards for an infringement occurring outside the borders of United States won’t guarantee complete compliance for removal of the counterfeit listing, even if the subject-matter which is being infringed has although originated in United States, but the infringement is occurring in some other jurisdiction, reason being that since many countries have their own laws to protect copyrights, so they would definitely give precedence to them over a DMCA Notice for the removal of the infringing counterfeit listing.
Lastly, even though a DMCA Notice is used to deal with the removal of copyright infringement, the law also aids with the removal of a counterfeit listing that is infringing the trademark of the rightful owner through its additional takedown services.
Google’s safety mechanism
Google has its own grievance redressal mechanism to cater to and remove IP infringement.
While approaching Google for the removal of infringing counterfeit listings won’t ensure that the source or website where such listings are present will be taken down, it would definitely aid the owner to get such a website delisted from the search engine so that in future it doesn’t appear in the search results.
Also, a court order may be required in certain instances by Google to substantiate the claim of the owner of the IP, such as if such complaint is contested by the opposite party, i.e., the alleged infringer, or if the local laws of the jurisdiction where the cause of action has arisen may mandate a court order for certain specific types of content removal.
The Legal Troubleshooter Tool of Google acts as the platform wherein a counterfeit notice can be filed by the owner of IP to apprise Google about those sites that host the counterfeit listing, which is then de-indexed from the search engine after carefully reviewing the veracity of the counterfeit notice filed by removing its visibility.
The counterfeit notice can be filed by following these steps:
Selecting the relevant Google product where the counterfeit content is believed to appear,
Selecting the legal reasons to report content,
Selecting the intellectual property,
Selecting counterfeit.
Also, the notice has to be properly substantiated by attaching the relevant URLs where such a counterfeit listing is present/displayed, official documentation signifying proof of rightful ownership of IP, photos or screenshots and copies of original work.
Since the best way to show proof of ownership for something is for it to be registered, it’s highly recommended that the owner of IP do the same, so as to increase the evidentiary value of the IP and to make the overall process of de-indexing and removal of the counterfeit listing by Google from its search engine hassle-free.
ICANN grievance redressal
The Internet Corporation for Assigned Names and Numbers (ICANN) is an institution that is responsible for accrediting domain name registrars (DNRs), who in turn manage the domain names of websites and assign internet protocol addresses to them.
The majority of the countries, for the purposes of bringing uniformity in their respective IP laws with each other, abide by directives and rules laid down by ICANN, as a result of which the countries have adopted the World Intellectual Property Organisation (WIPO) as their dispute resolution service provider under the Uniform Domain Name Dispute Resolution Policy (UDRP) and Uniform Rapid Suspension (URS).
Registry –Registrar Agreement
ICANN prescribes minimum standards for performance of such DNRs, which are accredited by it.
As per ICANN guidelines, the DNRs accredited by it have to incorporate a mandatory provision in the Registry–Registrar Agreement wherein the registrars/DNRs would prohibit the registrants, i.e., the website-owners from distributing malware, botnet operation, phishing, piracy, trademark or copyright infringement, fraudulent or deceptive practices, counterfeiting or otherwise engaging in activity contrary to applicable law, and provide (consistent with applicable law and any related procedures) consequences for such activities, including suspension of the domain name of the registrant, i.e., the website-owner.
If, however, the registrar doesn’t honour the terms and conditions of the agreement, then the owner can resort to UDRP and URS.
UDRP and URS
Earlier, UDRP, which was introduced in 1999 by ICANN, only covered disputes pertaining to infringing domain names, but with passage of time, it also started covering those disputes whose subject-matter involves the display of counterfeit listings on their website.
In 2019, ICANN further introduced and added the Uniform Rapid Suspension System (URS) so as to further expedite the above mentioned process in a more cost effective way.
This method of approaching UDRP or URS is beneficial because the aggrieved party is saved from approaching the court of the jurisdiction where the cause of action arose, which is a cumbersome and slow process, often entailing huge costs for the aggrieved owner of IP.
UDRP and URS enable the owner of IP to not only recover their domain names but also remove counterfeit listings by getting those websites shut down that use domain names that are identical or confusingly similar to the genuine owner of such domain name, as well as those websites on which such counterfeit listings are displayed.
However, URS requires a higher and stronger standard of proof in the form of clear and cogent evidence that there should not be any dispute whatsoever as regards the claim of who’s the genuine owner of IP, after which a successful proceeding ensues in the freezing of the concerned domain name.
Payment providers
Another effective remedy for the aggrieved IP owners to prevent the unauthorised and illegal sale of goods and products sold as a result of these counterfeit listings is to coordinate with the payment providers, since an effective blockage of the payment accounts of these fraudulent sellers who post such infringing counterfeit listings would be a huge blow to such sellers.
An initiative in 2012 was launched by the Indo-American Chamber of Commerce (IACC) called the Rogue Block Program,[15] a portal to facilitate nexus between the rights holders of the IP, enforcement agencies and the payment provider companies for the purposes of sharing information.
This initiative has been really helpful in the closure of the accounts of such fraudulent sellers, which are linked to numerous websites for the purposes of collecting payment, thus stopping the sale of these counterfeit products and goods.
Impact of counterfeiting
While there are a lot of stakeholders who are harmed as a consequence of counterfeiting, such as the purchasers of these goods, the overall economy of a nation, the biggest and most detrimental effect of this problem is on two particular entities, which are the marketplaces and the genuine owner of the IP.
The sale of goods as a result of these counterfeit listings is a direct blow to the owner of IP, since it causes immense loss of revenue to them and reduces the goodwill of these brands in the minds of the customers who inadvertently purchase such products, assuming these fakes are original.
Also, such counterfeit listings negatively impact the marketplaces, especially if it’s repeatedly observed that such marketplaces don’t remove these listings from their platform despite being sent multiple takedown notices to them, since it erodes the trust of the genuine brands who are the owners of IP.
As an example, IP and brand protection company IncoPro found that 52% of consumers lost trust in a brand after purchasing a fake good online, while 64% lost trust in online marketplaces. This actually led Nike to stop selling its products on Amazon.
Conclusion
Although the above mentioned redressal mechanisms are very effective in removing counterfeit listings and thereto curbing the sale of goods and products ensuing from these listings by fraudulent sellers, these mechanisms are per se not exhaustive since the domain of intellectual property, its infringement, and protection is a very dynamic field wherein infringers find new and innovative ways to misuse the IP of their owner, and the law, in its best efforts, evolves to control and eradicate this misuse and protect the rights of the genuine owner.
While the domestic laws of many countries provide for safeguarding the rights of the owner of IP by providing remedies like the granting of “dynamic injunctions” from courts, availing of these remedies is a struggle in itself of effort and costs, especially if the aggrieved party doesn’t belong to the same jurisdiction where the cause of action arose.
Also, by the time the aggrieved owner would get such remedies from the competent court, quite some time would have elapsed, as a result of which the owner of IP would have suffered an exorbitant quantum of financial loss due to such counterfeit listings by the fraudulent infringer.
So remedies and mechanisms that provide quick, cross-border and inexpensive relief to the genuine owner of IP are the need of the hour today
United States. Congress. Senate. Committee on the Judiciary. The Digital Millennium Copyright Act of 1998 : Report Together with Additional Views [to Accompany S. 2037). [Washington, D.C.?] :[U.S. G.P.O.,], 1998.
This article is written by Monesh Mehndiratta. The article gives an overview of the Tamil Nadu Town and Country Planning Act, 1971. It explains the objective applicability, features, and important provisions of the said Act.
Table of Contents
Introduction
How do you plan for anything?
I am sure that if you want to plan for a party, a trip, a function, or anything else, you will create a checklist, gather all the information, make a group with all the concerned people, divide responsibilities, and carry out the work in order to fulfil the purpose of the plan.
The same procedure is followed to carry out any development of any area in a state or country. Yes, this is true. The Tamil Nadu Town and Country Planning Act, 1971, deals with the development of rural and urban areas in the state of Tamil Nadu. The Act provides for different types of plans to be made for the development, like master plans, development plans, new town development plans, etc. It also provides for the constitution of different authorities depending on the area, like regional planning authorities, local planning authorities, new town development planning authorities etc. These authorities perform their functions, exercise their powers accordingly, and carry out the objective of development in the state. Thus, the present article provides an overview of the Act and explains its objectives and important provisions.
Objectives and application of Tamil Nadu Town and Country Planning Act
The Act got the assent of the president on 24th November, 1972. It is applicable in the state of Tamil Nadu except for the places that are mentioned as cantonments under Section 3 of the Cantonment Act, 1924.
The Act has been enacted to:
To plan the development of rural and urban areas in the state of Tamil Nadu.
To plan the usage of land in rural and urban areas in the state.
To regulate the development and use of such land and other matters connected with it.
Division of Tamil Nadu Town and Country Planning Act
The Act has been divided into 14 chapters, 125 sections and 2 schedules. The chapters are as follows:
Chapter I of the Act deals with applicability and important definitions.
Chapter II provides for the country planning authorities in Tamil Nadu, their constitution, and their incorporation.
Chapter II-A provides for metropolitan development authority for the metropolitan planning area of Chennai.
Chapter III deals with planning areas, authorities and plans.
Chapter IV deals with the provisions related to the acquisition and disposal of land.
Chapter V provides for a new town development authority and related special provisions.
Chapter VI provides provisions for the control of development and use of land.
Chapter VII deals with the levy of development charges and their assessment.
Chapter VIII provides provisions for funds and finance for the purpose of the Act.
Chapter IX gives provision for the constitution of the tribunal under the Act, its staff, and its powers.
Chapter X provides provisions for the appeal, revision and review under the Act.
Chapter XI enumerates the penalties.
Chapter XII gives miscellaneous provisions.
Chapter XIII deals with rules and regulations for the enactment of provisions mentioned in the Act.
Chapter XIV deals with repeal and savings.
Features of Tamil Nadu Town and Country Planning Act
The features of the Act are as follows:
It gives the meaning and definition of important terms used in the Act under Section 2.
It provides for the country planning authorities to be made in Tamil Nadu with their appointment, constitution, and functions under Chapter 2.
Further, the Act also provides for a particular authority in this regard for the metropolitan area of Chennai under Chapter 2A.
It provides for the declaration of regional and local planning areas along with their amalgamation under Section 10.
It also provides provisions for regional plans, master plans, and new town development plans under Sections 15, 17, and 18, respectively.
The provision related to the right to compensation for refusal of a permission related to use of land according to the provisions of the Act is given under Section 53.
The government has a duty to create a state town and country planning and development fund for the purpose of this Act. (Section 64).
It also provides for the constitution of a separate tribunal under the Act to deal with disputes arising under the Act. (Section 71)
The Act provides provisions for appeals to directors, tribunal and prescribed authority under Section 76, 77 and 79 respectively.
The provision related to penalty prescribes penalties for the contravention of the Act. (Section 83).
Authorities under Tamil Nadu Town and Country Planning Act
Tamil Nadu town and country development authority
Chapter 2 of the Act deals with the incorporation of town and country development authorities in the state of Tamil Nadu. The appointment of the director of the authority and other officers is to be done by the government as given under Section 3 of the Act. According to Section 4, there are the following classes of authorities:
The regional planning authority;
Local planning authority;
New town development authority.
Further, according to Section 8 of the Act, every such authority will be a body corporate, have perpetual succession, a common seal, be sued in its own name, acquire, hold, or dispose of property and enter into contracts.
Constitution of the Board
According to Section 5, the government also has to constitute a board for the state known as Tamil Nadu town and country planning board. It will consist of:
Minister in charge of town and country planning as the Chairman.
Ministers of local administration.
Secretaries to government departments like town and country planning, health, local administration, industries, housing, revenue, agriculture, finance, etc.
Chairman of the Tamil Nadu State Housing Board.
Chairman of the Tamil Nadu State Clearance Board.
3 chief engineers who are in charge of public health, municipal works, highways, rural works and buildings.
3 members nominated by the government, representing ministries of railway, civil aviation, transport, and communication.
1 member nominated by the Tamil Nadu Electricity Board.
Director and joint director of town and country planning.
4 other members nominated by the government out of whom two will be from the legislative assembly of Tamil Nadu, one from the legislative council of the State and one from the members of parliament who represent the state of Tamil Nadu.
President of the Chamber of Municipal Chairman.
President of the Tamil Nadu Panchayat Union Association.
The director of town and country planning or any other officer appointed by the government will serve as the Member-Secretary. The term of office of all the members will be prescribed by the government.
Functions of the board
The powers and functions of the board as given under Section 6 are:
The board must guide, direct, and assist the planning authorities in matters related to the planning and development of rural and urban areas in the state.
The board will direct the authority in preparing plans for the development and undertake and assist in the collection, maintenance, and publication of statistics, bulletins and monographs in this regard.
Make and furnish reports related to work done under the Act.
Any other function related to the above functions and subject matter.
The board also has the power to appoint any committee in order to carry out the functions given under the Act. This power is given under Section 7 of the Act.
Metropolitan development authority for Chennai
The government of Tamil Nadu has the power to establish a Metropolitan Development Authority for Chennai as given under Section 9A. It will consist of:
Chairman, Vice-Chairman, six officers of government, two members from state legislature, appointed by the government.
One person representing trade and industry in the area.
One member secretary.
Director.
Joint director or deputy director of the town and country planning for the metropolitan area of Chennai.
Commissioner of municipal corporation of Chennai.
Two representatives of local authorities if there is only one such authority or else not more than four.
Powers and functions of the metropolitan authority for Chennai
The powers and functions of the board, according to Section 9C, are:
Carry out the survey of the Chennai metropolitan planning area and make a report on the surveys.
Make a master plan, development plan, or new town development plan for the Chennai metropolitan planning area.
Prepare the maps for land use and other necessary maps to prepare the development plans.
Designate the metropolitan planning area of Chennai or any part of its jurisdiction to perform the following functions:
Make a new town development plan for that area.
Secure laying out and development of the new town according to the plan.
Perform other functions as specified by the government.
The authority can also entrust to any other local authority the execution work of such a development plan.
Planning areas, authorities and plans
Declaration of regional and local planning areas
According to Section 10 of the Act, the government of Tamil Nadu can declare any area in the state as regional planning area except the area of metropolitan planning of Chennai, after considering the following factors:
Population of the area.
Development of such areas.
Any other factor as prescribed.
Any area can be specified as local planning area or a new town after taking into consideration:
Population of such areas.
Development of the concerned area for industrial and commercial purposes.
Whether the particular area is reserved for a regional planning area.
Any other matter as prescribed.
The inhabitants of the local authority can raise objections against such notification and submit the same in writing to the government within two months of publication of notification regarding specification of regional planning area, local planning area or new town. After the expiry of the prescribed time period, the government may declare such area to be regional planning area or local planning area or new town with or without any modifications and also specify the names of such areas.
The government after consulting the director can also amalgamate the two areas or sub-divide them into different areas and notify the same in the gazette of Tamil Nadu. If this is done, the government will also frame a scheme:
To declare that the assets and liabilities of such an area will vest with the amalgamated regional planning authority or local planning authority.
To determine the portion of assets and liabilities of the areas divided will vest with the concerned authorities constituted for each sub-division.
Regional, local or new town development planning authority
Section 11 provides that the government will also constitute the following authorities:
Regional planning authority.
Local planning authority.
New town development authority.
Constitution of regional planning authority
The regional planning authority consists of:
A chairman who is appointed by the government.
Deputy director of town and country planning authority of such a region.
Members of the local authority, not more than four, appointed by the government.
A member secretary appointed by the government.
Constitution of local planning authority
The local planning authority consists of the following:
Chairman to be appointed by the government.
Two representatives if there is only one local authority in the areas and not more than four representatives if there are more than two such authorities in the area.
Three persons appointed by the government out of whom two will be members of state legislatures representing the constituency of local areas.
Member secretary appointed by the government.
Constitution of new town development authority
It consists of:
Chairman to be appointed by the government.
Chairman or member of regional planning authority.
Deputy director of town and country planning of the concerned area.
Four persons appointed by the government out of whom two will be members of state legislatures representing the constituency of the new town.
Member secretary appointed by the government.
Functions and powers of planning authorities
The regional planning authority will carry out the following functions according to Section 12:
Carry out surveys of the area and prepare reports.
Prepare maps for land use and other necessary maps to prepare the regional plan.
Prepare a regional plan.
To carry out works mentioned in the master plan and detailed development plan.
The local planning authority will carry out following functions:
Carry out surveys of the area and prepare reports.
Prepare maps for land use and other necessary maps to prepare the master plan and detailed development plan.
To carry out works mentioned in the master plan and detailed development plan.
To prepare a master plan and development plan.
The new town development authority will perform the following functions:
Prepare a new town development plan for the area.
Secure laying out and development of the new town according to the plan.
Carry out buildings and other operations.
Provide the services of water, electricity, gas, sewerage etc.
Regional plans
According to Section 15 of the Act, the regional planning authority after consultation with the director, makes a regional plan. The plan will provide:
Manner in which the land has to be used.
Identification of urban and rural growth centres and sites for new towns.
Development of transportation and communication.
Services like water supply, sewerage, electricity, sewage disposal and other public utilities.
Demarcation, conservation and development of natural scenic areas and areas of beauty, landscapes and natural resources.
Areas for military and defence.
Provisions related to prevention of erosion, afforestation, redevelopment of lakes, waterfalls etc.
Irrigation, water supply and hydroelectric works etc.
Master plan
Section 17 of the Act provides for a master plan to be prepared by the local planning authority after consulting regional planning authority. It will provide provisions for:
Manner in which the land of the planning area must be used.
Allotment or reservation of land for the purpose of resident, industry, and agriculture.
Allotment or reservation of land for the purpose of public buildings, institutions and civic amenities.
Provisions for making national highways, ring roads, major streets etc.
Improvement of streets.
Areas for future development and housing.
Improvement of bad layout areas, slum area and relocation of population.
Provisions for development plan for areas kept for housing, shopping, industries etc.
Stages in which the plan has to be implemented.
Development plan
The new town development plan will be prepared by the new town development authority after consulting the director and will be submitted to the government according to Section 18 of the Act. It consists of following contents as given under Section 20:
Laying or relaying out of vacant or built land.
Diversion, extension, alteration etc of roads, communications and lands.
Removal or demolition of buildings and bridges.
Redistribution of boundaries and reconstruction of plots.
Disposal of land acquired owned by local planning authority.
Transport facilities.
Water supply.
Lighting.
Drainage.
Construction of buildings and housing or rehousing of people displaced by such plans.
Demarcation of land, buildings and structures of archaeology, history or natural scenery and so on.
Every such plan must consist of the following particulars:
Lines of existing and proposed streets.
Ownership of all lands and buildings.
Area of such lands whether public or private.
All details of plan.
Acquisition and disposal of land under Tamil Nadu Town and Country Planning Act
The provisions related to the acquisition and disposal of land are given under Chapter IV of the Act. According to Section 36 of the Act, any land reserved under the regional plan, master plan, development plan or new town development plan, can be acquired as per the provisions of the Land Acquisition Act, 1894. In order to purchase or acquire such land, the concerned planning authority will enter into an agreement with the concerned person or make an application to the government to acquire the land. If the value of land exceeds rupees fifty thousand the concerned planning authority will not enter into any agreement without the prior approval of the government. This is given under Section 37 of the Act.
Further, Section 38 provides that if there is no declaration regarding the land that is reserved, allotted, or designated under any plan within 3 years of the publication of a notification in the gazette or such land is not acquired, it will be deemed to be released from such a reservation, allotment, or designation. The Act, under Section 39 provides a right to compensation to a person whose land has been injuriously affected by any provisions related to any of the plans made under the Act.
Control of development and use of land under Tamil Nadu Town and Country Planning Act
Section 47 provides that after the development plan has come into force, no person will be allowed to use the concerned land except the state government, central government or local authority. They are also authorised to carry out any development in that area according to the development plan. If any person wants to carry out any development on a land other than that in the planning area, he must take the permission of local authority by giving an application in writing containing the particulars as prescribed (Section 47A). The local authority, before giving any permission, must obtain prior concurrence of the director, which is necessary in case of wetlands along with prescribed fees.
According to Section 49, if a person other than State or Central Government or local authority wants to carry out the development of any land or building on or after the date of publication of resolution under Section 26, will make an application to the appropriate planning authority. The authority while granting or refusing the permission must consider and also provide reasons for refusing to grant such permission:
Purpose of application or permission.
Suitability of place.
Future development and maintenance of the area.
Section 50 further provides that the permission granted by the authority will be for a period not exceeding three years. However, before expiry of the said period, it can be extended to a period not exceeding three years by making an application in this regard. If the authority is of opinion that it is necessary to revoke or modify the permission granted for such development, it may do so after giving the concerned person an opportunity of being heard as given under Section 54 of the Act. The planning authority has the power to remove an unauthorised development and the power can be exercised according to Section 56 and 57 respectively.
Development charges under Tamil Nadu Town and Country Planning Act
Every planning authority according to Section 59 of the Act has to levy charges on the use of land or buildings or for their development for which permission is to be taken under the Act. The rates of development charges are different depending upon the different planning areas. The charges will be applicable on every person who carries out any development or changes the use of any land or building. However, it would not be applicable to any land or building under the control of the state or central government. According to Section 60, the development charge will be classified as:
Industrial charge,
Commercial charge,
Residential charge,
Agricultural charge,
Miscellaneous charge.
In the case of the development of land, the rate of charge will be prescribed per hectare for the area and for the development of buildings, it will be according to per square metre for the floor. However, the rates must not exceed one lakh rupees per hectare for land and twenty-five rupees per square metre for buildings.
Any person who wants to carry out any development of any land or change its use for which permission is required under the Act, will apply to the appropriate planning authority or the executive authority or the local authority for the assessment of development charges according to Section 61. The power to collect such development charges vests with the local authority of the planning area as per Section 62. Section 63C provides that the government must constitute a fund named State Infrastructure and Amenities Fund in order to provide adequate infrastructure and basic amenities for the development and to ensure sustainable development of urban and rural areas.
Tribunal under Tamil Nadu Town and Country Planning Act
The provisions for the establishment of a tribunal under the Act are given under Chapter IX, Sections 71-75.
Constitution of the tribunal
According to Section 71 of the Act, the government will establish a tribunal under the Act to:
Decide disputes related to development charges.
Determine the amount of compensation and other questions related to the payment.
Decide other disputes arising under the Act.
It consists of one person as a judicial officer who must not be below the rank of subordinate judge. Further, the tribunal has the same powers as vested with a civil court, and the jurisdiction will be determined by the government. Section 72 provides that the tribunal can appoint officers and servants to carry out its functions with the approval of the government.
Powers of the tribunal
The tribunal has the power under Section 73 to inquire about every claim of compensation made under the Act and then determine the amount to be paid as compensation. While determining the amount of compensation, the tribunal will be guided by the Land Acquisition Act, 1894, as given under Section 74. The amount determined as compensation by the tribunal will be paid by the planning authority as:
Cash in instalments along with interest.
Saleable or transferrable promissory notes or other securities.
Partly in cash or partly in securities.
Section 75 provides limitations on the compensation. It provides that if a person is entitled to compensation with respect to land or building or any other provisions under this Act and any other Act, he will not be entitled to claim compensation in both Acts. Further, the planning authority can make an application to the government for withdrawal or modification of any development plan which gives rise to a claim for compensation within three months from the date when the order was made, and if the application is sanctioned by the government, the order of compensation will be cancelled. However, this will not bar the owner of property which is injuriously affected from claiming any compensation because of such a modified development plan under the Act.
Appeals under Tamil Nadu Town and Country Planning Act
The provisions related to appeal are given under Chapter X. The Act provides for three types of appeal:
Appeal to the director.
Appeal to the tribunal.
Appeal to the prescribed authority.
Appeal to the director
Section 76 of the Act deals with appeal to the director. It provides that any aggrieved person having any objections against the order of the planning authority can prefer an appeal to the director within two months from the date of such order. However, the director can admit an appeal after the expiry of said period if there is any sufficient cause for the delay. No appeal will be preferred if the appellant has not paid the development charge due to him. The director can pass the following orders:
For development charges:
Confirm, reduce, enhance or annual such assessment.
Set aside the assessment and direct the authority to pass a new order in this regard.
Any other relevant order.
For any other order, the director can cancel or vary such an order.
The director can also pass an interlocutory order.
He can also award costs which are to be paid either through the fund account or party to appeal.
Appeal to the tribunal
Any person aggrieved by the order of the director can prefer an appeal to the tribunal within two months from the date of such an order. The appeal must be preferred in a prescribed manner and upon payment of fees, which must not be more than two hundred fifty rupees. The tribunal can pass the same orders as that of the director after giving the appellant an opportunity to represent. If there is any change in the order or decision against which the appeal lies as a result of the appeal, the tribunal can direct the planning authority to amend such order or decision and if any amount is overpaid by the appellant, it shall be refunded to him without any interest. The tribunal can also pass interlocutory orders and award costs.
Appeal to the prescribed authority
According to Section 79 of the Act, any person aggrieved by the planning authority can prefer an appeal to the prescribed authority within two months from the date of such order but the prescribed authority can admit an appeal if the said period has expired only if there was sufficient cause for the delay. It can pass any order which it thinks is fit and the decision of the prescribed authority will be final. It can also pass interlocutory orders and award costs.
Penalties given under Tamil Nadu Town and Country Planning Act
Section 83 of the Act deals with general provisions about the penalties mentioned in Schedule 1. Any person who does the following will be punished with a fine as per the amount mentioned in Schedule 1:
Contravenes any provision of the Act mentioned in Schedule 1.
Contravenes any rules made under the sections mentioned in the schedule.
Fails to comply with any direction given to him lawfully or any requisition made lawfully upon him.
Any person who is convicted earlier and contravenes the provisions mentioned in Schedule 2 or continues the contravention or does not comply with the directions will be punished for each day of contravention, which will not be less than twenty five rupees and not more than fifty rupees.
Section 84 further provides penalties if a person fails to comply with the summons, requisites, etc. and refuses to give information, with imprisonment up to six months and fine which will not be less than fifty rupees and a maximum of a thousand rupees. According to Section 86, if a person commits an offence for the first time under the Act, he or she will be punished with a fine that will not be less than five rupees and not more than fifty rupees. For the second time, he will be punished with a fine ranging from twenty five rupees up to two hundred rupees. Section 87 deals with offences committed by companies.
Power of government under Tamil Nadu Town and Country Planning Act
The government can exercise the following functions under the Act:
Power to call for records
The government has the power to call for any record of any authority or officer with respect to any proceeding, except those where an appeal lies, under the Act and examine the same regarding its correctness, regularity, and propriety of decision and can pass the necessary order according to Section 90 of the Act. However, no prejudicial order will be passed by the government against any person unless he has been given an opportunity to represent himself.
Power to delegate
The government can also delegate its power to any authority or officer under the Act, as given under Section 91. According to the section, the government or the director can delegate their powers to any officer except the power of the government to make rules and regulations under the Act and the power of the director to hear appeals under the Act. However, the exercise of delegated power by the officer will be subject to various conditions and restrictions.
Power to issue orders and dissolve a planning authority
The government can issue orders and directions to the subordinate officers under Section 92. It can also dissolve any planning authority if the purpose of constituting such authority is fulfilled and it is unnecessary to continue it, according to Section 112 of the Act. The following are the effects of such dissolution:
All the funds, properties, and dues that were vested with the planning authority will now vest with the government.
All their liabilities will be enforceable against the government.
All the functions of planning authority, if left for realising the properties and funds, will be discharged by the government.
Power to make rules
The government can make rules and regulations regarding the following (Section 122):
Powers and functions of the board and authorities under the Act.
Term of office, conditions of service, and filing of vacant seats by members of the board and planning authorities.
Qualifications and disqualifications of members of the board.
Time and place of meetings of board and procedures to be followed therein.
Powers and duties of the director.
Manner in which representatives of the local authority will be nominated.
Control and restrictions regarding the appointment of officers under the Act.
Time frame within which the government or director has to approve or modify any development plan.
Form and contents of a plan made under the Act.
Procedure to be followed in appeals, along with a fine.
Manner of serving the acquisition notice.
Procedure for levying the development charge.
Calculation, assessment, and collection of development charges under the Act.
Form and manner in which the budget will be submitted by the planning authorities, along with the date of submission.
Form of annual statements of accounts and balance sheet to be submitted by planning authorities and annual report to be submitted by the board.
Procedure to be followed by the planning authority in case the owner makes any default or delays the work of improvement.
Manner in which all the documents and necessary plans will be made under the Act by the planning authorities.
Procedures to be followed by the tribunal etc.
Power to make regulations
The government has the power to make regulations regarding:
Time and place of the meeting of planning authority, procedures to be followed in the transaction of business, and quorum of the meeting.
Powers to be exercised by officers and servants of the planning authorities.
Salaries, allowances, and terms and conditions of service of such officers and servants.
Terms and conditions for the continuous use of any land other than that in development plans.
Maintaining minutes of the meetings of planning authorities.
Manner in which any investment or payment has to be done on behalf of the planning authority and the person who will be entitled to do so.
Money required for the expenditure of expenses by the planning authority.
Maintenance of proper accounts.
Duties of police officers and village officers
According to Section 96, the following are the duties of a police officer under the Act:
To cooperate with the planning authority in order to enforce the provisions of the Act.
To communicate the commission of any offence to the proper officer or servant of the concerned planning authority without any delay.
To assist the planning authority or their officers lawfully if asked.
The police officer not below the rank of head constable has the power to arrest a person committing any offence if he refuses to provide his name, address, and other necessary information when asked, according to Section 116.
Further, the duties of village officers, village headmen, village accountants, and village watchmen are as follows (Section 97):
To prevent the destruction, alteration, removal, or displacement of any mark showing the boundary or control of planning authority on the property.
To report any such incident to the nearest planning authority or its officer or servant.
Funds to be used for the purpose of Tamil Nadu Town and Country Planning Act
The government can constitute a fund named the State Town and Country Planning and Development Fund under Section 64 in order to carry out the purpose of the Act. The money for this fund will be allocated from the consolidated fund of the state. It will be granted as loans to the planning authorities to perform the functions mentioned in the Act, including:
Preparation of development plans.
Execution of such plans.
Any other purpose incidental to the above purpose.
Further, Section 65 provides that every planning authority must maintain a separate fund called as planning authority and development fund account. Every local authority has to contribute ten percent of its general fund to such a fund of the planning authority. Further, all the development charges collected under this Act will be credited to this fund. Section 67 provides that the money of the fund will be utilised:
To meet the administrative expenditures under the Act.
Cost of the acquisition of land for development.
To meet expenditures for the development and related works.
Other expenses as required by the planning authority and government.
The planning authority is also required to make the budget every year, and provide the estimated expenditure under the Fund account, and submit the same to the government according to Section 68. The government will either approve the budget with or without modifications or ask the planning authority to make the necessary modifications. According to Section 69, every such authority has to maintain proper audits and accounts and prepare annual statements of accounts, which also include the balance sheet. Their account will be audited annually by the auditor appointed by the government in this regard. The board is required to make an annual report every year and submit the same to the government as per Section 70 of the Act.
Conclusion
The Act specifically deals with town and country planning in the State of Tamil Nadu, and hence, the power vests with the state government to make any rules and regulations to enforce the provisions of the Act. The objective of the Act is clear, i.e., to develop the rural and urban areas in the state and make plans for the same accordingly. It also provides planning authority for the metropolitan area of Chennai and its development. Such Acts contribute to the development of the nation by focusing on the development of the state. It is necessary to have such legislation in every state so that each state can focus on the development of its area for the benefit of the public and the country at large.
The Act also provides a separate mechanism and set of authorities to deal with the development and regulation of rural and urban areas. Further, a separate tribunal has also been established to deal with any dispute arising under the Act. This helps reduce the burden on the judiciary and provides for speedy justice. This Act can be an inspiration for other states to enact similar legislation in their state for the betterment of their people and area and work towards development and growth.
Frequently Asked Questions (FAQs)
Can the government be sued under the Act?
No, the government cannot be sued under the Act. Section 102 of the Act provides that no suit would be made against the government for any act done in pursuance of this Act.
Which Act has been repealed by the enactment of the current Act?
The 1971 Act repealed the Tamil Nadu Town Planning Act of 1920.
What do you mean by planning area under the Act?
According to Section 2(30), any area that is declared as a regional planning area, local planning area or site for a new town is known as a planning area.
Who will decide the disputes between planning authorities?
According to Section 114, if there is any dispute between the planning authorities regarding any matter under the Act and they are not able to settle it by themselves, the government will take cognizance of such dispute and decide the matter, and the decision taken thereof by the government will be final.
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This article has been written by Shruti Kulshreshta and Prithviraj Dutta. The difference between Ultra Vires and the Doctrine of Repugnancy has been discussed, following which a comparison in the Constitutional context between inconsistency and repugnancy has been made. Emphasis has been put on delineating the sources of concurrent jurisdiction in India. Next, the constraining factors related to Presidential assent under Article 254(2) of the Constitution have been discussed. Also, focus has been put on understanding the Doctrine of Repugnancy in the political context with reference to the farm laws. After this, the reason for the Central authority being given superior power and authority over the state legislatures has been discussed in detail. Finally, the Doctrine of Pith and Substance in relation to the Doctrine of Repugnancy has been laid emphasis on. Reference to important case laws has been made throughout the entire article to understand the practical application of the Doctrine of Repugnancy.
Table of Contents
Introduction
The Constitution of India, the supreme law of the nation, has empowered the Central and the State Government to enact laws by virtue of various Articles read with Schedule VII. Black’s Law Dictionary defines repugnancy as inconsistency or contradiction between two or more parts of a legal instrument. In a system that divides its law-making power between the Centre and the States, an inconsistency can arise between the laws made by the Centre and those made by the State. The Doctrine of Repugnancy was introduced in the Constitution to resolve such situations.
The word ‘repugnancy’ is commonly taken to mean inconsistent or incompatible. A situation of repugnancy between two laws arises when there is an inconsistency or an opposition present between them or when there is the presence of such inconsistency between two or more clauses of the same deed, statute, or contract.
The Indian Constitution is an amalgamation of unitary and federal characteristics. Due to its federal nature, conflicts can often arise between the centre and the ctates regarding the scope, extent, and distribution of their powers. Article 254 of the Indian Constitution comes into application at this time as it helps to resolve the conflict arising between the central legislative authority i.e., the Parliament and the state legislative authorities. This is with respect to law-making powers under List III of the Constitution, i.e., the Concurrent List. The Doctrine of Repugnancy aims to resolve these conflicts.
Meaning of doctrine of repugnancy
Article 254 of the Indian Constitution establishes the doctrine of repugnancy in India. Before getting to this doctrine, it is quintessential to understand the legislative scheme and the Centre-State relations set out by the Constitution.
Article 245 empowers the Parliament to make laws for the whole or any part of India and the State legislature to make laws for the whole or any part of the State. It also states that a law made by the Parliament shall not be deemed invalid due to its extraterritorial application. Further, Article 246 provides the subject-matter of laws that can be made by the Parliament and Legislature of the States.
The Parliament has exclusive powers to make laws for all matters given in the Union List or List I of the Schedule VII of the Indian Constitution.
The Legislature of the State has powers to make laws for such State for all matters given in the State List or List II of Schedule VII.
Both the Parliament and the State Legislature have powers to make laws for all matters listed in the Concurrent List or List III of the Seventh Schedule.
The Parliament is empowered to make laws relating to any matter for any part of the territory of India, not included in a State, notwithstanding if it is enumerated in the State List.
Repugnancy means a contradiction between two laws which when applied to the same set of facts produce different results. It is used to describe inconsistency and incompatibility between the Central laws and State laws when applied in the concurrent field. The situation of repugnancy arises when two laws are so inconsistent with each other that the application of any one of them would imply the violation of another.
The doctrine of repugnancy, in accordance to Article 254, states that if any part of State law is repugnant or conflicting to any part of a Central law which the Parliament is competent to enact, or to any part of a law of the matter of List III, then the Central law made by the Parliament shall prevail and the law made by the State legislature shall become void, to the extent of its repugnancy. While considering this doctrine, whether the central law is passed before or after the State law is immaterial. Hence, this is a principle to ascertain that when a state law becomes repugnant to the Central law.
Repugnancy means a contradiction between two laws that, when applied to the same set of facts, produce different results. It is used to describe inconsistency and incompatibility between the central and state laws when applied in the concurrent field. The situation of repugnancy arises when two laws are so inconsistent with each other that the application of any one of them would imply the violation of another.
The doctrine of repugnancy, in accordance with Article 254, states that if any part of state law is repugnant or conflicting with any part of a central law that the Parliament is competent to enact or with any part of a law in the matter of List III, then the central law made by the Parliament shall prevail and the law made by the state legislature shall become void, to the extent of its repugnancy. While considering this doctrine, whether the central law is passed before or after the state law is immaterial. Hence, this is a principle to ascertain when a state law becomes repugnant to the central law.
Judicial interpretation of doctrine of repugnancy
One of the landmark judgments concerning this doctrine is M. Karunanidhi v. Union of India (1979). In this case, a constitutional bench of the Apex Court considered the question of repugnancy between a law made by the Parliament and a law made by the State legislature. It was observed that the following conditions should be satisfied for the application of the doctrine of repugnancy:
A direct inconsistency between the Central Act and the State Act.
The inconsistency must be irreconcilable.
The inconsistency between the provisions of the two Acts should be of such nature as to bring the two Acts into direct collision with each other and a situation should be reached where it is impossible to obey one without disobeying the other.
The Hon’ble Court also laid down some propositions in this respect. For the application of the doctrine of repugnancy, two enactments must contain provisions that are so inconsistent that they cannot stand together in the same field. Repeal by implication cannot be done unless there is a prima facie repugnancy in the enactments. If two enactments exist in the same field and there is a possibility for both of them to operate without colluding with each other, then this doctrine is not attracted. When there is an absence of inconsistency but enactment in the same field creates distinct offences, the question of repugnancy does not arise.
Another landmark judgement is Government of Andhra Pradesh v. J.B. Educational Society (2005), where the Court observed that the judiciary must interpret legislation made by the Parliament and the State Legislature in such a way that the question of conflict does not arise or can be circumvented. However, if such a conflict between laws is unavoidable, then the Parliamentary law shall prevail. Since List III gives equal competence to both the Parliament and the State Legislatures to enact laws, the highest scope of a conflict exists here. Again, the Court should interpret laws to avoid the conflict or else follow the manner of resolution iterated in Article 245. Clause (2) of Article 254 deals with a situation where the State legislation, having been reserved and having obtained the President’s assent, prevails in that State; this is again subject to the proviso that Parliament can again bring a legislation to override even such State legislation.
The case of Hoechst Pharma Ltd. v. State of Bihar(1983) discusses the effect of Clause (2) of Article 254. It was observed that the assent of the President for a state law that is repugnant to a Central law for a matter related to a concurrent subject is important as it results in the prevailing of the State law in that particular State, thereby overriding the application of the Central law in that state only.
A normal reading of Article 254 would suggest that it has been phased in such a way as to make it applicable to all cases of repugnancy between the Central Law and the law of the State Legislature. This law does not specifically state that the conflicting laws of the Centre and State Legislatures should only belong to the Concurrent List.
Whether a statute falls under one of the entries of the concurrent list or not is not the main issue regarding Article 254(1). The main issue always is whether the Central Law comes in conflict with the State Law. In Kanaka Gruha Nirmana Sahakara v. Smt. Narayanamma, (2002), the Supreme Court clarified that for the application of Article 254(1), it is essential that there is repugnancy between the central and state laws. If there is a void found, then the State law would only be void to the extent of repugnancy.
When repugnancy has to be ascertained, whether the Parliament intended to lay down an exhaustive code regarding the subject that would replace the State law. It has to be ensured by the Court that the laws of the Centre and the State are so inconsistent that it would not be possible for them to stand together, and therefore they must be repealed by implication.
Tests for determining repugnancy
The principles of repugnancy have been applied under the Australian Constitution and have been borrowed by analogy for their application in India. Following Australian precedents, the Court in the case of Deep Chand v. State of Uttar Pradesh observed that repugnancy between two enactments can be identified with the help of the following three tests:
Whether there is a direct conflict between the two conflicting provisions;
Whether the Parliament intended to lay down an exhaustive enactment on the subject-matter and to replace the law made by the State legislature; and
Whether the law made by the Parliament and that made by the State legislature occupies the same field.
Occupying the same field
This test is in close relation to the exhaustive code test for identifying repugnancy between two enactments. If the Central government has enacted a law with the intention of occupying the whole field, then it would not be fit for the State law to legislate in the same field.
In Zaverbhai Amaidas v. the State of Bombay (1954), a convict pleaded that he was convicted by a court having no jurisdiction. According to the state law, the offence committed by him—that is, transporting food grains without a permit—attracted imprisonment for a term of 7 years. On the other hand, the Central law prescribed the punishment of imprisonment for a term of 3 years for the offence committed by him. An additional provision in the Central law was that the punishment could be increased to 7 years if the person was found possessing double the permitted quantity of food grains. The convict argued that he should have been governed by the provisions of the Bombay Act and not the Central Act, which would render the decision of the court a faulty one, and without jurisdiction, as the Magistrate who punished him could sentence him to imprisonment of only up to 3 years. The occupation of the field of both laws was observed, as seen whether they occupy the same field or not. The Supreme Court held that both laws occupied the same field and could not be split up. Hence, the State laws were held to be void and the Central law prevailed as per the doctrine of repugnancy.
All about Article 254 of the Indian Constitution
The clauses of Article 254 of the Indian Constitution are as follows-
(i) The first clause of Article 254 states that if any part of any law made by the legislatures of the State is in conflict with any part of the law made by the Parliament in relation to the powers of the Parliament in the Concurrent List, then, unless stated by Clause (ii), the law made by the Parliament prevails irrespective of whether it was passed before or after the State law.
(ii) The second clause of Article 254 of the Indian Constitution states that if a law made by the State Legislature contradicts an earlier law made by the Parliament, then the state law takes precedence as long as it has been sent for review and followed by the approval of the President. Precedence only takes to the extent of repugnancy that the law creates
Legislative relations between Centre and State
Article 254 of the Indian Constitution establishes the doctrine of repugnancy in India. Before getting to this doctrine, it is essential to understand the legislative scheme and the Centre-State relations set out by the Constitution.
Article 245 empowers the Parliament to make laws for the whole or any part of India and the state legislature to make laws for the whole or any part of the state. It also states that a law made by Parliament shall not be deemed invalid due to its extraterritorial application. Further, Article 246 provides the subject-matter of laws that can be made by the Parliament and Legislature of the States.
The Parliament has exclusive powers to make laws for all matters given in the Union List or List I of the Schedule VII of the Indian Constitution.
The Legislature of the State has powers to make laws for such a state for all matters given in the State List or List II of Schedule VII.
Both the Parliament and the state legislatures have powers to make laws for all matters listed in the Concurrent List or List III of the Seventh Schedule.
The Parliament is empowered to make laws relating to any matter for any part of the territory of India not included in a state, notwithstanding if it is enumerated in the State List.
Power of Parliament to make laws on state-subject
In National interest
Article 249 of the Indian Constitution has provisions in relation to the authority that the Parliament has to make laws for issues on the subject matter mentioned in the State List (List II). These laws are related to issues that concern the entire nation.
If a resolution is passed by the Council of States, or the Rajya Sabha, and is supported by at least 2/3rds majority of its members or more that are present and voting in such a scenario, the Council of States can declare the resolution to be extremely crucial, that it is of national interest, and that it needs addressing, and thereafter, the Parliament is allowed to legislate on matters that are under the powers of the State Government in the State List.
If a resolution has been issued, then such a resolution would stay in effect for a duration that would not exceed one year. If any continuation of such a resolution is made, it will continue for one more year; otherwise, it will cease to be in force. The resolution cannot be extended for more than one year unless another resolution has been passed for that purpose. Otherwise the resolution would become inapplicable.
If the Parliament passes a resolution on a provision that it would normally have been incompetent to do so, then such a resolution would cease to exist after a period of six months after the validity of the resolution has reached its limit. This provision, however, does not apply to certain things. This provision will remain ineffective for things done before the defined expiration date.
In emergency
Article 250 states that if there is a proclamation of an emergency in effect, the Parliament becomes a competent authority to make laws for the whole or any part of the state. Further, a law made in response to the declaration of an emergency will continue to stay in force for a period of six months after the end of the emergency.
State’s power to legislate after emergency situation ceases to exist
The legislature of the state have been granted certain authority and special powers to make laws for that particular state under the Indian Constitution. In line with this, Article 251 states that the powers mentioned in Article 249 and Article 250 of the Constitution cannot restrict the power of the state legislatures.
Article 249 and Article 250 give power to the Parliament to make laws for the state in certain exceptional situations. During this time, the law that is made by the state legislature during that time will remain invalid until the law of the Parliament is in effect. The moment the law of the Parliament reaches its expiration period after the exceptional situation ceases to exist, the law made by the State Legislature becomes effective.
Power of the Parliament to repeal State laws
There are some conditions under which the Parliament may repeal a law made by the State Legislature by enacting a subsequent law. The conditions are-
There should have already been a Central law on that matter in the Concurrent List
The state legislature came up with a law that was repugnant to the central law, after which it received the assent of the centre.
The Supreme Court made this point in the case of Ch. Tika Ramji & Others, Etc. v. The State Of Uttar Pradesh & Others (1956). The Parliament, in this case, has enacted a law after a state law in Uttar Pradesh that regulated the purchase of sugarcane. The Supreme Court stated in its decision that the Parliament could not repeal a state law if it was not repugnant to an earlier law made by the Parliament on the same matter in the Concurrent List.
In the case of Kannan Devan Hills Produce v. The State Of Kerala And Another, (1972), the Supreme Court gave its stance on the possibility of a dispute between a Parliamentary law and a law made by the State Legislature. The Court stated that the State was competent enough to legislate on Entry 18 of the State List (rights in or over land, land tenures, relation of the landlord with that of the tenant, land improvement and agricultural loans, etc.), and the power could not be denied on the reasoning that it had some effect on an industry controlled under Entry 42 of List III (Acquisition and Requisitioning of Property).
Exceptions to the doctrine of repugnancy
The purpose of Article 254(2) of the Constitution was to save those state laws that fell under the Concurrent List. In the case of T. Barai v. Henry Ah Hoe and Another (1982), the Court in its decision that Article 254(2) was an exception to the rule laid down in Article 254(1).
Article 254(2) provides a way for the state law to stand repugnant and void due to the presence of a central law on a matter related to the Concurrent List. It relaxes the rule of repugnancy as laid down under Article 254(1).
Under usual circumstances, the central law would always reign supreme over the state law. The state law becomes void in such a case. There might, however, arise some extraordinary circumstances where the state law might hold more importance than the central law. Article 254(2) gives an element of flexibility so that, under suitable circumstances, the State Law could be given precedence over the Central Law.
This clause states that if a law passed by the State is enacted on a matter enacted in the Concurrent List, and it contains provisions that are repugnant to the Central Law in a particular manner, then the law of the State prevails in the State concerned only if it has obtained presidential assent. The concerned state law has to be kept reserved for consideration by the President, and it is essential that his assent is given. After the assent of the President, the State law becomes superior to the Central law only for that particular state and continues to operate in that state. It is also a requisite that both matters be on a subject in the Concurrent List.
The Supreme Court explained the effect of Article 254(2) in the case of Hoechst Pharmaceuticals Ltd. And v. State Of Bihar And Others, (1983) that the result of obtaining the consent of the President regarding a law made by the State Legislature on a matter related to the Concurrent List would be that the law of the state would prevail over the law made by the Parliament in that particular state only. However, the centre would always have the final say on whether the state Law would hold precedence over the state laws. The state law would prevail over the central law only to the extent of the inconsistency with the law of the centre. The State Law would not override the entire of the central Law. This was held by the court in the decision ofPandit Ukha Kolhe v. The State Of Maharashtra, (1963).
Importance of presidential assent
The assent of the President is not just a mere formality. It is limited only to the specific purpose for which it has been sought and given. The State Law becomes void with respect to the Central law unless that particular conflict was brought before the President for his assent. Thus, the assent of the President does not confer irrevocable immunity upon the law of the State Legislature from the operation of the doctrine of repugnancy. This was stated by the Supreme Court in the case of Grand Kakatiya Sheraton v. Srinivasa Resorts Ltd. & Ors, (2009).
Application of Article 254(2)
The operation of the sub-clause is applicable under two particular conditions:
There has to be a valid central law on the same subject as that of the state law and in the same field in the concurrent list to which the central law relates.
The State Law has to be repugnant to the law made by the Centre.
In the case of Krishna District Co-Operative v. N.V. Purnachandra Rao & Ors (1987), it was stated by the Supreme Court that the state law that had been enacted after the Central law and had received the assent of the President would hold precedence over the law made by the Parliament, in case there was a repugnancy between the two laws. In a scenario where the laws are not repugnant to each other, they would continue to co-exist.
In the case ofM.P. Shikshak Congress & Ors v. R.P.F. Commissioner, Jabalpur (1998), the Supreme Court in its judgment stated that Article 254(2) would be applicable only in cases where the Central law was enacted before the law of the State Legislature. Even in a scenario where the State law receives the assent of the President, the state law would not become applicable because the law of the Parliament was enacted after the law by the State Legislature. This sub-clause would not be applicable in a scenario where the state law becomes repugnant to the parliamentary law that has been enacted after the law of the State Legislature.
When Article 254(2) would not be applied
It is also essential to understand that Article 254(2) would not be applicable if the Central Law and the acts of the State Legislature operate in different fields. This can be understood through the case of Official Assignee, Madras v. Inspector-General, (1983). The Central Act in this case concerned insolvency under Entry 9 of List III, and the act of the State Legislature was related to Stamp Duties under Entry 44 of List III. It was decided that no stamp fees would be payable on the sale deed that was executed by the Official Assignee.
Another important Supreme Court judgment was Zaverbhai Amaidas v. The State Of Bombay, (1963) where the Court stated that the important thing to take note of was whether the legislation enacted by the State and the Centre were of the same matter. In a scenario where the later legislation is distinct from the subject of the earlier legislation but is of cognate and allied character, then Article 254(2) would have no application.
Constraining factors for validation through presidential assent
Recent times have seen the frequent use of Article 254(2) of the Indian Constitution. This is because the States try to bypass the central legislative authority, i.e., the Parliament. Under a situation where the State uses Article 254(2) to pass any law that is in conflict with the Central Law, there is some procedure that has to be followed. This is divided into two stages:
First comes the prior approval stage, where the State sends the Bill to the Central Government for approval. This is not mandated by the Constitution.
Second is the after-approval stage, whereby the State sends the Bill for the assent of the President, which is mandated by the Constitution. There are a few requisites by the State to be followed, although this is not uniformly followed by all the States.
These include providing five copies of the Bill and providing extracts from proceedings of the State Legislature on the Bill. The extent of repugnancy of the State Law with that of the Central Law has to be explained in the forwarding letter. This has always been a matter of debate between the Centre and the State.
The frequent use of Article 254(2) by the state law to override the Central Law to meet its political ends is always a matter of controversy. In Kaiser-I-Hind Pvt. Ltd. And Ors v. National Textile Corporation (2002), the Supreme Court analysed this. The issue that was raised before the Court was whether the Bombay Act No. LVII of 1947 had received the assent of the President under Article 254(2) of the Constitution for all the Central laws that it was repugnant to, or only those laws of the Centre for which the assent was specifically sought from the President.
The Constitutional Bench of the Supreme Court held that there are two essentials for obtaining the assent of the President under Article 254(2). The first step is that the law has to be received for consideration by the President and second, it has to receive the assent of the President. The Court emphasised that consideration for the reservation of the President means that the President has actively applied his mind to the repugnancy that has been pointed out by the Legislature of the State and the reasons for enacting a law that was repugnant. This could either mean that all the Central Laws that were repugnant to the State Laws were brought to the attention of the President or that the conflicting provisions present in the State Law were specified in such a way that the President could make an informed decision regarding the operation of the State Law that was repugnant. In this case, since the State Legislature had only mentioned certain Central laws that were repugnant to the Bombay Rent Act, 1947, the Court held that the Act would be void to the extent of repugnancy with the Central Laws that had not received the assent of the President.
Although this particular judgment stated that pointed attention had to be drawn towards the President between the Central Law and the law of the State Legislature, Article 254(2) does not make it a requisite for specific provisions to be brought to the President’s attention. Contrary to this, it is only essential that the State Legislature indicate specific laws made by the Parliament that are repugnant to the laws made by the State Legislatures. This would give the President room to consider all relevant information before granting his final assent. As paragraph 27 of the judgment clarified, it would not be important if the assent was rightly or wrongfully given, but if the President considered the nature and extent of the repugnancy, then it would mean that it could be applicable to that state.
In Rajiv Sarin & Anr v. State Of Uttarakhand & Ors, (2011), the Supreme Court clarified, relying on Kaiser-I-Hind (supra) judgment. The Supreme Court emphasised that if the assent of the President is sought for specific provisions, the assent would apply only to those provisions, even if a general assent was given by the President.
However, in the case of Yogendra Kumar Jaiswal Etc. v. State Of Bihar, (2015), the Supreme Court in its decision, upheld the validity of The Orissa Special Courts Act, 2006, although the assent was requested for specific provisions only. The reason for this is that the Bill was sent for consideration by the President, and he gave general assent to the entire Bill. Therefore, we can conclude from this that if the complete State Law and Central Law are placed before the President for his approval, the presumption is made that the President apply his mind to the repugnancy between the provisions of both the Parliament and the State Legislature before giving his assent.
A contrary decision was given by the Delhi High Court in the decision of Delhi High Court Bar Association & v. Govt of NCT of Delhiv, (2013). The Court stated that merely forwarding copies of the Bill cannot lead to fulfilment under Article 254(2). The Court in this case stated that the State must meet the criteria of active application of the mind of the President by the placement of specific provisions of the State Law that are repugnant to that of the Central Law. In the process, the Court reviews the assent that has been granted by the President, and the Court also has to make sure that the President considers all the information and the materials before giving his assent. This had been explicitly restricted in Kaiser-I-Hind, as the courts are not in a position to adjudicate in a manner whether assent was given or if it was correctly given after proper examination of the repugnant laws and the reasons for repugnancy.
In the case of G. Mohan Rao v. The State Of Tamil Nadu, (2021), the contention that specific provisions of the State Legislatures were raised before the Supreme Court. The Court, in its decision, stated that only the conflicting laws had to be brought before Parliament and the reasons for the enactment of the repugnant law. The Court held that the scope for the assent of the President is limited. As a result, the courts could only determine if the necessary materials that are essential for the President to make an informed decision were provided by the State Legislature.
To understand and analyse if the power of the President given for assent under Article 254(2) is justified or not and if this power is subject to judicial review, and if so then to what extent, then the decision laid down by the Court in the case of Gram Panchayat Of Village v. Malwinder Singh & Ors, (1985) has to be looked into. The Court in its judgment gave the decision that the assent that the President gives is not just “an empty formality”. The President has to give his assent after considering the reasons for putting the State Law before him above the Central Law. Contrary to this, it was stated in the case of Hoechst Pharmaceuticals Ltd. And v. State Of Bihar And Others, (1983) and Kaiser-I-Hind, the Court held that the assent of the President was not justiciable and could not be made subject to the power of judicial review by the Courts.
Thus, it can be concluded that two requirements have to be fulfilled for a State Law to get a valid assent from the President. The first is that the entirety of the State Law for which the assent is requested has to be placed before the President. Secondly, the reasons for the introduction of a repugnant state law have to be made clear to the President. If the court examines the power of the President beyond these two requirements, it would result in judicial review of the powers of assent granted to the President which have not been permitted by the Constitution. As per the decisions given in Kaiser-I-Hind and the more recent decision of G. Mohan Rao, the Supreme Court has clarified that the President’s assent to a law made by the State Legislature would not be invalidated only because the specific provisions that are repugnant to the Central Law were not brought before the President. The reason for this is that it would entail a judicial review of the assent given to the President.
The application of the doctrine of Repugnancy comes into use when there is a direct conflict between the statutes that have been enacted by the Parliament and the State Legislatures on matters contained in the Concurrent List, and thus there arises repugnancy between them. A scenario of repugnancy arises when the two laws occupying the same field are inconsistent in all ways and have totally irreconcilable provisions. This was stated in the case ofDeep Chand v. State of Uttar Pradesh.
Occupied field
In the case of Bharat Hydro Power Corp. Ltd. & Ors v. State Of Assam & Anr, (2004), and also in the case of Central Bank Of India v. State Of Kerala & Ors, (2009), the Supreme Court stated that every possible effort has to be made to reconcile the central and state statues and to construe them in a manner so that they are no longer repugnant to each other. If the two statutes are not operating in the same fields without any encroachment, then there would not be any repugnancy between the two provisions.
Centralization and the political rationale for union precedence under Article 254
There are many reasons proving that the legislative authority in India is highly centralised. These are-
Single Citizenship – In India, there is no concept of state citizenship. Every citizen living in India is considered to be a citizen of India, irrespective of the State in which he resides.
Changing the names and the boundaries of States – Article 3 of the Indian Constitution gives the Central authority the power to change the name as well as the boundaries of the States.
Single Unified Judiciary – The Supreme Court, High Court, and Subordinate Courts of India together form a single integrated and unified judiciary. To make sure that there is uniformity of laws, they have been placed in the Concurrent List.
Power of the Centre in case of Emergencies – The President of India has been given more powers in the case of an emergency arising in India. The powers of the President during an emergency have been covered under Article 352, Article 356, and Article 360 of the Indian Constitution.
Common All-India Services – To ensure the uniformity of administrative standards, the Constitution provides special provisions. These services include the IAS, IFS, IPS, IES, and many others.
Inequality of Representation when it comes to the Council of States – The states of India have not been given equal representation, although India has bicameralism. States with a larger population are given more seats than the States with a smaller population.
Appointment of Governors – The President appoints the Governor for all the states in India. In this way, the Union Government exercises control over the state legislative authorities.
Comptroller and Auditor General of India – Although the office of the Comptroller and Auditor General of India comes under the central government, his concerns not only include the auditing and accounting of the Central Government but also those of the states as well.
Centralised Electoral Machinery – The body of the Election Commission is appointed by the President. He is in charge of conducting elections for the Parliament as well as the Legislatures of the States.
Financial Dependency of the States on the Centre – When it comes to a federation, the states have to be self-sufficient. This is to ensure maximum autonomy. But in India, the states have to depend on the Centre for all developments. This is because the Centre provides grants to the States.
India is a federal state with unitary features. This is why India is known as a Quasi-Federal State. The Supreme Court, in the case of Kuldip Nayar v. Union Of India & Ors (2006), held that Federalism is a basic feature of the Indian Constitution of India. However, it is unique in India and has been tailored according to the needs of the citizens of India. A bit of a tilt has been made towards the Centre to ensure unity and integrity, as well as to serve the specific needs of the Country. Articles 245-255 of the Indian Constitution explain the legislative relations between the Centre and the States. These Articles analyse the scope and extent of the legislative powers of the Centre as well as the States. The Central authority, i.e., the Parliament has superseding powers when it comes over the State Legislatures.
The same concept is applicable when it comes to the preference provided to the Centre when it relates to the Doctrine of Repugnancy. As discussed before, India has the features of both a federal as well as a unitary state. However, it has been consistently observed that both the Centre and the State face conflict while making laws on matters related to the Concurrent List. In such a scenario, the union is always given more powers than the State in case a conflict arises or when the Doctrine of Repugnancy becomes applicable. The reason behind this is that the Centre is considered to be more powerful than the State Legislatures in formulating laws in a situation where repugnancy arises because the Centre is considered to be more competent with respect to the needs of all the citizens. Therefore, in most cases, the Central Law always prevails over the State law except for the exception stated under Article 254(2) of the Constitution, whereby, with the assent of the President, the State Legislatures can enact laws that would hold superiority over the central law in case repugnancy arises for that particular state only.
Inconsistency and repugnancy in comparative constitutional contexts
Delineating the sources of concurrent jurisdiction
The Concurrent List forms an essential part of the Constitution of India. This feature has been borrowed from the Australian Constitution. The purpose of the Concurrent List is to ensure that both the Centre and the State are in a position to legislate in matters of common interest. The concurrent list also helps ensure that there is no conflict between the laws that are made by the Union and State governments on these particular subjects.
The Australian Constitution, adopted in 1901, provides for three lists –
Commonwealth List – This list consists of subjects that are exclusively under the control of the federal government.
State List – This list consists of subjects that are exclusively under the control of the State Governments.
Concurrent List – This list consists of subjects that are shared by both the Central and State Governments.
The features of the Concurrent List that have been borrowed from the Australian Constitution are as follows –
Residuary Powers – The residuary powers in Australia are neither assigned to the Central nor the State Governments. These powers are in the hands of the federal government. In a similar way, the residuary powers of the Constitution rest with the Union and form a part of the Union List.
Division of powers – The powers between the central and state governments are divided according to the Constitution of Australia. Similarly, the Constitution of India divides powers between the central and the state governments. The Concurrent List includes those powers that both the Central and the State governments can legislate.
Uniformity – Uniformity in laws between the State and Central Governments is made by the Australian Constitution. The Indian Constitution also provides for uniformity of laws between the central and the state governments. Laws made by the Central Government prevail over laws made by the state if there is a conflict.
Joint Control: Joint Control over both the central and state governments is provided by the Australian Constitution. The Indian Constitution similarly provides for joint control over certain subjects by the Central and State Governments.
Amendment: The Concurrent List of the Australian Constitution can be amended through a special procedure, and this process of amendment is similar to that of India.
Therefore, the feature of the Concurrent List has been borrowed from the Australian Constitution. The Concurrent List came into force through the Government of India Act of 1935. The Government of India Act forms the basis of the Indian Constitution. The purpose of the Concurrent List was the distribution of powers between the Centre and the State.
Ultra Vires and repugnancy
Ultra Vires is a Latin term. It is a situation where the State exceeds its legislative powers. Ultra Vires envisages that any authority can exercise only as much power as is inferred from it by the Constitution of India. Intra vires is when the act of the authority falls within the ambit of its authority; ultra vires is when it falls outside of it.
Ultra Vires results in the invalidation of a law in a scenario where the power of the legislation exceeds that of the law. This law would no longer be able to affect the rights of any people in India. However, until the law is invalidated, it continues to remain effective and valid. There are two aspects of the doctrine of ultra vires: substantive and procedural. If there is a law that contains some valid and invalid parts that can clearly be demarcated, then the invalidated parts are left out and the valid parts continue to remain effective. However, if no such demarcation can be made, in such a scenario, the entire law has to go. Any person whose rights have been adversely affected by a piece of delegated legislation can directly challenge its validity in Court.
Ultra Vires operates to invalidate a law made by any legislature if the legislature goes beyond the powers assigned to it by the Constitution. In the case of Repugnancy, however, both legislatures are competent to make laws. If these laws are found to be inconsistent, then the laws that have been made by the State are void. The question of repugnancy arises only in a situation where the legislatures are competent to legislate with respect to the powers given in the Concurrent List. Ultra Vires holds a more fundamental position than repugnancy.
Doctrine of pith and substance in relation to the doctrine of repugnancy
Before getting into the relation of the doctrine of pith and substance with the doctrine of repugnancy, it is first essential that we understand the doctrine of pith and substance.
Doctrine of Pith and Substance
The Doctrine of Pith and Substance is concerned with determining the true nature of any law. This Doctrine refers to the fundamental nature of law. The doctrine of pith and substance focuses on the actual subject matter rather than its implications for other fields of legislation.
This doctrine is to identify and find out under which authority a piece of legislation belongs. This doctrine comes in handy and becomes applicable when a specific law is challenged on the grounds that one level of government has superseded its jurisdiction and has infringed on the exclusive jurisdiction of another government. The Doctrine of Pith and Substance found its origin in Canada in the case ofCushing v. Dupuy, (1880).
Article 246 and the Seventh Schedule of the Indian Constitution
Although not directly mentioned in the Constitution, the doctrine of pith and substance is covered under Article 246 of the Indian Constitution as well as the Seventh Schedule comprising the Union, State, and Concurrent Lists.
In a scenario where the competency of an enactment that has been made under the three lists has been questioned, this Article can be used.
Article 246 discusses the subject matter of the laws that have been enacted by the Central authority, i.e., the Parliament or the State Legislatures.
In cases where the subject matter of one list impacts the subject matter of another list, then the Court applies the doctrine of pith and substance. The Court uses this doctrine to assert whether some specific law relates to some specific issue that has been mentioned in one of the Lists or the other.
Importance of the Doctrine of Pith And Substance
The Doctrine of Pith and Substance becomes important because, while evaluating whether a certain law applies to a specific issue, the court considers the essence of the case. If the material fits into one of the Lists then the accidental encroachment of the law in such a scenario does not render the law invalid. This particular point was justified in the case of theState Of Bombay And Another v. F.N. Balsara, (1951). The Supreme Court in this case gave its support for the Doctrine of Pith and Substance. They stated that it is critical to determine the real essence as well as the character of the legislation so as to determine which List it belongs to. In this particular case, the Bombay Prohibition Act (1949) was challenged on the grounds that the Act had accidentally interfered with the import of liquor across customs borders, which was a central issue. The Court stated that the Act, in its essence, was a state issue despite the fact that it had encroached on a core, central topic. The Court upheld the law and stated that it was not null and void.
When it comes to the Indian context, the doctrine of pith and substance is important because of the following reasoning –
The Doctrine of Pith and Substance provides flexibility in the distribution of powers between the Centre and the States. The distribution of power is very rigid in nature. This doctrine was adopted because if every law encroached because the body creating it encroached upon the exclusive jurisdiction of another body and its law-making powers, in such a scenario, the law-making powers of the legislature would be severely limited.
This doctrine states that the entire legislation has to be reviewed in order to identify its real nature and character and determine which List it falls into. If the actual essence of the legislation and its character are justifiably and significantly within the powers of the body that enacted it, then the legislation would not be rendered invalid because it accidentally trespassed on the subject matter that has been assigned to another government body.
Doctrine of repugnancy and doctrine of pith and substance
Now, it can be observed that, based on the rule of pith and substance, if the Centre makes a law upon a subject in the Central or Concurrent List and the State makes a law on a matter in the State List, then in such a scenario, the question of Repugnancy does not arise. In the cases of A. S. Krishna v. State Of Madras (With Connected, (1956) and State Of Madras v. Gannon Dunkerley & Co, (1958), it was held by the court that the State law would not be held null and void if the law is enacted with respect to a matter in the State List. However, it would be void if it is enacted with respect to a matter on the Union List.
The Doctrine of Pith and Substance is utilised to settle concerns that originated from repugnancies that are caused by the legislation that has been enacted by the Parliament and the State Legislatures under Article 254 of the Constitution. In cases like this, if the encroachment is incidental or ancillary, then the legislation is considered valid. Otherwise, if it is found to be considerable, then the legislation would be found invalid.
In Vijay Kumar Sharma & Ors. Etc v. State Of Karnataka & Ors. Etc, (1990), the State of Karnataka enacted the Karnataka Contract Carriages (Acquisition) Act, 1976, under Entry 42 of the Concurrent List (Acquistiton and Recquisitioning of Property). According to this Act, the law nationalised contract carriage in the state. No licences could be issued to private carriers. The Motor Vehicles Act, 1988, was enacted under Entry 35 of the Concurrent List (Mechanically Propelled Vehicles, including those principles on which taxes on such vehicles are to be levied). According to this Act, the grant of licences could not be refused unless required.
The Supreme Court stated that if the doctrine of pith and substance could be applied to resolve a conflict between the Union and the State List, then there wasn’t any reason why the doctrine could not be applied to solve issues between the Central and State Legislatures on the Concurrent List. Sawant. J. stated that one must apply the Doctrine of Pith and Substance to resolve an issue that involves repugnancy under Article 254 of the Constitution. In a scenario where the pith and substance of the legislation are different, it means that they cover different subject areas.
The Supreme Court, in this judgment, stated that the Contract Carriages Acquistion Act is not repugnant to the Central Law, i.e., the Motor Vehicles Act, 1988. The validity of the Act was upheld by the Court. The court had, importantly, discussed the Doctrine of Pith and Substance and how to apply it to find repugnancy under Article 254 of the Constitution between laws that have been enacted by the Parliament and the laws that have been enacted by the State Legislatures.
The case of State Of Kerala & Ors v. M/S. Mar Appraem Kuri Co.Ltd. & Anr, (2012), was heard by a Constitutional Bench of five judges. The Bench stated that the question of repugnancy arises between the legislation of the Parliament and the State Legislatures when they are enacted with matters allotted in different fields in the Concurrent List. This is followed by an overlap, as a result of which conflict arises. In such a scenario, the legislation made by the central authority always dominates under Article 246(1) and Article 254(1) of the Constitution.
In cases where the Courts apply the doctrine of pith and substance, regard for the entire enactment has to be made. This would include the scope of its effects as well as the effect of its provisions. First, it has to be determined whether the legislature was competent enough to enact such a law. If the entire law is found to be ultra-vires then it has to be struck down, but if the question of repugnancy is related to one provision then the entire law is not declared void. The Parliament always holds domination over the State Legislature when it comes to legislation on matters in the Concurrent List, however, both Central and the State Legislatures would be allowed to enact on matters in the Concurrent List.
Political issues involving Article 254 with reference to the farm laws
The Supreme Court of India on the validity of the new Farm Laws
Rakesh Vaishnav v. Union of India
In Rakesh Vaishnav v. Union Of India (2021), a writ petition was filed in the Supreme Court by more than 85 farmers. They challenged the new farm laws that were enacted by the Central Government in September 2020. These were the Farmer’s Produce Trade and Commerce Act of 2020, the Farmers Agreement of Price Assurance, the Farm Services Act, of 2020, and the Essential Commodities Act, of 2020.
The Supreme Court was simultaneously hearing three sets of petitions-
Those petitions opposed the farm laws.
Those petitions were in favour of the farm laws.
Petitions of the residents of Delhi and surrounding areas. They complained that the protestors were blocking the roads and were infringing on their rights.
On 11th January 2021, a Committee was appointed by the Supreme Court. As stated by the website of the committee, the panel had held 12 rounds of consultations with various stakeholders. These included approximately 85 farmer groups, professionals, producers, organisations, academicians, and states, as well as private agriculture marketing boards.
This Committee originally consisted of 4 members. These were – Anil Ghanwat, Ashok Gulati, Bhupider Singh Mann, and Pramod Joshi. Bhupinder Singh Mann removed himself from the committee after receiving heavy criticism from the protesting farmers.
The Supreme Court wanted the Committee to submit its recommendations within two months of its first sitting. The Supreme Court opined that –
There was no power that could prevent the court from appointing a committee to resolve the dispute over the new farm laws.
The Supreme Court had the power to suspend legislation in order to solve the problem.
People who wanted a genuine resolution would go to the committee as constituted by the Court.
The Judiciary was different from politics, and the farmers had to cooperate.
How Article 254(2) of the Indian Constitution provides States the opportunity to negate Central Acts in relation to the Farm laws?
Former Presidnet Ram Nath Kovind had given presidental assent to the three farm bills:
The Farmers Produce Trade and Commerce (Promotion and Facilitation) Bill, 2020
The Farmers (Empowerment and Protection) Agreement of Price Assurance and Farm Services Bill, 2020
The Essential Commodities (Amendment) Bill, 2020
The Parliament had cleared the above mentioned Bills in the Monsoon Session. These particular laws were aimed at liberalising the agricultural sector while also allowing the farmers to sell whatever they produced anywhere in the country at a much better price. The Opposition that was led by the Congress was critical of the manner in which these Bills were passed and alleged that the Bills were passed unconstitutionally and in complete disregard for parliamentary norms.
Congress President Sonia Gandhi had advised the party-ruled states to explore the rarely used provision of Article 254(2) to negate the three Farm Bills of the Central Government that had received the assent of the President. This is because Article 254(2) allows a state law to prevail over a conflicting central law in some particular circumstances. However, the Congress led-state governments were in a highly unlikeable position of thwarting the implementation of the farm laws through Article 254(2), because getting Presidential Assent in this particular case was highly unlikely as needed by Article 254(2). This is because it is a rare circumstance where a State Bill is accepted by the President without the Centre’s approval of the same. In cases like this, where the Centre is opposed to the State made Bills, the President who works with the aid of the Council of Ministers, can refuse to give his assent. Therefore, it is the sole prerogative of the President whether to sign the State Bills or not.
Therefore, in a similar manner, the three Bills that were unanimously passed by the Punjab Government would to counter the three farm bills of the Centre would only be applicable if they got the assent of the President, which would be highly unlikely because of the above stated reasons.
The Prime Minister announced the takeback of the three farm laws in November 2021, due to widespread protests. Thus, in conclusion, it can be said that the central authority, i.e., the Parliament overrides the State Legislature in making any law in any of the subject matter of the Central and Concurrent Lists. In case of Presidential assent, the central law always holds precedence over the State Law.
Forum for People’s Collective v. The State of West Bengal
Facts of the Case
In the case of Forum For Peoples Collective v. The State Of West Bengal (2021), the Supreme Court has ruled out the constitutional validity of the WB Housing Industry Regulation Act, 2017 (WB-HIRA). The Bench consisted of Justice DV Chandrachud and Justice MR Shah. They heard the challenges on the ground that the WB-HIRA was heavily overlapping with and, in many cases, included identical provisions from the parallel Central Legislation: Real Estate (Regulation and Development) Act, 2016. Since both of these Acts dealt with subjects from the Concurrent List, the petitioner claimed that the enactment of the State – the WB-HIRA was constitutionally not permissible.
Issue
Was the Central and the State Law repugnant to each other?
Judgment
The rules of interpretation based on Article 254 were applied to determine repugnancy between Central and State Legislations. Any statute is considered repugnant if it contains contradictory provisions as another statute in the same subject area.
In its judgment, the court found that the enactment of the State was the same as that of the Central RERA. The WB-HIRA was ruled to be unconstitutional because both Acts covered the same subject matter, occupied the same field, and were without the assent of the President.
The RERA had come up with an aim of bridging the gap in information between the real estate sector and the consumer. According to J. Chandrachud, the sector lacked professionalism and standardisation. As a result, more robust legislation was an essential requisite that would be built on efficiency and transparency to benefit all parties and incentivize further investment. And therefore, it was opined that the vacuum that was left by the RERA due to its presence in the Concurrent List can be legislated by the State governments as long as it is in sync, incidental, and cognate to the authority of the Parliament.
In this case, the Court gave emphasis to Professor Nicholas Aroney – “Three Tests of Repugnancy” because the Australian Constitution recognised repugnancy in similar terms to the Constitution of India. Professor Aroney’s three tests of repugnancy were adjusted in the Indian context in the case of Deep Chand v. The State Of Uttar Pradesh (1959) by Justice K. Subba Rao.
Repugnancy between statutes can be established based on the following three principles:
The presence of a conflict between two provisions.
If the Parliament had an intention to lay down an exhaustive code in respect of the subject matter that would replace the Act of the State Legislature.
If the law that has been made by the Parliament and the State Legislature occupy the same field and are of the same subject area.
Conclusion
The effect of the application of this doctrine will make the State law void to the extent of repugnancy. As long as the Central law occupies the field, the State law is eclipsed. If, in case, the Central law is repealed, then the State law shall revive. The doctrine of severability also comes into application since if a State law is repugnant for a matter in the concurrent list, then only the repugnant part will be held void and the rest shall function normally, thereby, giving rise to severability. Article 254 proves that the Indian Constitution is both unitary and federal. This doctrine is quintessential for the Centre-State relations in the country.
Article 254 provides a good example of how both unitary and federal features can exist in the Indian Constitution. There have been various cases, as discussed above, that have shown the evolution of the doctrine of repugnancy over time. The doctrine of repugnancy becomes effective as it helps in determining which particular statue or part of the statue should give way to another. When a court is deciding a case, first it proceeds with the basic assumption in favour of the law’s constitutionality, and the burden to prove repugnancy is on that authority or person who brings forward such a challenge. The Court first tries to reconcile the repugnancy between the two laws. They do so by resorting to the law of harmonious construction so that both laws can co-exist and their scope of operation lies in different spheres unless the laws are totally similar. Since both the Central authority and the State Legislatures have the power to make laws on the Concurrent List, conflict is bound to arise and is unavoidable. It has been proved, through the applicability of the doctrine of pith and substance, that mere or accidental overlapping of one authority on the jurisdiction of another authority cannot be concluded as repugnancy. Laws that are resembling or superficial cannot be claimed to be repugnant, and the doctrine is not applicable in such cases.
The Doctrine of Repugnancy is extremely important for Centre-State relations when looked through the eyes of Centre-State relations. Article 254 of the Indian Constitution plays a determining role in deciding the laws between the central authority, i.e., the Parliament and the various State Legislatures. The Doctrine of Repugnancy puts emphasis on and brings out the federal aspect of the Constitution of India.
Frequently Asked Questions (FAQs)
What happens in a scenario where a law made by the State Legislatures is inconsistent with the law made by the Parliament the Concurrent List of the Indian Constitution?
According to Article 254(1) of the Indian Constitution, if any law made by the State Legislatures that have enacted in the Concurrent List is found to be inconsistent with that of the Parliament, then the law of the State Legislatures would be declared null and void. Whether the law of the Parliament has been passed before the law of the State Legislatures would not make a difference. The existing law of the Parliament would always be given supremacy over the State law.
Can a law made by the state legislature hold supremacy over the parliamentary law under any circumstances?
According to Article 254(2) of the Indian Constitution, if the law made by the State Legislature has been received for the consideration of the President following which the assent of the President is received, then the State Law would hold supremacy over the central law only for that particular state. However, nothing would stop the Parliament from enacting a law at any time with respect to the same subject matter which could include adding to, amending, varying, or repealing the law that has been made by the concerned State Legislature.
What are the essentials for repugnancy to arise between the law of the Parliament and the law of the State Legislatures?
Repugnancy between a law of the Central authority i.e. the Parliament and a law of the State Legislature can only arise when they are contradictory to each other. Also, there is an absence of any means to reconcile the provisions of both of the concerned laws. Repugnancy cannot just arise out of a mere possibility. It has to be clearly proved in the Court that the Central Law is contradictory to the law of the State Legislatures. Repealing by implication cannot be done in scenarios where there is an absence of prima facie repugnancy in the provisions. If the two provisions are of the same field but there exists a possibility of them existing without encroaching upon the existence of each other then Repugnancy does not arise.
What is the need for the Doctrine of Repugnancy?
The Doctrine of Repugnancy plays a major role in maintaining the integrity of the country as well as in the prevention of two laws on the same matter in the Concurrent List to be present. The Indian Constitution has many doctrines. However, the Doctrine of Repugnancy is one of the most consequential ones. The doctrine helps to maintain unity in our country as well as for the prevention of conflicts between the Centre and the States. The Doctrine of Repugnancy gives power to the Centre in case of the rise of an emergency. It keeps the Centre as well as the States in constant check so that they are not in a position to formulate laws that go against the public interest. Since, India is a quasi-federal state, and there is a distribution of powers between the Centre and the State especially in matters in the Concurrent List, there is always a chance of conflict between the Centre and the State in matters related to the Concurrent List. Thus, the doctrine of repugnancy becomes extremely important to solve the issues arising out of conflict between the Central authorities and the State Legislatures.
How is Ultra Vires different from the Doctrine of Repugnancy?
Ultra Vires applies in a scenario where the State exceeds its legislative powers. The law becomes invalid as soon as the law is made by the State that has exceeded the powers under its jurisdiction. In a scenario of ultra vires, there is the absence of any competition between two legislatures. This is different from the application of the doctrine of repugnancy because a scenario of repugnancy arises when there is a conflict between the Centre and the State when they legislate on matters related to the Concurrent List. There is the presence of conflict between the Central and State Legislatures due to them legislating on laws in the same matter in the Concurrent List.
How is the Doctrine of Pith and Substance different from the Doctrine of Repugnancy?
It is essential to understand the difference between the Doctrine of Pith and Substance and the Doctrine of Repugnancy. The Doctrine of pIth and Substance deals with conflicts between the Centre and the States when they make laws that are not a part of their list. The Doctrine of Repugnancy however deals with conflict that arises when the Centre and the State make a law on the same matter that are inconsistent with each other. The Doctrine of Pith and Substance can come in handy and is helpful in establishing repugnancy between the Central Law and State Laws that are inconsistent. Thus, the meaning and applicability of the two doctrines i.e. the Doctrine of Pith and Substance and the Doctrine of Repugnancy are different.
What is the difference between the Doctrine of Occupied Field and the Doctrine of Repugnancy?
The Doctrine of Occupied Field and the Doctrine of Repugnancy can be easily confused to mean the same. However, there is a clear difference between the two. The easiest way to understand this is that while the Doctrine of Occupied Field is related to the existence of legislative power, the doctrine of repugnancy is related to the exercise of such power. The Doctrine of Occupied Field means that if an Act of the Parliament occupies a subject over which the State Legislature is also empowered to legislate and has legislated and the Legislatures of the State end up obstructing the Act of the central authority, i.e., the Parliament then the law of the State Legislature becomes inconsistent or repugnant with the Act of the Centre. The Doctrine of Occupied Field is not related to the conflict between the two laws but their existence. The Doctrine of Occupied Field is an important test that is important to understand repugnancy but is different from it. This Doctrine comes into existence even before the Union or the State Law has commenced.
What are the tests to determine Repugnancy between the law of the central authority and the law made by the State Legislature?
Direct Conflict – When the two concerned laws cannot be effected at the same time, it is known as Direct Conflict. This is because the application of one law makes it impossible for the other law to be affected at the same time.
Exhaustive Code – This test was designed to deal with more complicated cases. If the central authority intentionally comes up with a code to control state matters and to limit the power of the state in its law-making powers. In such a case, it would be difficult for state legislation to function at the same time. This is when the test of exhaustive code would come into use.
Occupied Field – This test comes into application when the very existence of legislative power is in question. If an act of the state legislatures ends up obstructing any Act of the Parliament then the Doctrine of Occupied Field Comes into play.
In today’s modern era of development, contract law is essential to every commercial venture. A multitude of contracts, including those involving businesses, are made almost every day. The Indian Contract Act of 1872 is the primary legislation governing India and includes all of the laws dealing with contracts in India.
Section 14 of the Act highlights the concept of free consent in contracts. A legally binding contract must contain the necessary component of free consent. To know if a contract is valid, issues like fraud and misrepresentation demand careful consideration owing to their extensive usage in standard contracts.
What is a valid contract
An agreement must have free consent to be enforceable as a legally binding contract. As per Section 13 of the Indian Contract Act of 1872, two individuals are said to have consented when they reach an agreement with one another over the same matter.
Contracts that fulfil all requirements are deemed valid and can be enforced in a court of law. The parties are legally obligated to perform their part under a legitimate contract. Contracts can be made either orally, in writing, or by the conduct of the parties.
Elements of a valid contract
Contracts form the basis of today’s modern and civilised world. The laws governing contracts in India are subject to the Indian Contract Act, 1872. Section 10 of the Indian Contract Act of 1872 states what constitutes a contract. According to Section 10, a contract is an agreement enforceable by law. It involves the following elements:
Offer and acceptance: A contract comes into existence when one party (the offeror) makes an offer to another party (the offeree), and the offeree accepts the offer. An offer is a proposal to enter into a legally binding agreement, while acceptance is an unconditional agreement to the terms of the offer.
Consensus ad idem: There must be a consensus ad idem, or a “meeting of the minds,” between the parties. This means that both parties must have the same understanding of the terms and conditions of the contract. Any misunderstanding or ambiguity can invalidate the contract.
Consideration: Consideration is the price paid or promised for the promise of another. It can be anything of value, such as money, goods, services, or a promise to do or refrain from doing something. Consideration must be sufficient and legally valuable in order to create a binding contract.
Legal capacity: The parties to a contract must have the legal capacity to enter into a legally binding agreement. Minors, persons of unsound mind, and persons under the influence of intoxication or drugs may not have the capacity to contract.
Free consent: The consent of the parties to a contract must be free and voluntary. It cannot be obtained through fraud, misrepresentation, undue influence, coercion, or duress. A contract entered into under duress or undue influence is voidable at the option of the aggrieved party.
Lawful object: The object of a contract must be lawful. A contract that involves illegal or immoral activities is void and unenforceable.
Certainty: The terms of a contract must be certain and definite. Vague or ambiguous terms can make a contract void due to uncertainty.
Possibility of performance: The terms of a contract must be capable of being performed. A contract to do something impossible is void.
Written or oral: In general, contracts can be either written or oral. However, certain types of contracts, such as those involving the sale of land or goods exceeding a certain value, must be in writing to be enforceable.
Registration: In some cases, such as when the contract involves the transfer of immovable property, the contract must be registered with the appropriate government authorities to be legally valid.
By fulfilling these essential elements, an agreement becomes a legally enforceable contract under Section 10 of the Indian Contract Act of 1872.
Free consent : an essential element of a valid contract
A meeting and exchange of minds between both parties is needed when two individuals engage in a contract. This implies that both parties must come to an agreement on the same matter in an identical way. When someone voluntarily adopts the suggestion or wish of another, this is referred to as consent.
The parties to a contract must have the same purpose and intent according to the concept of consensus-ad-idem. The parties must be in agreement when it comes to the content covered by the contract.
Section 14 of the Indian Contract Act defines free consent. It states that a consent is said to be free if it does not include elements such as coercion (Section 15), undue influence (Section 16), fraud (Section 17), misrepresentation (Section 18) and mistake (Sections 20, 21 and 22).
Voidable contracts
Section 19 of the Indian Contract Act addresses the voidability of agreements if there is a lack of free consent. If it is found that the contract formed between the parties has any of the elements from Sections 15 to 18 of the Indian Contract Act mentioned above, then the agreement will be considered voidable at the choice of the party whose consent was taken.
Fraud in contracts
Concept of fraud
The Indian Contract Act defines fraud as an act of deliberate deception with the intention of giving the offender an unlawful advantage or gain, or, on the other hand, forfeiting the rights of the victim, which are included in the initial clauses of Section 17 of the Act. Fraud is when a person has an unethical and unlawful gain over the expense of another person, which accounts for an act of deception. The false assertion needs to be a fact, not just a person’s opinion. Fraud cannot exist if there is no loss. The party has to bear some actual loss to claim that fraud has been committed against them.
The regulatory framework dealing with issues of corporate fraud is the Companies Act of 2013, under which fraud is defined under Section 447. As technology has evolved, there has been a rise in online fraud, and in recent times, the law has made fraud a serious offence.
Fraudulent acts can be committed by a single individual, more than one individual, a group of individuals or an entire corporation. The economy faces the consequences of fraud in billions every year and those involved in it, if found guilty, have to compensate by paying a fine and even imprisonment. The Indian Contract Act recognises the seriousness of fraud and provides legal remedies to victims who have suffered losses due to fraudulent practices. It highlights the importance of honesty, transparency, and fair dealing in contractual relationships and sets a legal framework to address and deter fraudulent conduct.
Illustration: A sold his car to B, stating that it was in good condition when he knew it was not. With the intent of deceiving and selling his car by any means, he is guilty of fraud in this case against his buyer.
Components of fraud
Stating facts without first being certain if they’re true:
Providing a false impression and pressuring a person to take action on it amounts to fraud.
There should be an active concealment of facts:
Active concealment occurs when one party with a legal obligation withholds essential contractual details from the other
There should be a promise made without intention of its execution:
It is deemed fraudulent to pledge something that one doesn’t plan to honour.
Careless and vague statement:
If there is no proof of a genuine and sincere belief, it amounts to fraud, regardless of how carelessly or deliberately the claim was made.
Element of silence
As per the provisions of the Indian Contract Act of 1872, mere silence does not qualify as fraud. However, the interpretation of Section 17 of the Indian Contract Act lays out the conditions under which silence can be interpreted as fraud. The exceptions when silence may amount to fraud are:
There is a duty to speak: When one party to a contract places faith and confidence in the other, a duty to communicate arises.
There is a duty to inform about the changes: At times, a statement made by someone may be true, but when the other person acts on it, it may turn out to be false due to a change in circumstances. In these situations, the representative must inform the other party of the change in circumstances.
Where silence might be misleading: where silence amounts to fraud and the other party has the opportunity to learn about it via reasonable investigation.
There is half-truth: A person may be found guilty of fraud in situations where they are not required to give information but, by their own free will, reveal something and then stop midway through.
Burden of proof
In the event of alleged fraud being charged, the plaintiff bears the burden of proof. The plaintiff must present the particulars of the case to assert the circumstances that constitute fraud. It takes proof of mens rea to establish fraud. The law raises an acceptable probability of fraud when the parties are not on the same footing. On the other hand, neither party can gain an edge from a transaction in which both parties arein pari delicto.
Legal consequences or remedy
Whenever there is involvement of coercion, fraud, misrepresentation or undue influence in an agreement, it becomes voidable at the discretion of the party whose consent was obtained in such a manner under Section 19 of the Indian Contract Act.
If there was an act of fraud or misrepresentation that resulted in the other party’s assent to the contract, that party may, if appropriate, demand that he be placed in the same situation that he would have found himself in had the assertions been accurate.
Fraud or deception also amounts to a tort that may give rise to compensation in terms of damages. It gives rise to a claim for damages resulting from deception in addition to making a contract voidable at the sole option of the party whose consent is obtained in this manner as per the context of common law.
Fraud under English law
Fraud is defined by UK law as creating a false impression for one’s benefit or to cause loss to someone else. Falsely avoiding delivering material information when one was obligated to. It can also be defined as misusing the position one holds if one has a responsibility to safeguard the financial interests of other individuals and fails to do so to benefit oneself at the expense of another party, causing them to suffer losses.
These are defined in an array of statute law and common law sources, which include provisions from the Theft Act of 1968 and the Fraud Act of 2006. The prosecution must demonstrate that the defendant committed a false portrayal or representation to accuse them of the crime of fraud.
Misrepresentation in contracts
Concept of misrepresentation
Misrepresentation is addressed in Section 18 of the Indian Contract Act of 1872. According to the Indian Contract Act, misrepresentation is the positive declaration of something false but the speaker believes it to be true, which is generally not supported by his knowledge. An act of infringement of duty where the person benefits from the deception, without intending to deceive, by misleading another person into believing a preconceived false belief. Even if the mistake is committed with an innocent intention, making a party to an agreement to commit such a mistake about the very nature of the thing that is the content of that agreement.
In general terms, an inaccurate statement of an essential fact stated by one party that influences the decision of the other party to sign a legally binding agreement or contract is considered a misrepresentation. Making a misleading statement concerning a fact that is pertinent to the contract is referred to as misrepresentation. It is a statement stated before the fulfilment of the contract. Only factual statements are considered misrepresentations, not views or predictions. A person may choose to nullify a contract whose consent was obtained through such deception.
Illustration: A sold the car to B under the false impression that it was in good condition, based purely on his belief and ignorance of the fact that the car was not functioning properly. He is guilty of misrepresentation in this case to his buyer.
Components of misrepresentation
There is an unauthorised claim: When someone asserts something to be true when it is in reality untrue, it is termed misrepresentation
There is a violation of duty: Because of the situations involving this sort of misrepresentation, even if the individual making the representation has no intention of deceiving, they are nevertheless liable to the party they have deceived into believing that there has been a fraud.
There has been an attempt to make a mistake about the subject matter: If a party is provided with incorrect or misleading information about the nature or subject matter of the contract and the party was led to believe that information, it would be considered misrepresentation
Burden of proof
The party making the accusation bears the burden of proof to prove misrepresentation as per the law of contract. This burden is often challenging to discharge, as the accuser must present concrete evidence of false statements, omissions, or distortions of material facts that induced them to enter into the contract.
Legal consequences or remedy
In such a form of contractual conflict, the defendant is the one being accused of misrepresentation and the plaintiff is the one making the accusation.
If the party whose approval was acquired had the means to ascertain the truth with reasonable effort, the contract does not become voidable even if the consent was obtained using misrepresentation or fraudulent silence within the purview of Section 17 of the Contract Act.
In India, Section 19 of the Indian Contract Act provides remedies to the party who is innocent in cases of both fraud and misrepresentation. The affected party is entitled to legal remedies, including termination and damages, in case of infringement of the contract.
As per the Specific Relief Act of 1963, within an acceptable period of time, a party can opt to repudiate or rescind the contract, provided it can be shown that the other party committed a misrepresentation before the execution of the contract. Rescission of a contract is covered under Sections 27 – 30 of the Specific Relief Act.
Misrepresentation under English law
According to English dictionaries concerning the law, misrepresentation is when a party gives the other party a false factual assertion during negotiations of a contract to persuade them to sign the agreement. Therefore, the term misrepresentation describes the situation where the party to the contract was tricked into signing it by another party using a false assertion.
The fact that the law of misrepresentation lies on the edge of the law of contract and the law of tort, as well as unjust enrichment, makes it seem fairly complex. Misrepresentation more effortlessly fits in the area governed by tort law; determining whether a misrepresentation was made carelessly or through a fraudulent act depends on issues that arise more frequently in tort law if any indemnification ought to be given.
In the case of England, the Misrepresentation Act of 1967 regulates negligent as well as innocent misrepresentation, while the common English law governs fraudulent misrepresentation and offers damages in the Tort of Deceit.
Distinction between fraud and misrepresentation
Fraud
Misrepresentation
When there is fraud, the one deceiving purposefully deceives the other party by making a false statement.
In cases of misrepresentation, the person makes a false claim and honestly thinks it to be real.
Fraud gives rise to a claim for damages resulting from deception in addition to making a contract voidable at the sole option of the party whose consent is obtained in this manner as per the context of common law.
The repercussions of misrepresentation are mainly confined to remedies under the contract, which include either damages or revocation of the contract and are essentially a matter that falls under civil law.
Illustration: If a seller informs a prospective buyer that his apartment is 2000 square feet when, in reality, the seller is well aware that it is in reality 1000 square feet, it amounts to fraud.
Illustration: If the seller represents to a prospective buyer that the flat is 2000 square feet when he believes it is 2000 square feet, it will amount to misrepresentation.
Provision of indemnity clause in contracts
Contracts of a commercial nature typically contain indemnity clauses. In most cases, an indemnity clause encompasses within it all sorts of damages other than just direct losses.
Section 124 of the Indian Contract Act of 1872 establishes the legal framework for provisions regarding indemnification in India. This section defines an indemnity as a contract in which one party agrees to shield the other party against losses resulting from the promisor’s or third parties’ conduct.
Under the provisions of Section 73 of the Indian Contract Act, indemnity is only applicable in situations where a loss had been expected as a result of an infringement or breach of contract.
Judicial interpretations
Draupadi Poira vs. Bhagabat Chandra Poira (2023)
In this recent case, the Calcutta High Court, comprising Justice Rajasekhar Mantha and Justice Supratim Bhattacharya, emphasised that the appellants/plaintiffs had the burden of proof, and as they were unable to substantiate their claims, the issue of transferring that burden of proof to the defendants or respondents does not even arise.
Avitel Post Studioz Limited and Ors. vs. HSBC PI Holdings (Mauritius) Limited and Ors. (2020)
In this case, the Court decided that only if one of the two requirements was met, it would amount to grave accusations of fraud resulting in the non-arbitrability of the agreement or else it would be deemed arbitrable. These are:
If the court determines that the arbitration agreement cannot exist because of the act of fraud.
When accusations of malafide or fraudulent conduct are brought against the state or its agencies, they raise issues of law governing the public rather than those confined to the contractual arrangements binding the parties.
Noorudeen and Ors. vs. Umairathu Beevi and Ors. (1998)
In this case, it was held by the Court that it was a case of fraud and misrepresentation where the defendant executed a sale deed of the plaintiff’s property by deceiving the plaintiff that it was a hypothecation deed. The plaintiff, a blind man, was misrepresented by his son, who tried to sell the property for inadequate consideration and the deed executed was considered invalid and set aside. The Court highlighted several key factors that supported its finding of fraud. Firstly, it noted that the plaintiff was a vulnerable individual due to his visual impairment, which made him susceptible to exploitation and manipulation. Secondly, the Court pointed out that the defendant, being the plaintiff’s son, held a position of trust and confidence, which he breached by deceiving his father.
The misrepresentation aspect of the case centred around the false representation made by the defendant that the document being executed was a hypothecation deed, which is a type of mortgage where the property is pledged as security for a loan. However, the actual document signed by the plaintiff was a sale deed, which transferred the ownership of the property to the defendant. The Court held that this misrepresentation was material and induced the plaintiff to execute the document, resulting in his loss of property.
The Court’s decision in this case upheld the principles of fairness and justice, ensuring that vulnerable individuals are protected from unscrupulous acts of fraud and misrepresentation. It emphasised the importance of transparency and informed consent in property transactions and cautioned against any attempt to exploit vulnerable individuals for personal gain. This judgement serves as a reminder to all parties involved in property transactions to act with honesty and integrity, respecting the rights and interests of others.
Shri Krishnan vs. the Kurukshetra University, Kurukshetra (1975)
The concept of fraud involves the intentional deception of another person for personal gain or advantage. To prove fraud, several elements must be established, including a false representation of a material fact, knowledge of the falsity of the representation, intent to deceive, reliance on the representation, and damages suffered as a result of the reliance.
In this particular case, the court determined that the victim of the alleged fraud could have discovered the truth through due diligence. This means that the victim had the opportunity and means to investigate the matter and uncover the deception. The court considered the fact that the institution was responsible for carefully examining the forms and concluded that the victim should have relied on the institution’s review process rather than blindly accepting the representations made.
Furthermore, the court found that neither suggestio falsi nor suppressio veri were present in this case. Suggestio falsi refers to making a false statement, while suppressio veri refers to concealing or omitting a material fact. The court concluded that there was no evidence to suggest that the institution made any false statements or intentionally concealed any relevant information.
The decision in this case highlights the importance of due diligence in preventing fraud. Individuals and organisations must exercise reasonable care and caution when relying on representations made by others, especially in matters involving financial transactions or legal agreements. By conducting thorough due diligence, potential victims of fraud can protect themselves from being deceived and suffering financial or legal consequences.
Conclusion
It is imperative that one enter into a contract willingly and free from coercion. The Indian Contract Act defines fraud as when someone makes a promise they have no intention of keeping or hides a fact they are aware of or believe to be true. Misrepresentation serves as the foundation for breach of contract in all kinds of transactions, regardless of size. It is limited to factual statements, not views or predictions. The purpose of these, along with other provisions in the Contract Act, is to protect the best interests of the parties entering into the contract.
As a fundamental component of the legal system, tort law attempts to rectify civil wrongs and offer compensation to those who have been harmed by the deeds or negligence of others. Navigating the complexity of tort litigation requires an awareness of the many defences accessible to defendants as these legal doctrines change. This article explores tort law, with a particular emphasis on the broad defences that people and organisations can use to avoid being held liable.
This article offers a comprehensive analysis that goes beyond simple definitions in an attempt to disentangle the nuances surrounding general defences in torts. We want to offer a comprehensive understanding of how these defences operate and interact within the larger context of tort law by exploring important case studies, real-world scenarios, and developing trends.
What are general defences in torts
By pleading certain general defences, the defendant can escape accountability when the plaintiff files a lawsuit against them for a specific tort, even after establishing all the elements of that tort. It is pertinent to note that the effectiveness of these defences varies based on the facts of the case.
What are different types of general defences
Volenti non fit injuria
This means a willing person is not wrong. When a person consents to the infliction of harm upon himself, he cannot avail himself of any remedy for that because he willfully gave up his right. The consent of the person can be expressed or implied.
For example, if I go to a doctor to get a blood test done, then I cannot sue them for the pain suffered during the process because I consented to the test, so I have lost that right.
This is an example of express consent. If I have gone to watch a car racing match, then I am also agreeing to the risk of injury due to pure accidents that might arise during the game.
Another essential part of this is reasonable harm. For instance, in the first example, I can hold the doctor liable if he does something I have not consented to. Similarly, in the second example, if, during the car racing match, I find a deadly snake underneath my seat and it bites me, then I can sue the concerned authority.
Hall vs. Brooklands Auto Racing Club (1933)
In this case, the plaintiff went to see a motor car race that was held at Brooklands. During the race, a collision occurred between two cars; one of them hit the spectators, injuring the plaintiff. He sued the defendant company that owned the tracks. The courts held that since the risk was reasonably foreseeable, considering the dangerous nature of the sport, the defendant company is not liable.
Padmavathi and Ors. vs. Dugganaika and Ors. (1974)
In this case, two strangers voluntarily took a lift in a jeep. All of a sudden, due to some mechanical defect, the Jeep toppled and they suffered injuries. The driver and owner of the jeep were sued. The court held that since the plaintiff willingly took the lift and the accident was not reasonably foreseeable, the defendants were not liable.
Wooldridge vs. Sumner (1963)
In this case, a photographer who was employed at a horse show accused that a horse bolted towards him at a high pace and knocked him down. This happened because the rider lost control of the horse. He sued the show organisers for negligence. It should be noted that the photographer was standing in the ring where the horse show was going on and not behind spectator barriers.
The Court held the plaintiff liable in the above case because, in such athletic events, which are fast-paced, spectators are aware of the risk they expose themselves to.
The risk may arise due to an error of judgement or skill, and in this case, there was an error in the judgement of the athlete and the plaintiff also did not take the necessary precautions by stating within the ring and not behind the spectator barriers.
So, in what cases can the defendant be held liable? Let’s suppose that I go to watch a boxing match. If, in between the matches, one of the boxers jumps out of the ring and punches me in the face, then if I, as a plaintiff, sue the boxer in his capacity or whatever association he is associated with, the defendant cannot plead volenti non fit injuria because I consented to watch the match and the consequences suffered by me were not reasonably foreseeable; there should be free consent.
Lakshmi Rajan vs. Malar Hospital Ltd. and Anr. (1993)
In this case, the plaintiff visited the hospital due to the presence of a painful lump in her breast. It was completely unrelated to her uterus but when the surgery was performed, the doctor removed her uterus without any explanation.
The court held the hospital liable because the plaintiff gave her consent regarding the removal of the lump in her breast and not the removal of the uterus.
If consent is obtained by fraud
R vs. Williams (1998)
In this case, the defendant was a music teacher who raped his 16-year-old student by stating that the act would improve her voice. She gave her consent but did not understand the purpose of the sexual act. The court did not excuse the defendant because he obtained consent. After all, it was obtained fraudulently.
Knowledge of the risk does not equate to consent
Smith vs. Baker (1891)
In this case, the plaintiff used to work for a railroad corporation. His work included drilling holes in rocks next to a crane, operated by the corporation’s employees. Once, it so happened that the plaintiff was not warned before the operation of the crane and it flung stones over his head, thereby injuring him. The plaintiff was aware of the dangerous nature of his job. The plaintiff sued the defendant. The House of Lords held the defendant liable and did not grant the defence of volenti non fit injuria, as mere knowledge of the harm does not imply consent to that harm.
Consent obtained under compulsion
For instance, if I ask my servant to clean the roof despite the scorching heat when it is very much reasonably foreseeable that he might fall sick, otherwise he would be removed from service. If he falls sick, then volenti non fit injuria will not apply because he did not have a choice; he was under compulsion. That’s why he consented to such dangerous work, not out of his free will.
On the other hand, if an employee does his work carelessly or in a dangerous environment under no compulsion and incurs damages, he cannot sue the employer because the defence of volenti non fit injuria will be applicable.
The defence of volenti non fit injuria is not applicable in rescue cases.
Haynes, the plaintiff, was a police officer on duty at a popular street police station. A lot of people, including children, visited him often. A delivery car with two horses that belonged to the defendants (Harwood) was abandoned on the same street without a driver. No one had intervened when the two youngsters had thrown a stone at one of the horses at this time.
The horses rested for a long time until they arrived in front of the police station, where the plaintiff was in the cellar. The driver had tied a chain to one of the van’s wheels, which then broke. Upon witnessing the situation, the policeman realised that women and children were in grave danger. In an attempt to save them, he sidestepped the horse and attempted to halt both of them.
The court did not grant the defence of volenti non fit injuria and Hardwood was held liable.
Wagner vs. International Railway Co. (1921)
In this case, a person travelling was thrown out of the running train due to the negligence of the railway company. His friend went to search for him when the train stopped, but he missed his footing and fell off a bridge, which resulted in injuries. He brought up a suit against the railway company. The court held the defendant liable, and the defence of volenti non fit injuria was not granted.
Plaintiff, the wrongdoer
In this general defence, it is stated that if the plaintiff himself is at fault( by committing an illegal act) then he cannot file a suit against the defendant, even if he has incurred damages.
It is governed by the maxim- Ex turpi causa non oritur actio, which means “from an immoral cause, no action arises.”
Hamps vs. Darby (1948)
The plaintiff’s pigeons were let out on the defendant’s pea crop. The defendant, after shouting at them, fetched a gun and shot at them, killing four and wounding one. The courts decided in favour of the plaintiff, and the defence of the plaintiff, the wrongdoer, was rejected.
Collins vs. Renison
The plaintiff climbed a ladder to put a notice on the defendant’s garden wall. On refusal to come down the ladder, he pushed the plaintiff off the ladder, which he pleaded, was in a very gentle way. However, the court gave its judgement in favour of the plaintiff.
Bird vs. Holbrook
In this case, the defendant set up spring guns in his garden without any notice or warning about the same. The plaintiff, who was a trespasser over the defendant’s land, got injured and brought up a suit against the defendant. The court granted the compensation claim by the plaintiff.
Pitts vs. Hunt (1991)
In this case, there was a driver and his friend on a motorcycle who had been drinking. The friend encouraged him to drive negligently and in a rash manner. They met with an accident where the driver died and his friend was severely injured. The court refused to grant damages to the pillion.
Inevitable accident
This general defence comes into play when there has been a genuine accident where all reasonable care was taken by the defendant, but still, the accident occurred and injury was caused to the plaintiff. The accident is not natural.
Holmes vs. Mather
In this case, the defendant’s servant was driving the horses on a public highway when suddenly a dog started barking, which alarmed the horses. Despite the reasonable care taken by the defendant’s servant, the horses could not be managed and thus they injured the plaintiff. The court ruled in favour of the defendant because it was an inevitable accident that led to injuring the plaintiff.
Stanley vs. Powell
Both the defendant and plaintiff were members of the shooting party and went for pheasant shooting. The defendant aimed at the pheasant, but the shot glanced off an oak tree and hit the plaintiff. The defendant was held not liable.
Brown vs. Kendall
In this case, the defendant’s and plaintiff’s dogs got into a fight. The plaintiff tried to intervene to stop the fight and consequently, he hit the plaintiff in the eye. The courts held the defence of an inevitable accident applicable and therefore acquitted the defendant.
Act of god
This general defence is similar to the earlier one of inevitable accidents, except for the fact that in this defence, the accident occurs due to natural forces and does not involve man-made situations. The occurrence must be extraordinary and not one that can be reasonably foreseeable.
R.R.N. Ramalinga Nadar vs. V. Narayan Reddiar (1970)
In the landmark case of R.R.N. Ramalinga Nadar vs. V. Narayan Reddiar, the court grappled with the legal implications of a robbery incident that occurred during the transportation of goods in the defendant’s truck. The question before the court was whether the defendant could be held liable for the loss of the goods or whether the incident could be attributed to an act of God, absolving the defendant of any responsibility.
The facts of the case revealed that the defendant had undertaken the transportation of goods on behalf of the plaintiff. During the transportation, an unruly mob intercepted the truck and forcibly took away the goods. The plaintiff subsequently filed a suit against the defendant, seeking compensation for the loss suffered.
The defendant, in his defence, argued that the robbery was an act of God and hence, he could not be held liable for the loss. The defendant contended that the act of the unruly mob was an unforeseen and irresistible event beyond his control and, therefore, he should be exonerated from any liability.
The court, after carefully considering the arguments presented by both parties, held that the robbery did not constitute an act of God. The court reasoned that while the act of the unruly mob was undoubtedly unforeseen, it was not irresistible. The court noted that the defendant could have taken reasonable steps to protect the goods, such as hiring security personnel or choosing a safer route for transportation. The court further observed that the defendant had failed to exercise due care and diligence in ensuring the safety of the goods entrusted to him.
Consequently, the court held the defendant liable for the loss of the goods and ordered him to pay compensation to the plaintiff. This decision reinforced the principle that carriers are generally held responsible for the safety of goods entrusted to them during transportation and cannot escape liability by simply attributing the loss to an act of God. The court’s ruling serves as a reminder to carriers of the importance of taking adequate measures to safeguard the goods they transport and to ensure that they are not exposed to unnecessary risks.
Nichols vs. Marsland
The defendant made some artificial lakes on his land by damming some natural streams. The embankments of the lake gave way when there was an extraordinary rainfall, which was an extraordinary occurrence. The courts held the defendant not liable because the occurrence was indeed extraordinary and thus the defence of the act of God was not granted.
Kallulal and Anr. vs. Hemchand and Ors. (1957)
In this case, the wall of the defendant’s building collapsed in the rainy season, which resulted in the deaths of the plaintiff’s two children. The Madhya Pradesh High Court did not grant the defence of the act of God because rainfall of this magnitude in context was not something extraordinary.
The defendant argued that the collapse of the wall was an act of God and that he could not be held liable for the deaths of the children. However, the court rejected this defence, holding that the rainfall in question was not so extraordinary as to be considered an act of God. The court noted that the area in which the incident occurred was prone to heavy rainfall during the monsoon season and that the defendant should have taken steps to prevent the collapse of the wall.
The court’s decision in this case has had a significant impact on the law of torts in India. It established the principle that an act of God is not a defence to liability if the defendant could have reasonably foreseen the event and taken steps to prevent it. This principle has been applied in numerous subsequent cases involving claims for damages caused by natural disasters and other acts of nature.
The Kallulal case is also notable for its discussion of the concept of negligence. The court held that the defendant was negligent in failing to take steps to prevent the collapse of the wall. This finding was based on the fact that the defendant knew that the wall was in a state of disrepair and that it was likely to collapse if it was not repaired.
The court’s decision in the Kallulal case has been criticised by some scholars, who argue that it is too strict and that it places an unfair burden on landowners. However, the decision has also been praised by others, who argue that it is necessary to protect the public from harm caused by dangerous structures.
The Kallulal case remains a leading precedent in the law of torts in India and continues to be cited in cases involving claims for damages caused by acts of God and other natural disasters.
Right to private defence
It is permissible to use reasonable force to protect one’s person or property. Essential conditions for this defence include the use of reasonable force, and the threat for which force is being used must be immediate and reasonably foreseeable; that is, the aggressor must be capable of causing the harm. It must be necessary to use force, and any immediate help must be unavailable, to exercise the right to private defence. Some prominent cases that give useful insights into this defence are as follows-
Bird vs. Holbrook
In this case, the defendant set up spring guns in his garden without any notice or warning about the same. The plaintiff, who was a trespasser over the defendant’s land, got injured and brought up a suit against the defendant. The defendant pleaded that the traps were set up for the protection of property, but the defence of private defence was not granted by the courts because it was essential to post a warning or notice, and without either, it seems more probable that the defendant wanted to scare people off rather than protect his property.
Mistake
Mistakes can be classified as mistakes of law or mistakes of fact, that is, not knowing the correct facts or misunderstanding them. Neither of them qualifies as a legitimate defence under the law of torts.
Consolidated Co. vs. Curtis
In this case, an auctioneer auctions certain goods, honestly believing them to be his customers’, and pays the sale proceeds to the customer; however, the goods did not belong to the customer, and the true owner sued the auctioneer. The court found the auctioneer to be liable.
However, there are certain exceptions to this rule. One such example is the tort of malicious prosecution, where if the defendant succeeds in proving an honest but mistaken belief, he is not held liable. Even in the tort of vicarious liability, if the mistake of a servant is outside the course of employment, then the master is not held liable. In deceit, honest belief is a defence.
Necessity
This defence lays down certain conditions where intentional damage to an innocent person is also permissible by law, provided that the action is taken to prevent larger damage.
Kirk vs. Gregory (1876)
In this case, a person dies, and his sister-in-law takes off the jewellery and places it in another room, thinking of it as a safer place. The person’s executors sued her for trespass. The courts held the sister-in-law liable because the interference was not reasonably necessary and the defence of necessity was not granted.
Carter vs. Thomas (1935)
In this case, the defendant went to the plaintiff’s house to extinguish the fire when the firemen had already arrived. The plaintiff sued the defendant for trespass. The court did not grant the defence of necessity in this case because the firemen had already arrived and the defendant was held liable.
Cope vs. Sharpe
In this case, the defendant was sued by the plaintiff for trespass because he entered the plaintiff’s property to prevent fire from spreading to the adjoining land, over which his master held shooting rights. The courts did not hold the defendant liable and granted the defence of necessity as the action was done reasonably.
Statutory authority
If a tort is committed during an act authorised by the legislature or done on its orders, then the defence of statutory authority is granted against obvious as well as consequential injury. This defence can be asserted against both obvious injuries, which are directly and reasonably foreseeable consequences of the authorised act, and consequential injuries, which are indirect or unintended consequences.
The rationale behind this defence is that individuals should not be held liable for actions taken in compliance with the law. The legislative authorization is deemed to provide a sufficient justification or excuse for the actions, even if they would otherwise constitute a tort. For example, if a police officer arrests an individual pursuant to a valid warrant, the officer is not liable for false arrest, even if the warrant was later found to be invalid.
However, the defence of statutory authority is not absolute. It may be defeated if the individual exercising the statutory authority exceeds the scope of their authority, acts in a negligent or reckless manner, or fails to comply with any applicable procedures or regulations. Furthermore, the defence is not available if the authorised act is inherently dangerous or if it violates a fundamental right.
Vaughan vs. The Taff Vale Railway Company (1860)
In this case, an engine belonging to the defendant’s railway company emitted sparks, which led to the plaintiff’s woods catching fire. The courts did not hold the defendant liable because reasonable care was taken by the company and the act was done in compliance with the statute, thus the defence of statutory authority was given.
Hammersmith Rail Co. vs. Brand (1868)
In this case, the value of the plaintiff’s land depreciated due to noise and smoke caused by the running of trains for the defendant’s company. The court granted the defence of statutory authority in this case.
Smith vs. London and South Western Railway Co. (1903)
In this case, the plaintiff’s cottage, which was located about 200 yards away from the railway line, caught fire. He brought up a suit against the railway company for their negligent actions. It was established that the workers of the railway company left trimmings of grass and hedges near the railway line, due to which, when the engine emitted a spark, the material caught fire, and due to strong winds, the fire reached the plaintiff’s cottage. The courts held the defendant’s company liable and did not grant the defences of statutory authority.
Conclusion
These are the general defences that can be granted by courts of law to serve justice and ensure that neither party is falsely implicated in any case. By ensuring that culpability is fairly distributed and that the results of judicial proceedings are reasonable and equitable, these defences are essential to maintaining the proper balance in the justice system. But it’s crucial to understand that defences in tort law are only applicable in certain situations, and that each case’s particular circumstances and prior rulings must be carefully considered for them to be successful.
This article is written by Prabha Dabral. The article discusses the concept of ex parte divorce in detail. It talks about the procedure, validity, and grounds under which an ex parte divorce is passed. The article also discusses instances when ex parte divorce can be set aside.
Table of Contents
Introduction
In civil suits, whenever a suit is filed in a court, the defendant receives a notice regarding his appearance before the court. However, in certain circumstances, the defendant fails to appear on the day fixed for the hearing. In such a situation, the court has the power to pass an ex parte order against the defendant under Order 9 Rule 6 of the Civil Procedure Code(CPC), 1908 (hereinafter referred to as “CPC”). But is it applicable in divorce cases too?
The legal dissolution of marriage can be extremely stressful for both the husband and the wife. Along with the emotional stress and strain, separation gives various legal rights to each of the spouses. For example, rights related to property ownership, custody of a child, legality of subsequent marriage, etc. Once a divorce is granted, all these rights come up. But what happens if the defendant refuses to cooperate and does not appear before the court? Can a divorce be granted to a party solely on the basis of non-appearance of the other party? This article answers this question and talks about the provisions relating to it.
Meaning of ex parte divorce
The term ex parte is a Latin legal term. Originally it was “ex par-tay”, but popularly it is known as ex parte. The literal meaning of the term ex parte is ‘in the absence of the other party’. An ex parte divorce occurs when one spouse fails to appear in court despite being given due notice.
Divorce can be categorised into two types, namely
Mutual consent divorce; and
Contested Divorce.
A mutual consent divorce implies that both the parties i.e. husband and wife mutually agree and express their consent for peaceful separation. On the other hand, in a contested divorce, only one of the parties consents to the divorce.
A party has to appear before the court once a summons has been served as per Order 9 Rule 1 of CPC. Sometimes in a contested divorce proceeding, the defendant does not appear in the court. His/Her non-appearance can be due to various reasons. For example, if he/she refuses to cooperate, it is difficult or inconvenient for the plaintiff to contact him/her, he/she is out of the country or is unavailable for any other reason. Such situations delay the divorce procedure. So, when the defendant does not appear and summons have been served, the Court has the power to grant divorce irrespective of the absence of the other spouse.
Though the decision is made in the absence of the other party, it does not mean that the rights and interests of the absent party will not be considered. The court is supposed to give a decision that is reasonable and just, considering the interests of both parties. After an ex parte order has been passed, if the defendant presents a satisfactory reason for his/her absence before the court, then the ex parte decree can be set aside. This remedy can be availed by filing an application to set aside the ex parte decree under Order 9 Rule 13. There is another way to set aside the ex parte decree. The defendant can file an appeal against the decree under Section 96(2) of the Code before a special bench of the High Court.
Purpose of ex parte divorce
A married couple who wants separation can move on with their separate lifestyles even without going to court. But when a marriage ends this way, it leaves a number of decisions uncertain. For example, decisions regarding maintenance, issue of custody of children, rights of inheritance, etc. consequently, it is wise to go through the divorce process. Along with the distribution of wealth, it helps in setting up child custody, parenting schedules when there are children between the parties, etc.
However, in certain situations despite the applicant party providing sufficient notice to the other party, their non-appearance for varied reasons often delays the court proceedings. The non-appearance of the other party can be due to various reasons. Reasons like he/she resides in a different state, he/she refuses to come to the court, or it is inconvenient for the spouse to contact him/her, etc. Hence, the law offers ex parte divorce so that the case can continue even if there is only one party attending the court.
When is an ex parte divorce allowed
These divorces normally arise in two situations-
When one of the spouses has moved out of the state or if he/she can not be located or contacted.
When one of the spouses is uncooperative with the divorce procedure and refuses to participate in the proceedings.
In case any of the above situations arise, the divorce proceedings do not get delayed. And despite the obstinacy or absence of the other spouse, the spouse who filed for the divorce can get a divorce through an ex parte order.
Grounds of an ex parte divorce
There are situations where the defendant either refuses to participate or can’t be located even after all the possible attempts. In such a case, the court may proceed with the ex parte order against the defendant so that his non-appearance does not jeopardise the plaintiff’s rights.
The grounds for an ex parte order are mentioned under Order 9 Rule 6 of the Code. They are as follows-
Proof of service
When it is proved that the summons was duly served and the defendant still does not appear, it attracts the provision under Order 9 Rule 6(1)(a). Hence, the suit will be heard ex parte. In order to attract this provision, the spouse who is filing for the divorce must ensure that the summons regarding the divorce petition is duly served to the other spouse. The party must prove that he/she has made all the necessary efforts to notify the other about the petition.
Failure to file a written statement
After the summons is served, the defendant shall present a written statement of his defence. It shall be filed within 30 days from the date of service of summons as per Order 8 Rule 1. In case the opposite party fails to file a written statement within the specified time period, the court has the power to proceed with an ex parte order under Order 8 Rule 10 of CPC.
Non-appearance of the opposite party
When the party who had filed the suit proves that the summon/ notice was duly served, and if the opposite party still does not appear, the court may hear the suit ex parte and pass a decree against the defendant under Order 9 Rule 6(1)(a) of CPC.
Court adjourns the hearing as ex parte
The court has the power to adjourn the hearing as ex parte. In a situation, where the opposite party appears on the hearing date and shows sufficient cause (for example, summons not duly served) for his or her non-appearance, the court may proceed with the case as if the party appeared on the first hearing. But if the opposite party does not appear or fails to give a good cause, then the court proceeds with an ex parte order under Order 9 Rule 7 of CPC.
Procedure of an ex parte divorce
There is no particular procedure for an ex parte divorce. Once a contested divorce is filed in the court and the opposite party does not appear in the proceeding, the divorce can be passed as an ex parte decree.
The time taken for finalising the ex parte divorce usually depends upon the complexity of the case. The procedure involves sending the summons to the opposite party, waiting for the reply, if any, and recording statements. Once the court is satisfied that no response is being made by the defendant, despite being served with notice/summon, the court proceeds with ex parte decree. So it may take a few months, or in some cases, several years.
Following are the steps for an ex parte divorce proceedings:
Filing the petition
The divorce procedure begins with one of the spouses filing the divorce petition in the Family Court. The petition can be filed on the grounds mentioned under Section 13 of the Hindu Marriage Act, 1955. This is the provision for divorce sought by either the husband or wife when they can not agree on one or more divorce-related issues in their marriage.
The petition should clearly state the facts and the reason for such divorce. The petition includes relevant information like the name of the parties, address, information about children, property, etc. Along with all this information, the petition also includes the affidavits, vakalatnama and other relevant documents.
Service of summons
After reviewing the petition, if the court is satisfied and decides to proceed, it issues a summons to the opposite party to appear on the set date with his/her lawyer.
Summons are governed under Sections 27 to 29 of CPC. The purpose of the summons is to provide information to the defendant about the institution of the suit. Section 27 of the Code states that summons must be dispatched to the defendant within 30 days from the date of institution of the suit. As per Order 5 Rule 1, the defendant has 30 days from receiving the summons to appear before the court and file the written statement.
Response of the opposite party
If the opposite party receives the summons and does not respond within the specified time (i.e. 30 days), the Court can grant an ex parte divorce to the party after considering the rights of both parties.
Finalising the divorce
On a set date, the Court will give its decision and issue an ex parte divorce decree. The aggrieved party will have 3 months from the date of the order to file an appeal against this decree. The ex parte divorce will be effective on the date specified in the decree.
Validity of an ex parte order
An ex parte divorce is not different from a contested divorce. Therefore, an ex parte divorce decree is lawful for either party to the marriage. Section 15 of Hindu Marriage Act does not make any distinction between a contested and an ex parte decree of divorce. This section clearly states that either party to the marriage can marry again if no appeal is filed within the period of limitation.
The enforceability of an ex parte order is similar to any other order of the court. The court passes the order by weighing the evidence and the facts provided by the party who has filed the case. Hence, if the plaintiff is able to prove the facts, the court has the power to proceed ex parte order against the defendant.
Is ex parte divorce violative of the right to a hearing?
This type of divorce is often seen as a violation of the right to a fair hearing. But that is not the case. The defendant is given chances to appear and when he still doesn’t appear the ex parte order is passed. The reasoning behind this is that once a valuable right has accrued in favour of one party because of the negligence or inaction of the other party, it would be unreasonable to take away that valuable right from that party. The ends of justice can only be achieved when justice is done to both parties equally. Recently, in the case of Smt. Jyoti Verma vs. Prashant Kumar Verma (2023) Allahabad High Court has held that principle of natural justice (right to hearing) will not be defeated if the ex parte divorce was granted after continued absence of the wife. This case is discussed in detail under this article, refer this.
However, if later the defendant comes to the court with sufficient cause for his absence, the court can set aside the order as well.
The term ‘sufficient cause’
The term ‘sufficient cause’, refers to the legal determination that a sufficient reason exists to support the case. This term is often interpreted by various High Courts and the Supreme Court of India. In simple words, it means that there was no mala fide intention on the defendant’s part and he/she has not acted in any negligent manner. There is a slight point of difference between a ‘good cause’ and ‘sufficient cause’. The requirement of a ‘good cause’ is that it is complied with a lesser degree of proof than that of ‘sufficient cause’. Moreover, the term ‘sufficient cause must be within the concept of reasonable time and proper conduct of the party.
This expression would be considered to be factually correct, depending upon the bona fide nature of the explanation. If the explanation given by the defendant does not lack bona fides, then the court may condone the delay. But if the court is of the view that the explanation is concocted and that there has been negligence on the part of the defendant, the court may not condone the delay. Moreover, if a party has presented a reasonable cause, he/she is not entitled to the condonation of delay as a matter of right. This is because, to exercise this discretionary jurisdiction, proof of a sufficient cause is necessary.
Hence, the court must be satisfied with the reason that the party gives for his/her absence, so an ex parte decree can be set aside. There can be certain scenarios that act as sufficient causes for the same. For example, summons not duly served to the defendant, plaintiff has not paid the fees, the postal address being incorrect or changed, the defendant not getting enough time to appear before the court, etc.
In the case of Gauhati University v. Shri Niharlal Bhattacharjee (1995), the Supreme Court held that the limitation period began only when the appellant had knowledge of the ex parte decree. Since summons were not duly served properly, the limitation period began when he got to know about the decree.
Once the limitation period has expired, any application (i.e. for setting aside ex parte order) presented after that must be accompanied by an application seeking condonation of delay explaining the sufficient cause for such delay. After the condonation of delay application is decided, only then the court exercises the power of deciding the main application.
In another case of Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy and others (2013), the Supreme Court held that there should be a liberal and justice oriented approach while dealing with an application of condonation of delay. It was observed that courts are obliged to remove injustice and not legalise it. Hence, the term sufficient cause should be understood in its proper perspective and purpose.
In addition, some more guidelines were given by the Court in this case for the present day scenario. They are as follows:
The application for condonation of delay shall be filed with careful concern. It shall not be drafted in a haphazard manner. The conduct, behaviour, and attitude of the applicant with respect to his/her inaction or negligence are relevant factors for the consideration of the application.
It must be kept in mind that adherence to strict proof should not affect public justice.
The application for condonation of delay shall not be dealt with in a routine manner based on the individual philosophy as it is very subjective. The lack of bona fide intention of a party seeking condonation of delay is a significant and relevant fact. Courts are supposed to be vigilant, so there should be no failure of justice.
Though there is no straight jacket formula for judicial discretion, yet a conscious effort should be made to achieve consistency and collegiality in the adjudicatory system. Each case has to be weighed based on the facts and circumstances in which the party conducts itself. There is no formula for whether to accept or reject an explanation for delay, but one thing is clear, that the courts should not proceed with the intention to find fault with the cause presented.
The Court also observed that in cases of delay, there is a possibility of some lapse on the part of the litigant. So, that reason alone is not enough to reject the plea of condonation of delay. In such cases, the court must show some consideration to the suitor provided that the explanation is free from mala fides. While condoning delays, the courts should not forget the opposite party. It should also be kept in mind that he/she would also have incurred large litigation expenses. The Court gave a salutary guideline that when the courts condone the delay due to negligence on the part of the applicant, the opposite party should be compensated for its loss.
Remarriage after an ex parte divorce
The decree of divorce breaks a marital tie and makes the couple competent to remarry. Even if it is an ex parte decree of divorce, the parties forfeit the status of husband and wife with respect to each other. Hence, each of them becomes legally competent to remarry provided that no appeal is filed within the specific time period.
The Supreme Court of India has held a landmark judgement regarding remarriage after an ex parte divorce in the case of Chandra Mohini Srivastava v. Avinash Prasad Srivastava (1967). In this case, it was held that remarriage can happen only if the period for filing an appeal or an application to set aside the ex parte order has lapsed. And in case an appeal has been filed by the opposite party, then the person can remarry only after the appeal is decided by the court. Recently, in the case ofSeema Devi vs. Raneeit Kumar Bhagat (2023),Delhi High Court upheld the second marriage of a man while saying that Section 15 of the Hindu Marriage Act does not differentiate between the contested decree and ex parte decree for divorce. For a detailed analysis of this case, refer this.
Setting aside an ex parte order or appeal
After an ex parte order is passed against the defendant, he/she has the option to file an application to set it aside in that court which has passed the ex parte as per Section 106 of the Code. To do that, he has to file an application under Order 9 Rule 13 of CPC. The following are the main reasons for setting aside an ex parte order-
When the summons has not been duly served to the defendant; or
When the defendant was prevented by a reasonable cause from appearing before the court when the suit was called on for hearing; or
when the defendant appears after the service of the summons, but thereafter he/she and his/her counsel fail to appear before the court.
The court, if satisfied by the reason given, may order for setting aside the decree upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit under the provision of Order 9 Rule 13 of the Code.
As per Order 9 Rule 14 of the Code, the court shall not set aside a decree without serving a notice to the opposite party.
Remedies available against an ex parte order
The benefit of remedy is available to those who are vigilant and not those who are negligent towards their rights. Hence, there are remedies available to the applicants against an ex parte order. They are as follows:
If an appeal is filed and the respondent does not appear on the fixed date, the court may hear the appeal as ex parte under Order 41 Rule 17(2) of the Code. According to Order 41 Rule 21 of the Code, if an ex parte order is passed in an appeal the respondent may present sufficient cause and apply to the Appellate Court to re-hear the case.
An application can be filed under Order 9 Rule 13 of CPC for setting aside the ex parte order.
Since it is not an interlocutory order but a final order. An appeal can also be filed against this order as per Section 96(2) of CPC.
If an appellate decree is passed ex parte then an appeal can be filed under Section 100(2) of the Code. This sub-section states that “an appeal may lie under this section from an appellate decree passed ex parte.”
A review application can be filed under Section 114 of CPC.
An application can be filed for re-hearing the matter on the grounds of principles of natural justice. There are 3 principles of natural justice.
First is “audi alteram partem” which is also known as ‘Hearing rule.’ It states that the party who is affected by the decision of the court should be given a fair chance to express his/her point of view and defend himself/herself.
The second rule is the ‘Bias rule’ which says that the court should not be biased while making a decision.
The third rule is ‘Reason decision’ which says that every order, decision, or judgment of the court should be based on a valid and reasonable ground.
A revision may also lie under Section 115 of the Code of Civil Procedure (1908).
In this case, the husband, after being granted an ex parte divorce decree, married another woman. Later, his divorced wife filed an application to set aside the decree. Along with that, she gave an application for condonation of delay of 48 days as during the hearing of the case, she had delivered a baby through a caesarean operation. Here, the family court set aside the ex parte divorce and allowed the application of the wife.
The husband then filed an appeal in the Kerala High Court stating that he had remarried after the decree of divorce was granted. And that the application to set aside the decree had become infructuous.
Judgment
The Kerala High Court noted that the appellant had remarried after receiving the notice of the application to certify the decree. The Court held that the remarriage of a spouse would not render the application of the opposite spouse as infructuous. It further held that the application of the opposite spouse must be considered on its own merit notwithstanding the remarriage of the husband.
Ayush Rastogi v. Family Court (2020)
Facts
In this case, the couple married as per Hindu rites and rituals at Lucknow. After the marriage, the husband got to know that their marriage happened without the consent of his wife and that she was forced to marry him and hence, she was not happy with it.
His wife tried to commit suicide but failed due to the family intervention. She even told him that she wanted a divorce from him. Hence, the husband filed a divorce petition on the grounds that his wife is mentally unstable. He also added that his wife’s mother pressurised her and threatened her to stay in the marriage. And this constant duress had worsened her mental state. Later, in the pleadings before the court, the wife had also admitted the same.
Hence, the husband filed for a divorce petition in the family court, Lucknow under Section 12 of the Hindu Marriage Act, 1955 in 2012. The defendant accepted all the averments in her written statement (WS). Later she withdrew her WS and filed another one.
The Principal Judge, Family Court issued notices to the respondent (i.e. his wife) but she did not appear. As a consequence, the Court ordered ex parte against the wife in 2015 and later dismissed the suit. The husband filed an appeal in the Allahabad High Court against the dismissal of his petition seeking divorce.
Judgment
The division bench of the Allahabad High Court mentioned that this Court was directed to summon the record of the lower court. But the record was not available.
The counsel of the appellant submitted that he would argue only on the facts narrated in the judgment of the lower court. Hence, the case was heard in the absence of the lower court records.
The bench observed that there is no sense for the appellant and the respondent to live together and that their matrimonial bond is beyond repair. The Court further held that the appellant is entitled to the relief of dissolution of marriage. Hence, divorce was granted on the grounds of irretrievable breakdown of marriage.
Nanda Dulal Pradhan and Anr. v. Dibakar Pradhan and Anr. (2022)
Facts
In this case, several notices and summons were served to the defendant. The defendant still fails to file the written statement. The Trial Court passed an ex parte order in this case. The defendant applied under Order 9 Rule 13 to set aside this order. The application was refused by the Trial Court and the High Court. The defendant then filed an appeal to the Supreme Court.
Judgement
The Supreme Court held that since the defendant missed several opportunities, the defendant was not allowed to file the written statement. However, the defendant was permitted to participate in the suit and make submissions.
Seema Devi v. Ranjeet Kumar Bhagat (2023)
Facts
In this case, the husband filed for a divorce on the grounds of cruelty under Section 13(1)(ia) and desertion under Section 13(1)(ib) of the Hindu Marriage Act, 1955. As per the procedure, the summons were issued to the wife, which she refused to accept. So, due to her non-appearance in the court’s hearing, an ex parte divorce was granted to the husband.
After 18 months of this order, the wife filed an application under Order 9 Rule 13 of CPC to set aside the ex parte decree. She alleged that neither the summons was issued to her nor she refused to accept it. She claimed that she received the divorce decree only after a copy of the decree was filed for maintenance proceedings. To this, the husband replied that the wife knew about the divorce proceeding and that he had already remarried to another woman.
The Additional District Judge of Delhi dismissed the application filed by the wife on the grounds that the wife knew about the proceedings. So, her contention, of not being duly served, cannot be accepted. The wife then filed an appeal in the Delhi High Court against this order.
Judgment
The Delhi High Court held that the Additional District Judge had rightly passed the order as there was no irregularity in serving the summons. The Court also observed that it is clear, through her admission during the cross-examination, that she had been served with the summons and that she had handed over the copy of the divorce petition to her advocate.
Moreover, the Court observed that Section 15 of the Hindu Marriage Act, 1955 does not differentiate between a contested divorce decree and an ex parte divorce decree. Hence, even in an ex parte decree of divorce, it shall be lawful for either of the parties to remarry if no appeal is filed against the decree within the limitation period.
The Court upheld the legality of the second marriage of the husband, as the appeal was filed by the wife after the limitation period of 30 days had expired.
Jyoti Verma v. Prashant Kumar Verma (2023)
Facts
In this case, a couple filed a joint petition for the dissolution of their marriage. The suit was dismissed on the grounds of non-appearance of the wife (i.e. appellant). The husband after that filed a matrimonial petition in the Family Court. His wife received the notices and appeared to file the written statement. She continued to appear in the Court till the issues were framed. After that, she started abstaining from the Court proceedings. She even failed to avail the opportunity of the cross-examination of PW2. So,12 dates were fixed for the cross-examination, and she still did not appear. Hence, the Court closed the date for the cross-examination.
A month later, the appellant filed an application for the recall of the ex parte proceedings. The application was dismissed as she again did not appear before the Court. As a result, the Court proceedings were heard ex parte and the judgement was pronounced.
The appellant filed an application for the condonation of delay setting up a ground of illness. The medical papers presented by her could not bring out any real obstruction faced by her.
The learned Additional Principal Judge, Family Court rejected the application on the grounds that he had not felt satisfied with the cause shown for the delay.
The Allahabad High Court observed that the learned Court had passed a reasoned order considering all the details of the proceeding and the conduct of the appellant. Since the previous behaviour of the appellant clearly depicts her negligence, she is seen as responsible for the delay in the case.
It was further observed that the case was fixed twice for ex parte hearing and the learned court has taken a lenient view on that. However, the appellant continued to cause delay. Hence, she had tried to take undue advantage of the principle of natural justice that is exercised by courts.
The Court held that if one party negligently or deliberately causes delay, he/she can not be allowed to take advantage of that delay. Though every party should be given the opportunity of hearing before passing the order, it can not be used to defeat the ends of justice.
Conclusion
The principles of natural justice are the basic fundamentals of fair judgment. It ensures fairness and equity in the decision-making process. One of its principles is ‘audi alteram partem’, which means ‘to hear the other party’ or ‘no one should be condemned unheard’. However, sometimes one party suffers as a result of the other party being thoroughly negligent in implementing its rights and remedies, i.e. when a party abstains from appearing before the court. It becomes unreasonable to deprive the first party of a right that has accrued to it in law because of his/her acting vigilantly. In a situation like this, the court can not proceed further without giving an opportunity to the party to present their statements. Hence, the concept of ex parte divorce comes into the picture. It is based on a similar ideology/premise aiming to provide for justice.
Just like any other court proceeding, a divorce proceeding commences when both parties appear before the court. The concept of appearance and non-appearance of parties is mentioned under Order 9 of CPC. It discusses the consequences of the disappearance of a party and the remedies that one can avail of if any order is passed against him/her. If both the parties are not present, then the court dismisses the suit. If the defendant fails to appear before the court, the court sends a summons to the defendant. If the defendant ignores it, then the court will pass an ex parte decree. There are certain remedies provided to the defendant to set aside the ex parte decree. If the defendant presents a sufficient cause for his/her non-appearance, the court may set aside the decree as well.
One can say that a fair chance is given to both parties to present their case. But if any of the parties deliberately fails to cooperate, then they might face adverse effects for the same. Therefore, the court through the concept of ex parte divorce ensures that no prejudice is caused to the rights and interests of any party.
Frequently Asked Questions (FAQs)
How much time does an ex parte divorce take?
Divorce is a lengthy process. Divorce cases in India may take from months to years. The courts try to complete these cases in 3 to 4 years by making speedy trials in contested divorce cases.
What is the procedure for an ex parte divorce?
There is no particular procedure for an ex parte divorce. For this, one has to file for a contested divorce. Then it will become an ex parte only if the opposite party does not appear in the hearing of the court.
What happens if the respondent refuses to accept the summons or notice?
In this situation, the divorce case will be posted for the petitioner’s ex parte evidence. And on the specified date, the statement will be recorded, and the matter will be posted for further orders. Then, divorce decree will be granted by an ex parte order.
In case an ex parte divorce is granted, can the second marriage be cancelled?
When the husband and wife divorce. And if neither of them file an appeal against it within 90 days of the order. Both the husband and wife have all the rights to remarry. But if either of the parties files an appeal within the set time period, then the opposite party cannot remarry till the petition for appeal is dismissed.
In case, the husband and wife take divorce by mutual consent, neither of them has a right to appeal against divorce. So, here, both husband and wife can remarry after the divorce is granted.
In an ex parte divorce, one can file an application to set aside the order only if the absent party has a valid reason to justify his or her non-appearance. If the court finds the reason valid enough, it can set aside the divorce decree. If in between this procedure, the opposite party gets the order to stop the second marriage then the other party cannot marry again. But if the party gets remarried after the ex parte order and then the opposite party gets the order to stop the second marriage. In this case, the second marriage will be considered valid.
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